Quantum Consulting        Specialist in Labor Relations

"WE USE A PRO-EMPLOYEER/ PRO-EMPLOYEE APPROACH"

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             Below you will find Articles that were written by Quantum's Senior Associate 
             Matt Perovic. These Articles were written for the Labor Realations Institue, (LRI)

               “HARD BARGAINING” WITH TRADES & CRAFTS UNIONS

Last month I successfully concluded initial contract negotiations for a Client in Pittsburgh. The union, a traditional “trades and crafts” labor organization (i.e. carpenters, electricians, plumbers), had won a Labor Board sponsored election two to one in the seventy person bargaining unit. Negotiations initially proceeded in a conventional manner: the union had submitted its Master Agreement as its initial proposal. With the realization that the union was not going to deviate one iota from the terms of the Master Agreement, and the knowledge that the company would be severely damaged if it agreed to the restrictive terms of the union’s Master Agreement, the Company’s owners decided that conventional negotiating strategies needed to be replaced with a more aggressive negotiating approach.

Many negotiators consider the trades and craft unions to be the most difficult labor organizations to negotiate with because of the inflexible attitude that these unions bring to the bargaining table and the solidarity the various trades and crafts unions show each other in work stoppages. However, my negotiating experience with the trades and crafts unions leads me to believe that it is their inherent inflexibility when it comes to altering the terms of their Master Agreement that makes them the easiest labor organizations to negotiate with. And that was certainly the case in these negotiations.

My first step, after reviewing the union’s Master Agreement, was to create a counter-proposal that eliminated all references to the International Union and replaced such language with reference to the NLRB certification of the actual petitioner, a Local of the International Union. I replaced the union’s standardized grievance/arbitration procedure with a traditional grievance procedure, eliminated union security and check off, and proposed the Company’s existing health and retirement plans in lieu of the union’s benefit plans. In addition I proposed additional Articles not contained in the union’s Master Agreement such as Management Rights and an Attendance Policy.

The proposals of additional language not contained in the Master Agreement presented the union with a real dilemma. To outright reject the Company’s proposals would generate a failure to bargain in good faith charge, while any negotiations over the additional language would force the union to add language to the Master Agreement which it did not contain and which the union negotiators had no authority to agree to.

Immediately after this negotiations session the management negotiating team met with the bargaining unit (being careful not to engage in direct negotiations with the employees) to inform them about the negotiations. This meeting upset the union even more than the Company’s counterproposals, since the union wanted to maintain exclusive communications with the employees during the negotiations, thereby making sure that the employees heard only the union’s side of the negotiations process. We continued post- negotiation meetings with the employees in the bargaining unit for the remainder of the negotiations, ensuring that the employees knew that it was the union’s inflexibility, especially in the area of the union’s own institutional issues (i.e. union security and dues checkoff) that was responsible for the lack of progress in negotiations. This type of legal, ongoing communications with the bargaining unit is essential to successful “hard bargaining” negotiations.

Because the union had presented its Master Agreement as its initial, and in essence its only proposal, and since it could not deviate from the terms of the Master Agreement in any meaningful fashion, the union soon found itself vulnerable to an unfair labor charge by the Company based on the union’s refusal to bargain in good faith. While this type of charge is seldom filed by a company, it can create a dilemma for a union since any strike/ picketing action that the union might take to force the company to agree to the Master Agreement would subject the union to legal action for damages caused by the union’s failure to bargain in good faith. Furthermore, because the Company showed the employees that the union’s institutional issues were more important to the union than the needs of the employees in the negotiations there was dwindling support for a work stoppage.

By threatening the union with a failure to bargain in good faith unfair labor charge, maintaining consistent communications with the employees in the bargaining unit, and using the knowledge that a trades and craft union has very little room to deviate from the terms of their Master Agreement (due to the pressure placed on the union by companies who are signatories to the Master Agreement to maintain the same wages, benefits, and working conditions within a given industry), the Company was able to take control of the negotiations to such an extent that three months after the Company’s initial counter-proposal, the union notified the members of the bargaining unit that it had no choice but to abandon the bargaining unit because it was unable to achieve its goals in negotiations!

The trades and crafts unions, by the very nature of their inherent inflexibility, are perfect targets for “hard bargaining.” More about the application of “hard bargaining” to other unions in future articles.

                                                                       FAVORITISM

Other than Health Care, which lately is the Number One issue I deal with in every campaign, “Favoritism” with all its definitions has remained the constant or single most non-economic employee issue I have dealt with in almost every campaign I have been involved with over the last twenty years. When I was a union organizer “Favoritism” was a constant employee complaint or lightning rod. As a Management representative I hear that word “Favoritism” over and over again. What is “Favoritism” and how can you rid your workplace of it? Remember, if you eliminate “Favoritism” or its perception, from the minds of the employees in your workplace, the union will have one less argument to make to your employees, when they attempt to organize.

When employees talk about “Favoritism” in their company I can assume there is no recognition of “Seniority” (see LRI, Nov. 2004). However, “Favoritism” is not only a lack of “Seniority,” it encompasses a range of issues in the minds of employees.

