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07/21/2017


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The Political Nature of Collective Bargaining Interactions

By Charles B. Craver




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Many private and public sector employers view collective bargaining interactions with union representatives as entirely objective endeavors. They focus entirely on the issues being explored, completely ignoring a critical factor influencing such situations. Labor organization representatives usually hold positions for which they were elected by union members. As a result, they are affected by the same political considerations that influence members of Congress and state legislatures. One of their primary objectives concerns their desire to be reelected when their present terms expire.

I frequently conduct in-house negotiation training for corporate and government legal departments, and am asked to talk about up-coming collective bargaining situations. The management representatives complain about the number of different persons the union leaders bring to early bargaining sessions, and the drawn out nature of their discussions. More senior individuals often suggest that these factors have gotten worse in recent years, and they do not understand what has caused these developments.

They need to appreciate the political aspect of such negotiations from the perspective of labor leaders - and the fact that the economic power of labor organizations has significantly declined over the past several decades. When the National Labor Relations Act was passed in 1935, 15 percent of private sector employees were union members. After the Congress of Industrial Organizations was formed in the late 1930s and AFL craft unions competed with CIO industrial unions to organize manufacturing workers, groups like the Automobile Workers, the Steel Workers, and the Electrical Workers organized most of the persons employed in these industries. By the mid-1950s, 35 percent of private sector workers were union members. At that time, AFL and CIO unions reunited into the AFL-CIO, and the different labor organizations ceased competing with each other to organize new workers. States began to enact public sector bargaining laws, and public sector personnel began to unionize. As government sector unions expanded, private sector unions began to decline. A critical factor concerned the fact that government employers did not strongly oppose unionization by their employees due to the lack of any profit motive.

By the 1960s, private sector employers began to work more diligently to avoid unionization and to induce currently unionized employees to decertify their union representatives. By that time, representative labor organizations had obtained generous wages, health care, and pensions for millions of persons, and had created an expansive blue-collar middle class. As a result of these developments, the profits of unionized firms had declined, as business leaders had been forced to share corporate profits with their regular employees. A rising desire to advance the interests of shareholders and to increase their own compensation levels induced business leaders to work more diligently to minimize the economic impact of unions.

The United States has always been a highly individualistic society in which personal success tends to be evaluated by one's own accomplishments rather than by group gains, and sophisticated employers began to look for ways to convince workers that they did not need collective union representation. They were supposedly better than their peers, and should not share their elevated worth with their less deserving cohorts. As a result of these anti-union efforts, union membership fell to 23 percent by 1980, despite the organizing successes that had been achieved by unions representing public sector employees. By the end of 2012, overall union membership had declined to 12.5 percent, with private sector membership at an amazingly low 6.6 percent.

As private sector union membership has declined, union economic strength has also waned. Real wages have hardly risen over the past three decades, most defined benefit pension programs have been replaced by defined contribution 401(k) plans, and employees have been forced to accept less generous health care coverage. These developments have increasingly induced many private sector - and even some public sector - employees to ask whether they should continue to support labor organizations. As a result of these circumstances, the tenure of many union leaders has become increasingly tenuous. When they negotiate new contracts, they rarely obtain generous wage increases, and frequently have to agree to reduced pension and health care coverage.

If union officials hope to retain their elected positions, they must work to convince their members that they are still working hard to advance their interests. Since they are unlikely to accomplish this goal through objective accomplishments, they must work harder to make it seem as if they are doing something important. At their early bargaining sessions, they invite local union leaders to attend the meetings, and they strenuously argue in favor of significant benefit increases. They schedule repeated negotiating sessions, and continue to articulate pro-worker demands. Due to the capacity of many firms to withstand employee work stoppages based on their ability to continue to operate technologically advanced businesses and to transfer work to other facilities within the U.S. or in other countries, employees of these firms are unlikely to strike.

If employer representatives are impatient and they endeavor to achieve new contracts on an expedited basis, they often make greater concessions than necessary. They need to be patient and allow the union representatives to engage in their politically motivated histrionics. They should appreciate the fact that during these periods, they do not have to concede anything of real importance. They have to be careful never to embarrass political union leaders in front of their constituents, and should even help those persons to look good in front of those members. They must play the game and wait until the labor leaders are ready to focus on the real issues. By that time, most of the external observers are gone, and the histrionics have ended. Both sides can now explore their respective interests and work to achieve mutually acceptable terms.

Union leaders must similarly appreciate the fact that their increasing use of these political tactics is contributing to the more expansive anti-union employer behavior they are observing. As management representatives become more offended by these union delaying tactics and insulting outbursts, they fight harder to convince their employees to decertify their union representatives. A perfect example of these developments concerned the negotiations several years ago between the UAW and Toyota Motors over working conditions at the Nummi plant in Freemont, California. When Toyota requested labor cost reductions at Nummi similar to those the UAW had already granted to G.M., Ford, and Chrysler, UAW leaders resorted to public displays of power to look good in the eyes of workers whose labor costs they knew they had to reduce. Even though production at Nummi was going well, Toyota simply decided to close the entire plant rather than to deal with such insulting behavior. As a result, several thousand employees lost their well-paying positions.

As budget deficits have affected federal, state, and local government entities over the past few years, political leaders are feeling greater pressure to reduce labor costs by freezing wages, modifying generous pension plans, and forcing employees to contribute more to their health coverage. As these developments have occurred, even public sector union leaders have increasingly resorted to politically motivated histrionics to convince their members that they still benefit from union representation. Contract renegotiations take longer, and labor representatives make elevated initial demands, pound the bargaining tables, and even walk out of on-going sessions. Government representatives view these developments quite negatively, and are beginning to envision the elimination of most public sector labor organizations. Instead of either cutting back on the scope of bargaining laws or eliminating such laws entirely, these government officials should be more patient, and should appreciate the fact that they are increasingly obtaining at the bargaining table the employment terms they require.

My advice to union representatives would be to cut back on the histrionics and delaying tactics they have been increasingly employing. I appreciate the fact they have to employ some tactics to convince bargaining unit employees that they are fighting for them, but they should not go down this path more than is absolutely necessary. On the other hand, I would advise management representatives to be more patient. They must appreciate the fact that such union behavior is a clear indication of labor weakness at the bargaining table. They need to be patient and not take such conduct personally. If they allow the worker representatives to put on these shows and wait until the truly substantive discussions commence, they should be able to obtain the terms they want to achieve.



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Charles B. Craver is the Freda Alverson Professor of Law at George Washington University. He is the author of Effective Legal Negotiation and Settlement(7th ed. 2012 LEXIS); Skills & Values: Legal Negotiating(2nd ed. 2012 LEXIS); and The Intelligent Negotiator (2002 Prima/Crown). He is the coauthor of Skills & Values: Alternative Dispute Resolution (2013 LEXIS), Alternative Dispute Resolution: The Advocate's Perspective (4th ed. 2011 LEXIS), and Legal Negotiating (2007 West). Over the past thirty-five years, he has taught negotiation skills to 90,000 attorneys and business persons throughout the United States and in Canada, Mexico, Puerto Rico, Austria, England, Germany, Turkey, and China. He can be reached at ccraver@law.gwu.edu




Copyright © 2013 Charles B. Craver
Copyright ©   2013  The Negotiator Magazine
The Negotiator Magazine  April 2013