Such employers have no interest in reaching a compromise; they’re intent on forcing concessions or breaking the union. Often they never move off their concessionary proposals. Finally they declare impasse and implement their “last, best, and final offer.”
Winning against an employer like this requires a multi-pronged strategy. Members will need to gather public support and wage a fight that affects the employer’s production or services.
But in this article, we’ll cover another element of a winning strategy: offensive bargaining.
In good faith
How little can employers get away with, and still claim to be bargaining? The National Labor Relations Act doesn’t require much.
The employer and the union must meet at reasonable times and confer in good faith over the bargaining issues. But the law says this obligation to bargain “does not compel either party to agree to a proposal or require the making of a concession.”
Smart employers who want to force concessions will meet often with the union and argue over the issues—but will never move off their major demands.
Bad-faith bargaining is hard to prove. But there are methods the union can use to push an employer to expose its bad faith by violating its obligations.
One legal point helps the union: the employer is required to provide all requested information that enables the union to make an intelligent decision about the employer’s proposals.
What is impasse? The law says, “If after sufficient good faith efforts, no agreement can be reached, the employer may declare impasse, and then implement the last offer presented to the union.”
In other places the law often refers to impasse as a point where both parties see that no further agreements can be reached.
The rules don’t treat the employer and the union equally. An employer can declare impasse and implement its final offer, cutting pay and benefits. The union can never impose its final offer.
What can the union do? It can strike, but that means union members risking their jobs and livelihoods. The employer risks nothing by declaring impasse—unless the union can prove it hasn’t met its minimal legal obligations.
Bad-faith bargaining, such as declaring impasse too soon, is an unfair labor practice, which gives workers greater legal protection in case of a strike or lockout. For example, in last year’s lockout at Allegheny Technologies, such a charge became a big point of leverage for the Steelworkers to push the company back to the table, because if the Labor Board found bad faith, ATI would be on the hook for back wages.
Avoiding an impasse
Early in negotiations, a union must analyze the employer’s intentions. If it appears that this employer intends to force concessions, the following tactics should be applied:
- The union must make sure it has many proposals still on the table when the contract expires.
Do not get into a position where the only items left are the employer’s proposed concessions and a few union monetary proposals.
- The union must never simply say “no” to the employer’s proposals, no matter how bad they are.
It must always be ready to bargain over them and to offer alternatives—but these alternatives do not have to include agreeing to any concessions.For example, suppose the employer has proposed wage cuts, claiming that companies making similar products have higher productivity.
The union could counter with a proposal to address this productivity problem by repairing and updating equipment. It could provide a detailed list of what’s wrong with each machine and what new equipment the employer should buy.
Presenting a long, detailed proposal ensures that there are always further changes the union can make—hampering the employer’s ability to reach impasse.
- The union must be willing to meet, but it does not have to engage in marathon bargaining.
Just as an employer can drag bargaining out, the union can choose to discuss just one or two issues at a time, and schedule the next meeting several weeks later.
- The union must take very good notes, especially on any threats or comments the employer makes when rejecting compromises.
- The union must make aggressive use of the employer’s obligation to provide information.
Failure to provide information is an unfair labor practice—which limits the employer’s right to declare impasse.
Request all the info
Here’s an example: During negotiations, industrial supplier Kennametal claimed it needed concessions because of international, national, and “internal competition.” This was also stated publicly. Without the concessions, the company said, it didn’t think it could survive.
By “internal competition,” the company meant that it was considering moving the work to other facilities it owned, where the wages and benefits were lower.
Since the company was basing its demand for concessions on this “competition,” the union demanded information so that members could make an intelligent decision. The union asked for a list of all Kennametal facilities, including:
- the jobs and operations performed at each facility
- the types of machines used in production, and the ages of these machines
- the wages employees received for each job
- the benefits employees received, including but not limited to health insurance (with specifics on the plan and costs to employees), life insurance, dental, vision, holidays, vacation schedule, sickness and accident pay, long-term disability, and sick or personal days
- for each unionized location, a copy of the union contract
The union also requested a list of competitors, both worldwide and in the U.S., with the same detailed information. For each product line, the union wanted to know who was the competitor and what was its price per piece.The employer provided a little bit of the information, but failed to supply real details. Management didn’t want to give the union detailed information on wages, hours, and working conditions in its non-union plants—and did not have the information for its competitors’ facilities.
When the employer declared impasse, this failure to provide information became a big part of the union’s proof of bad-faith bargaining.
This was just one of many information requests the union made, forcing the employer to provide facts to back up every demand and statement. When the employer disciplined members for demonstrations and other actions, the union filed more Labor Board charges.
Eventually the employer backed off from the concessions.
This piece first appeared on Labor Notes.