Bargaining labor contracts for employers is unlike any other business activity, often driven by emotion, governed by labor law, but essential to an efficient, smooth running operation. Concluding bargaining successfully is a real challenge for employers.
Contrary to a business contract with a vendor, the employer cannot walk away from the majority union. A duty imposed by law requires the employer to stay in the relationship with the union and bargain.
Throw into the mix Michigan’s new Freedom To Work law, which (1) makes union dues optional, (2) hold unions accountable for their representation work, and (3) shapes union behavior. Performance pressures on bargaining heighten the challenge for employers. So specialized is this process that a Federal Appeals Court acknowledged the benefit to an employer of having “experienced participants…intimately familiar with the intricacies of the bargaining process…” Truserve Corp v. NLRB, 254 Fed 3rd 1105 (DC Cir, 2001).
Bargaining has been referred to as a charade with realistic implications. The employer and union move, weave, and dodge, changing posture to stay within the process vaguely defined by law and policed by a more activist National Labor Relations Board (NLRB). Even though bargaining law does not compel agreement, the NLRB can, on union initiative, through an unfair labor practice charge, with significant potential exposure, find the employer’s bargaining in violation of the law. Such a finding can severely burden the employer’s options and outcome in bargaining.
Critical to make bargaining work in this dynamic and volatile process is to treat bargaining as a business plan, moving from goal setting to bargaining strategy, and implementing the bargaining plan.
Contributed by Steve Fishman, chair, Workplace Law Group/Bodman PLC.
View the on-demand webinar “Unionized Workplaces: 8 Step Bargaining Plan” with Steve Fishman.