One example of “Favoritism” is job or shift movement, or lack of it. I remember an employer I represented a few years ago. Upon being given a plant tour, I asked the General Manager, “How do get from the Assembly Line, to say Shipping & Receiving?” His answer was, “You don’t. If you’re hired to do assembly work, that’s where you stay. That way, we only have to train one person for an opening instead of two!” After that response, I knew I was going to hear from the employees that new hires were being given preferential treatment, or “Favoritism.”

If a company does not have an Attendance Policy that it strictly adheres too, I can bet I will hear how certain employees are disciplined for attendance and others are not, for the same infractions, or “Favoritism.”

If a company has a Disciplinary Policy that it loosely interprets and administers, then the perception of “Favoritism is going to exist in the minds of the employees.

If a company has ranges of pay for like jobs without strict criteria, which most non-union companies seem to favor, I will hear how certain employees are paid more money, even though they perform no better than other employees who do the same job, or “Favoritism.”

When certain employees are given promotions to higher paying jobs, or given management positions, without going through a specific and orderly review process, then I will hear how there is “Favoritism” which needs to abolished.

Now, who do you think is going to tell the employees that it is going to fix “Favoritism?” Answer, the union! The union is going to tell your employees that if they Vote Yes on election day, then the union will negotiate a contract that will eliminate “Favoritism” and all its ugly perceptions in the minds of the employees!

An employer can eliminate or reduce “Favoritism” by changing its procedures while still maintaining control of the process. In other words, by getting rid of the perception of “Favoritism” you will reduce the threat of a union organizing campaign and possible negotiations. Which is better in the long run?

DON’T BE A TWO TIME LOSER!

Iwas recently contacted by a Rockford, Illinois manufacturer and asked to assist their Management Team in opposing a Teamsters Union organizing campaign, which was focused on organizing the 150 plus floor employees who worked in the client’s manufacturing facility. It initially sounded like a pretty routine campaign until the Operations Manager informed me that the Company had defeated this same Teamsters local 18 months ago in a landslide election victory! Suddenly, this campaign to defeat the union became anything but routine!

Statistically, unions win only 38% of first elections (unions win 54% of elections where the voting unit has fewer than 50 employees, but only 27% of elections where the voting unit is 500 employees or more).
However, unions win 72% of second elections! This is because most employers do not understand that a second election campaign must be conducted completely differently than a first election campaign.

Most first election campaigns are won because the employer, within the legal parameters permitted by the National Labor Relations Act, accomplishes two goals: 1) it convinces the employees that the union is not going to be able to accomplish what it has promised the employees and 2) the company is able to convince the employees that the company deserves a second chance to address the issues that caused the employees to seek a union to represent them in their relationship with management. Because there is an ongoing, day-to-day relationship of trust between employees and the management team, if management’s message is properly communicated to the employees, most of the time employees will vote to give management a second chance.

However, after a convincing election victory, one of two situations often develop: 1) management “forgets” to do the Unionproofing© that is necessary to ensure that some union doesn’t come knocking twelve months after the election victory, or 2) the Company gives the employees so much in exchange for an election victory that the employees perceive that by asking the union back year after year the employees will virtually guarantee that they will get a better wage and benefit increase than they would have gotten without the threat of the union. One Chicago based retail company went through four organizing attempts in seven years because they gave the employees too much after each victory!

In either event, when the union appears for the second time, asking for another chance is not going to cut it with the employees who will remember that this is the same song management was singing during the last campaign! Conversely, the company that was overly generous must decide how it wants to make sure that the employees know the same scenario is not going re-occur a second time.

This is why second campaigns have to be conducted with a different attitude and agenda than do first campaigns. This is also why the management team and their representative are seldom able to conduct an effective second campaign by re-packaging the same strategy that was utilized in the initial organizational attempt. Because the Company played the Trust Card in the first campaign, or granted excessive employee demands after the initial election victory, the Company’s message must be totally different the second time around.

Instead of a “Trust Us” or “Promise Them Anything” campaign, there has to be an “in-you-face” attitude, that conveys to the employees the fact that if they join a union, things will actually get worse because of the adversarial attitude that will exist between the employees and management – an “us versus them” scenario. Only then can the “second chance” approach be effectively used by management, since only then will the employees believe that it is the least difficult path to follow.

This approach works best if the Company brings in an “outsider,” with perceived authority to act on the Company’s behalf, who can convince the employees in face-to-face captive audience meetings that this “us versus them” situation will actually occur if the union wins. If the “outsider” is successful in convincing the employees that the Company has hired him/her to implement this hardnosed approach beginning with Collective Bargaining if the union wins, and at the same time, the management team can convince the employees that they do deserve a second chance, then the Company can win a second election.

If the Company is not able to prevail in the second election, its fall back position has to be “hard bargaining” in negotiations to convince the union and the employees that the Company is still in charge. More about “hard bargaining” and effectively “bargaining to impasse” in future articles.