Perhaps there is something new under the sun
Mention the term "labor negotiations" and you are likely to get predictable reactions.
Front-line supervisors, managers and executives may sigh, feel their blood pressure rise, and wish they were thinking of something more pleasant, like dental surgery.
Rank-and-file union members and their representatives might display similar reactions, but for different reasons. Both sides would probably agree that labor negotiations often seem to be an unnecessarily long, arduous process – and that there must be a better way.
The Federal Mediation and Conciliation Service (FMCS), an independent agency of the US government that promotes sound and stable labor-management relations, believes there is a better way: one designed to streamline the process while recognizing the realities of the give-and-take of bargaining. The agency is championing a new concept called Enhanced Conventional Negotiations (ECN), designed as a blend of approaches incorporating the best of many different schools of thought.
Historically, it has been the role of FMCS to assist parties in reaching agreements at the bargaining table so as to avoid work stoppages. In the 1980s, FMCS advanced and promoted "interest-based," or "win-win," bargaining as a way to improve the process. After some years of experience, many advocates and FMCS representatives would concede that, while not a total failure, interest-based bargaining did not necessarily improve the process nor the results achieved at the bargaining table.
A different approach
ECN takes a different approach. It recognizes that the primary value of win-win bargaining is the extensive exchange of information it involves. It also recognizes that, for a variety of reasons, it is likely that, at some point, the ordinary give-and-take of negotiations will occur. The key to ECN, however, is that full information exchange occurs, and issues are identified and discussed by both parties prior to the formulation and exchange of bargaining proposals.
The theory is that a tremendous amount of time is wasted in the labor negotiation process due to the parties’ failure to understand the needs and motivations underlying a particular proposal, regardless of who may advance it. If information is exchanged and issues discussed before proposals are formulated, negotiations will be shortened considerably.
ECN includes six steps.
In Step One, the parties are fully trained in the process by FMCS.
In Step Two, which might occur over the next several weeks following training, the parties each prepare their issues.
In Step Three, the issues and interests of the parties are exchanged and discussed, with the assistance of an FMCS mediator.
The fourth step involves the parties each developing their bargaining proposals based on their particular interests, but with full knowledge of the other party’s interests and issues.
Step Five is the exchange of actual proposals with the rationale for each proposal being explained, again with the assistance of a mediator.
Step six is the commencement of conventional negotiations.
Information exchange key
The most important step in the process is step three, where the issues and interests of the parties are exchanged and discussed. This should be expected to take at least one full day and will involve a description of each side’s issues, a discussion of the interests of each party, and identification of information needs that must be addressed to move forward. The exchange of information at step three and the requirement to clearly articulate the rationale for proposals in step five are designed to avoid the misunderstandings that can contribute so much delay to the conventional bargaining process.
In some respects, ECN appears to follow the "Need Theory" of negotiations advanced by Gerard Nierenberg, author of The Fundamentals of Negotiating and considered one of the world’s foremost experts on the topic.
Nierenberg’s approach was based upon the fundamental assumption that, particularly in labor negotiations, the parties could not truly achieve success unless and until they adopted an approach that attempted to discern and address the needs of the opposing party
After all, labor negotiation is not a one-time deal like buying a car, where one party can be identified as a clear winner and the other a clear loser. Because labor negotiations occur in the context of an ongoing relationship, where the fate of both parties are in most respects inextricably intertwined, both parties are best served by understanding and attempting to address each others’ needs.
This is really no different than the approach taken by many non-union employers. They understand that paying competitive wages and benefits is not only a fair thing to do, but is also absolutely necessary to retain and attract the highest-quality employees. They understand that, in some meaningful way, employees must have a voice in the organization if they are to understand and advance the mutual goals of the organization and its people.
Such employers and their employees understand and are committed to the principle that what is most important is developing and maintaining a customer base or clientele that views them as the No. 1 provider of the good or service they require from that business.
Purely conventional
negotiations often
fall short
The advancement of mutual goals and the addressing of the opposing parties’ needs are often lost in purely conventional negotiations. The parties come into negotiations with proposals designed to advance their own interests.
Normally, those proposals are phrased in terms of extremes, to take into consideration the fact that some movement will occur before an agreement can be consummated.
Part of the rationale for this phenomenon is the fact that both sets of negotiators must be able to point to "progress" of some sort for the benefit of their constituents, as a way to justify what they are doing and the time they are spending doing it.
The upshot, of course, is that hours and days are often needlessly spent at the table or in the bargaining process. Much of that time is wasted in posturing and positioning while the parties ignore the most important aspect of what is occurring, namely, why a particular proposal is on the table in the first place.
ECN attempts to streamline the process. The parties fully discuss issues and concerns before any proposals are advanced. In contrast to interest-based bargaining, where consensus must be reached before closure occurs, in ECN the parties are still expected to make firm proposals. However, those proposals are only developed and advanced once there is a full understanding of the concerns underlying the proposal.
Here’s a concrete example: Under a conventional approach, the union might come to the bargaining table with a proposal that the employer pay 100% of the premium costs for health insurance. The employer might respond by rejecting the proposal, and the parties might (or might not) ultimately reach a compromise on the issue.
Yet with ECN, the parties will be prompted to discuss and explore the concerns underlying the union’s proposal, which could be that these members, who are relatively healthy, feel strongly that their take-home pay has been unacceptably eroded by premium increases for insurance that is not being fully utilized.
ECN would allow the parties to better understand the motivations for employees’ concerns, and might allow them to explore options such as the shopping of the health plan, changes in co-pays or deductibles, or other approaches that better address the needs of the employees. It might well be that the issue is resolved before it ever becomes a formal proposal.
FMCS is quick to point out that ECN is not for everyone. It is clear that for the process to be most effective, there must be a significant degree of trust between the parties and probably a relatively mature bargaining relationship. However, in those settings where ECN is most likely to succeed, the FMCS notes that early results have been extremely encouraging.
David B. Kern is a partner and head of the labor and employment law group at Quarles & Brady in Milwaukee. His practice includes an emphasis on collective bargaining, employer counseling and discrimination litigation, and he has represented clients in state and federal courts and before the Wisconsin Equal Rights Division, the Equal Employment Opportunity Commission and other state and federal agencies.
May 24, 2002 Small Business Times, Milwaukee
