Issues to Focus On in Bargaining, Part One: Twelve Good Ideas That Will Enhance Your Bargaining Efforts
If you’re getting ready to negotiate an agreement with a Federal union, whether ground rules, impact and implementation (I&I) or a term contract, here are some concepts and processes that I have found useful. Some you may recognize, others may be new. In any case, I hope you’ll find these two articles helpful.
1. Figure Out a Practical Scheme to Value Issues
Back when some U.S. Attorneys had bargaining units of non-lawyers, I worked with an Assistant U.S. Attorney who was assigned as chief negotiator for term bargaining. He developed a system to value the worth of an article, section or issue to union and management. While simple in concept, it was harder in execution as there was guesswork involved to some degree regarding the union’s proposals and, as you probably know, getting management to prioritize is like pulling every tooth in someone’s head without Novocain.
First, he separated each party’s proposals (and positions if the party had no written proposal as yet but had expressed a stance at the table) into discrete stand alone concepts. He numbered them M1 to M5 if management and U1 to U5 if union. I think the most important was 1 and the least 5 but it doesn’t matter as long as you know what end of the scale is worth more. He then grouped related proposals, for example, put the "Leaves" or "Staffing" related stuff together. Bargaining related matters as you start makes the negotiation more orderly and focused. As negotiations progressed, he began to compare the value of unrelated proposals moving in the direction of deals, packages or an overall end game. This is a very effective tool if followed persistently.
2. Hold the Most Valuable Issues for Later Discussion
Let me start by saying that if you can get what is most important to you early in a negotiation at little or no cost, go for it. Most of the time, that won’t happen. Since bargaining is about shaping expectations and expectation shaping is usually a lengthy business, you will find yourself identifying the low value (to you and them) stuff and wanting to get it off the table. If it is really worthless in trade, usually issues like the preamble, unit description and other innocuous stuff, sign off on it early to get the ball rolling and put some initialed agreements in that pile. If you followed the above advice on valuing issues, make your deals and trades progressively more complex until you get to the stuff that really counts.
3. Always Keep 1st Line Supervision Foremost in Your Considerations
Unfortunately, most managers who make bargaining calls are fairly senior. Issues that matter to them usually relate to the cost of a proposal or its impact on making changes. Frequently forgotten is language that makes a supervisor’s job more difficult, takes more time to get a thing done, requires extra steps and/or means more paperwork. First line supervisors are critical to Agency success but they are frequently the last to know about an initiative (the union will know before they do) and not asked how language developed in bargaining might affect them or productivity. Put together a supervisor’s advisory team for bargaining and ask them to identify the union or (yes) management proposals if agreed upon will cause them trouble. Don’t rely on your own opinions, trust theirs.
4. Put a Few Unpalatable Institutional Union Proposals on the Table
On a relative scale, an Agency negotiator should care much less about what the union wants for itself than what will improve working conditions for employees. Unions often want language that favors employees with problems rather than the main stream workforce. The union knows it can get dues from an employee that management is trying to correct or get to perform better so it focuses on recruiting them. It is one of the reasons many Federal units have very low dues withholding numbers. Employee with problems requiring disciplinary or performance attention makes up a very small percent of the Federal workforce, maybe 5-8%.
If your dues withholding is 10-20%, you’re in this category. In addition to encouraging the union to pay more attention to the average Federal employee who comes to work every day and does a decent or better job, you may want to discourage the union’s belief that dues are either to be paid to the National in taxes, used for arbitrating bad cases or for the union Christmas party. All Federal unions believe they are entitled by law to free office space, furniture, computers, files, phones, email, faxes, copies, official time and just about anything else they can think of to want. Put proposals on the table which make the union accountable for the actions of its officers and stewards, require it to share or assume costs, and to generally act responsibly. The abject fear on their part of parting with some cash will often make them more agreeable to a package deal for things important to you.
5. Do Not Engage in Anecdotal Bargaining
A favorite union approach is to spend a lot of time on how Harry got mistreated and abused and how their proposed language will put an end to such nefarious deeds by management. Don’t get sucked into the black hole of trying to address Harry at the table. For one thing, your discussion of Harry and the privileged information management may have about the case(s) not only will likely violate the Privacy Act but more likely will keep you at the table endlessly. Listen politely and then move on. Whatever you do, don’t get caught up in an eye for an eye payback by citing the union’s or one of its officer’s prominent gaffes. None of this behavior gets anybody anything but a very long day at the table.
6. Listen to Every Word
It is very important to assess the use of language by the union at the table. Whether they are precise or imprecise, phrase things carefully or not and how they describe an issue can say a lot more than perhaps they intend. Hopefully you’ve selected a smart note taker who can spot nuances, consistencies and inconsistencies. Your questions and statements should be designed to test hypotheses you make about a union stance on an issue. Things like importance overall as well as the value to them of certain language should be constantly tested in the discussion. Just as you should never say anything unscripted, so you should look carefully at both their scripted and unscripted remarks.
By the way, a group of labor relations folks in the Northeast expressed an interest in having me offer an open enrollment Advanced Bargaining Course (two days) in the Fall. There will be some additional room in the class. If you are interested in attending and would like to get more information as plans firm up, please use the email form using the link above this article and let me know.
As always, the views expressed above are mine alone.