There are two important events in any negotiation. First is how you open and second is how you close.
Put another way, what do you have to consider in the terms of the strategic, tactical and technical issues in negotiations before and as you enter the process and once you’re in it, how you shut it down? This article will look at the opening phase. While this article focuses on labor relations, the principles are the same for any negotiation including alternate discipline or case settlements before MSPB or EEOC.
Part 1 addresses the conceptual approach to opening bargaining and the critical questions management must answer before bargaining anything. Part 2, will address the technical issues that impact the opening of a negotiation.
Before you do anything else, you must do a little talking with yourself. Please be quiet about this. In a cubicle government, certain judgments may be made about you if you’re not. The first question to ask is, “Why am I getting into a negotiation?”
There are a surprising number of possible answers to this question. The most common include management wanting to make a change in something that affects working conditions; management wanting to reopen an old contract to make needed or desired changes; or the union wanting to open an old agreement to get something. More emotional reasons include “the law requires it!” and “We’ll file a ULP if you don’t!”
What does the Agency want out of the bargaining and who will make the necessary decisions? Make a list of goals and objectives that may be achieved and prioritize them. Get agreement from your principal(s) on these objectives and as clear an idea as you can of your charter. Your charter and the claimed management goals may change over the course of negotiation and it’s the chief’s job to keep careful track of those changes.
It is vital to know who will call the shots. Realistically, that may change from issue to issue. A line manager may not care or consider a very high priority how much work the Human Resources people have to do to announce a promotion but might be upset with an expanded flexible schedule provision.
If the chief negotiator works in HR, he or she may not have a happy homecoming after trading the HR Director’s prerogatives. The teeing up of management decision making is an art form. When it gets done, who plays and how the lines are drawn is a more complex negotiation process than any union-management bargaining could ever be. You don’t need to know a final answer before you go to the table but a range of acceptability to the owners of each decision is crucial.
Who gets what leverage by the simple act of making a request to negotiate or, in the case of change bargaining, providing notice of the change? Whatis.com’s definition of leverage: “…a frequently used business or marketing term, leverage is any strategic or tactical advantage, and as a verb, means to exploit such an advantage, just as the use of a physical lever gives one an advantage in the physical sense.”
Everybody involved gets some form of leverage in a negotiation. Leverage not only exists in a situation by virtue of the situation itself, it can be created by the ability of one or more of the parties to anticipate the other’s expectations and work them. In Federal sector bargaining, leverage frequently arises from the ability of a union to delay a change, make changing something administratively burdensome or require tradeoffs between organizational units, a grim prospect in agency politics. Management often gains leverage by limiting negotiation in the exercise of a statutory right, holding up implementation of a benefit to employees to gain advantage or offering a union benefit (as opposed to an employee benefit) in exchange for a management gain.
Of course, no discussion of leverage occurs between the parties. Leverage is implied, threatened or used but rarely, if ever, discussed.
What are the parties expectations for the negotiation? Both come to the table in hope of gaining or losing something. A demonstration of unassailable logic, unarguable correctness or even rightness or wrongness will not win the day. Get over it. I once bargained with a person who spent an entire day paraphrasing the same argument which, I believe he believed sincerely represented the right thing to do. At the end of the day, his lawyer whispered to him (but loudly enough for me to hear), “I think Bob understands what you’re saying, he just doesn’t agree with you.” If you think the union team will fall to its knees and beg to accept your proposal because of the brilliance of your presentation, you may be in for some personal disappointments in bargaining not to mention long days at the table.
Bargaining, while exceedingly complex in its execution, may simply be defined as the shaping of the expectations of all involved. Changing expectations is neither an easily accomplished nor short-duration effort. Entering bargaining, one must expect it will take time to lower the expectations of some while raising the expectations of others.
I can’t stress enough how much time and thought should go into preparing for this aspect of bargaining. Both the agency’s and the union’s expectation of outcome should be part of your consideration. There is a direct consequence to misreading and/or failing sufficiently to pay attention to expectations. In labor relations, you’ll end up at impasse or interest arbitration. In settlement negotiation, you’ll end up at hearing. Either of these may be considered a failure by the agency in many cases. While negotiating, you can steer the bus. At impasse, you hand over control, direction and frequently outcome to a statutorily established third party who rarely understands your needs and far worse, may see their role as creating a leveling process.
What role is perceived and played by management’s chief negotiator? One of the reasons the Federal unions were so eager to leap into the Clinton administration’s “Partnership” theory of bargaining was to force a consensus approach on the process.
In some agencies, this resulted in many and therefore no one representing the agency, giving the leverage the unions wanted from the new process. It all sounded so positive, so attractive, so conflict avoiding. Face it. When interests differ, honest advocacy is not as hypocritical as “pie in the sky” claims that we are all in this (negotiations) together. Not once in the 90s, or ever for that matter, did I see the union embrace a collegial approach for its side of the table. Federal unions are not democratic organizations.
A chief negotiator must satisfy a number of agendas. The trap lies in thinking you are or must be in control at all times. The smart chief identifies the most powerful players on management’s side of the table and finds an approach that produces their support. Also critical is identifying the perceived roles on the other side of the table and how you might deal with them.
Are you adequately prepared? Preparation is the crux of changing expectations. The more you know, the more you can affect the way your union counterpart is able to approach the process. Facts limit posturing. Thorough research trumps mere belief. In future articles, we’ll look in great detail at preparation strategies and goals.
What can you find out before bargaining starts? If you can, avoid a full blown bargaining session as your first contact. An informal discussion with the union president and/or designated union chief negotiator to identify and resolve process issues should be pursued, if possible.
Keep it cordial and relaxed. You’re looking for hints about expectations, likely tactics and the overall approach the union plans to use. You’ll also find out if there are ancillary problems such as ground rules, information requests, or other issues that can gum up the works. This meeting is not the time for posturing, threatening or demanding. You are in listening and perhaps accommodation mode on unimportant comfort items but more about this in Part 2.
In Part 2, we’ll look at the technical side of bargaining such as ground rules, info requests, notice etc.
As usual, the opinions expressed above are mine alone and some would ask, “Who else would admit to them?”