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What Are Some Common Mistakes Made in Collective Bargaining?

The author discusses some of the most egregious mistakes he’s seen made in the collective bargaining process during his career.

I have been privileged to have a front row seat for collective bargaining negotiations for numerous collective bargaining agreements over the course of my career.

Most of the time I was acting as a mediator, and occasionally I was on the management or the union side. Whichever seat I was taking, I came to realize there were common mistakes made during bargaining. The interesting thing is that many of these mistakes were unforced errors – things that could have easily been avoided or quickly fixed at the table before they became major issues. Many of these mistakes were made both by seasoned and novice negotiators. 

In discussing these mistakes, they are not in any priority order.

Some negotiators make multiple mistakes and others may make only one, but it may be extremely serious.

There are simple ways to avoid most of the mistakes cited, as long as the negotiators know what they should be trying to avoid.

This is not a compendium of all the mistakes I’ve seen at the bargaining table; it’s just an attempt to discuss ones that seem to have recurred during multiple negotiations. 

Mistake #1 – Not Being Prepared with Your Business Case

This is by far the most common mistake.

Most negotiators work hard to develop their proposal language. What they don’t work as hard on is what arguments they are going to make to support the business case for their proposals.

Just because you have language you fell in love with doesn’t mean the other side will feel the same way. It’s just as important to develop a strategy to support your proposal as it is to write it in the first place.

The strategy should include not just arguments but also statistics or other factual data that will help persuade the other side.

Also, the work you put in to develop this information will help in supporting your proposal before the Federal Service Impasses Panel, should agreement not be reached at the bargaining table.

Mistake #2 – Offering Something You Can’t Deliver

Most collective bargaining is representative bargaining. The bargainers at the table represent someone else. They are not bargaining on their own behalf as you might if you were buying a car for yourself.

The management negotiators represent their Agency and, in most bargaining, have a direct line to senior management and receive direction from them on what can and cannot be agreed to.

The union negotiators have more leeway. Ultimately, they report to the bargaining unit, however, they normally don’t report directly to the bargaining unit on the specifics of what they can or cannot agree to at the table. If what is agreed to is not supported by the bargaining unit, the various union negotiators may be voted out of office. 

It is apparent that sometimes negotiators offer something at the table that subsequently is not approved by their respective constituency. Once the offer is made it becomes difficult to retract it.

Saying that senior management will not support the offer undermines the negotiator. Any offer should be checked with the negotiator’s constituency before it is submitted to the other party. Telling the other side, “I agree with it but I couldn’t get approval” also undermines the chief negotiator. Telling the other side you don’t know if you can agree to their proposal is very different from making a proposal and then having to withdraw it because you couldn’t get approval for your own offer. 

Mistake # 3 – Making it Personal

Bargaining can become emotional hand to hand combat. It is not unusual for negotiators to resort to harsh, and sometimes inflammatory, language at the table.

There should be an ‘e’ in bargaining to account for all the ego that can be displayed at the bargaining table. Personal attacks are not uncommon and, in some bargaining, they are quite frequent.

A basic negotiating tactic is to personally attack negotiators on the other side. The intention is to cower the other side into giving in.

The problem with this approach is that the subject of the attacks is not likely to give in or forget being personally attacked. These hard feelings can backfire by damaging the relationships of everyone involved and reducing trust between the parties, leading to more difficult bargaining and retaliation in kind. 

Sometimes the attacks come as expletive laced language meant to intimidate the opponent. One negotiation I was involved in had as a ground rule ‘any use of profanity automatically resulted in a $1 fine to be deposited in a jar.’ These fines were to be used to underwrite the cost of a party once agreement was reached. At the end of bargaining there was over $150 in the jar. However, it became more of a joke to make a deposit in the jar and lessened considerably the impact and use of profane language. 

Mistake # 4 – Over Promising to Your Constituency 

As discussed in Mistake # 2, collective bargaining is representative bargaining. Unfortunately, sometimes chief negotiators overpromise what they can deliver at the bargaining table.

Overpromising leads to having to go back to your principal and ask them to readjust their expectations of the bargaining outcomes. Overpromising results in your constituency not having trust in what actually may be a very good resolution of the bargaining. It is better to under promise and over deliver. This approach gives you more leeway at the bargaining table to come to an agreement.

Mistake # 5 – Losing Your Cool 

Not infrequently, negotiators will engage in heated exchanges at the bargaining table. Sometimes these exchanges result in long standing dislike of the other side.

It is amazing to hear the vitriol expressed in caucuses about individuals on the other side of the table. There can be a significant amount of emotional content in bargaining. To put it mildly, people can easily get very upset as a result of nasty things that are said at the bargaining table.

Shouting matches are usually never won by one side or the other but they more often leave deep seated wounds. On more than one occasion, I have had to separate both sides after an ugly altercation. Sometimes negotiations must end for the day or for a number of hours to allow both sides to cool off.

Unfortunately, often times this is not just “blowing off steam” leading to better understandings but instead these events are the beginning of bad relationships which endure long after the bargaining has concluded.

If you decide that yelling obscenities or engaging in name calling helps your position, think again. In my experience such activities don’t lead to the other side breaking down and capitulating but instead they are much more likely to dig in even deeper in their own position. 

Mistake # 6 – Saying Things That Come Back to Bite You

At one negotiation, the management’s chief negotiator, while at the table, told the union the reason it did not want to agree on a change that management wanted to make was because the bargaining unit employees were lazy. This was an incredibly disruptive statement leading to a break down in bargaining for a day.

The problem this caused was, even if there were legitimate reasons for the change, the union was no longer listening. Did management think the union would agree – yes, our employees are lazy.

Denigrating the other side is never an effective strategy in my experience. More often than not, it leads to hard feelings and the loss of an opportunity to engage in meaningful discussions. 

Conclusion

These are some of the mistakes I have seen at the bargaining table. It is not an exhaustive list and there are many more.

Every negotiator makes his or her share of mistakes. There is no such thing as the perfect negotiation or the perfect negotiator. The real question becomes how you recover from the mistakes that are made. That is the true sign of a good negotiator. 

About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.

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