1. Was the company bargaining in good faith? Explain your answer.

 

Language in the company’s proposals clearly indicate refusal to make any concessions: (260)

1. Total control…no participation…would not adopt it
2. Absolute right…relinquish the employees’ statutory right to notice in bargaining…only by express contract provision… there was not such limitation
3. Waived the union’s right
4. Prohibition against a strike for unfair labor or unfair employment practices
5. Company intended to reserve exclusive authority
6. Company’s sole discretion
7. Company rejected a union proposal that dues checkoff clause…
8. Company rejected a union proposal… company was not allowed to discriminate against union members

 

Duty to bargain in good faith – from text

 

The criteria established by the board includes the following: (187)

1. Active participation in deliberations with an intention to find a basis for agreement

2. A sincere effort to reach a common ground

3. Binding agreements on mutually acceptable terms

 

The board found indication of less than good faith when employers…when an employer refused to make counterproposals. (187)

 

The amendments also clarified what was meant by bargaining: …to confer in good faith with respect to rates of pay, wages, hours of employment, or other conditions of employment… (187)

 

Merely going through the motions without actually seeking to adjust differences does not meet this stipulation. (187)

 

A totality of conduct test is applied to determine the fulfillment of the good-faith bargaining obligation.  If, in total conduct, a party has negotiated with an open mind, a sincere attempt to reach an agreement, isolated acts will not prove bad faith. (187-8)

 

Boulwarism is a “take-it-or-leave-it” bargaining technique….Using this technique, the company presents a comprehensive contract proposal that, in its opinion, has included all that is necessary or warranted. This form of negotiation eliminates any need to compromise in the employer’s mind….This practice places the employer in the untenable position of not being able to negotiated...Involvement is a bilateral procedure, allowing both parties a voice in the agreements reached. It is in direct opposition to the intent and purpose of the act for a party to assume the role of decision maker; an exchange of options must be presented and received with an open mind.(188)

 

Surface bargaining, that is, simply going through the motions without any real intention of arriving at an agreement…Surface bargaining can occur when a party has rejected a proposal and offered its own and does not attempt to reconcile the differences, or it can be used when a party’s only proposal is the continuation of existing practices…The NLRB uses these factors when considering an unfair labor charge for surface bargaining:

1. Prior bargaining history of the parties
2. Parties’ willingness to make concessions
3. The character of exchanged proposals and demands
4. Any dilatory tactics used during negotiations
5. Conditions imposed by other party as necessary to reaching an agreement
6. Unilateral changes made during the bargaining…..
7. Communications by employer to individual employees
8. Any unfair labor practices committed during bargaining (188-9)

 

Although the National Labor Relations Act does not require a party to make concessions, courts have consistently viewed a willingness to make concessions as evidence of good faith. Parties are encouraged to engage in auction bargaining, in which parties state their position, make proposals, and then trade off on those proposals to arrive at agreeable terms. Refusal to make any concessions, evidenced by inflexibility on major issues, can be held as bad faith. An intransigent attitude on some issues may be acceptable if bargaining continues on other issues (189)

 

Cited:

Carrell, Michael R., and Christina Heavrin. Labor Relations and Collective Bargaining: Cases, Practice, and Law. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2007.           

 

 

 

2. Which company proposal was the most important in determining the “in good faith” issue?

 

All?

 

 

 

3. Suggest how principled negotiations techniques could be utilized in this case.

 

Principled negotiations… the essential element of the process is to be “hard on the merits, soft on the people.” The goal is to decide the issues presented… on their merits rather than through the traditional haggling…theoretically result in a wiser agreement through a more efficient process…Key element…is to separate the people from the problem, an approach that ensures a focus on interests, not on positions… (231)

 

Neither party can convince the other of the legitimacy of its position without understanding the other party’s perception of that position. Therefore, the first task of a negotiator is to understand the other party’s perception. It is best to discuss these perceptions openly and to understand their importance to both parties. (231)

 

Negotiating parties must learn to communicate…. Too often they are not really trying to converse but are simply going through the motions. (232)

 

Interests – The parties are to focus on interests, not on positions.  In general, the parties come to the negotiating table with a laundry list of demands. Because a party has invested time, energy, and thought in that list, there is a strong tendency to defend it no matter how absurd it may be.  The parties are to develop an understanding of their real desires, concerns, and interests rather than simply list demands… Both sides have multiple interests, and if those interests can be identified without the parties’ hardening into a particular position, conflict is eliminated. (232)

 

Once interests are identified, the third objective is for both parties to seek as many options as possible in solving their conflicting interests. More often that not the interest of both parties can be satisfied in numerous ways. To seek numerous options, both parties must be willing to accept that there is more than one right answer. (232)

 

Objective criteria – have the validity of each party’s proposals judged by objective criteria… ask for expert advice when discussing technological changes… (232)

 

Cited:

Carrell, Michael R., and Christina Heavrin. Labor Relations and Collective Bargaining: Cases, Practice, and Law. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2007.