Labor union negotiations are an interesting dynamic. An employer who has been through negotiations before understands the dynamics. An employer who recently lost an organizing campaign will be shocked at the negotiating culture, expectations, and rules – both written and unwritten. Austin Legal navigates employers through negotiations, whether for first contracts, reopeners, or renegotiated agreements. Matt Austin also provides consulting services to companies who prefer to negotiate their own collective bargaining agreements.
What Do Negotiations Look Like?
Whether negotiations are for a first contract, a reopener, or for a routine renegotiated contract, the atmosphere is largely the same. Management representatives, frequently Austin Legal and a select few managerial employees, sit on one side of a table. Labor union representatives and employees who are on the bargaining committee sit on the other side of the table. Ground rules are established that outline dates, times, and location of bargaining. Written proposals are exchanged. The union and management separate into their own rooms to privately discuss the other’s proposal and make modifications to their own proposals. This process is repeated until at some point negotiations end.
As my grandfather used to say while watching the Cleveland Browns, when a quarterback passes the ball, there are three things can happen and two of them are bad. Similarly, once negotiations begin, there are five things that can happen and four of them are bad for unions. Negotiations end by the parties either coming to an agreement, coming to an impasse, the employer withdrawing recognition of the union, the employees decertifying the union, or the union disclaiming interest in the employees and walking away from representing them.
Mandatory and Permissive Subjects of Bargaining
Regardless what type of contract is being negotiated, there are mandatory and permissive subjects of bargaining. Mandatory subjects of bargaining include wages, benefits such as health care and pension, grievance and arbitration procedures, contract length, seniority, union security clauses, strikes and lock outs, management rights clauses, and other terms and conditions of employment. Neither the employer nor the union can refuse to bargain over mandatory subjects of bargaining.
Permissive subjects of bargaining, however, are topics that either party can refuse to bargain over. For example, the definition of the bargaining unit, internal union matters, terms and conditions of employment for management employees, and the use of a court reporter at bargaining. Parties are can refuse to bargain over permissive subjects of bargaining, fully bargain to agreement, or begin bargaining and cease bargaining that topic at any time.
The analogy of looking like a deer in headlights is an understatement of what Austin Legal sees when it represents companies negotiating first contracts. Not only do employers need to learn new labor relations terminology, laws contained in the National Labor Relations Act, and National Labor Relations Board procedures, employers are not emotionally prepared for first contract bargaining.
Employers are often unprepared for the escalated tension involved in first contract negotiations because they do not understand the emotional dynamics at play. Unions are victorious after a hard-fought organizing campaign – and will remind management representatives of the win at any opportunity they can. Companies, on the other hand, are angry that they must give up control of the company that they have successfully built and ran for many years.
First contract bargaining is fueled by emotion and negotiating with emotion does not yield the best result. An experienced management negotiator like Matt Austin is beneficial in first contract bargaining. Employers have one chance at a first contract, and the clauses contained in a first contract are critical for the future viability and success of the company. Once a clause gets in a contract, removing it or getting a more management-friendly clause in renegotiated contracts is an extremely difficult endeavor.
Decertification After One Year | First contract bargaining typically lasts longer than other bargaining. Matt Austin has been involved in many first contract bargaining that has lasted for over one year. The employer and union do not meet all day every day for a year when this happens. The parties’ schedules, other contracts, and other business creates gaps in bargaining. However, the parties must meet at least a few times each month to avoid surface bargaining or bad faith bargaining unfair labor practice charges.
Employees who just voted for union representation – often as a result of promises like increased wages, benefits, and job security – become restless when the union cannot reach an agreement with the employer after months of bargaining. This is especially true since unions typically collect initiation fees and monthly dues even though the employees are not covered by a collective bargaining agreement, yet.
The restless employees and/or the employees who never wanted a union in the first place can initiate a decertification petition to get rid of the union. The decertification petition must be filed at least one year after the first day of bargaining for the first contract. With enough signatures, the petition is submitted to the National Labor Relations Board and a decertification election is schedule. Decertification petitions must be completed without employer assistance. Since unions file unfair labor practice charges alleging employer assistance in virtually every decertification proceeding, receiving competent legal advice from Austin Legal is recommended when first contract bargaining lasts more than six months.
Collective bargaining agreements typically run for three years. Sometimes longer, sometimes shorter. This means that the majority of the terms and conditions of working at a unionized facility are already determined for several years into the future. However, there are times when certain provisions can be revisited before the expiration of the contract. This revisit of a certain clause is called a reopener.
Reopeners typically involve wages. Wage reopeners occur more frequently when an employer’s business cannot afford to give customary raises in the first or second year of the contract. However, if specific economic milestones are reached during those first two years, then the contract will be reopened, and a new wage scale for the final year of the collective bargaining agreement will be negotiated. Wage raises are not required during this type of reopener. The only requirement is that both sides bargain in good faith over wages.
Collective bargaining agreements typically run for three years. Shortly before the contract expires, the union requests bargaining for a new, renegotiated contract. Employers must agree to bargain or face unfair labor practice charges alleging a refusal to bargain. Renegotiated contracts are usually less emotional and hostile than first contracting bargaining because the union and the employer have learned to work together.
Employers usually don’t realize that renegotiated contracts rarely include clauses more beneficial to the employer than what was contained in the previous agreement. In fact, employers are prohibited from seeking lower wages and benefits in
renegotiated contracts unless the employer shows its financial records to the union to prove that the employer cannot afford to continue paying the level agreed to in the previous contract. Successful renegotiated contracts sometimes simply limit the expansion of union involvement in the daily affairs of the company and keep total labor rates aligned with corporate projections.
Although first contract bargaining has its challenges. Renegotiated contract bargaining has its own challenges. Because the union knows the company’s business more intimately with each renegotiated contract, unions have a better understanding of how to chip away at an employer’s ability to freely run its company. Skilled negotiators like Matt Austin prevent unions from running your company and keep corporate objectives a reality.