Ten Rules to Live by for Public Management Labor Negotiators
by
Gregory S. Mathews
Listed below are ten unusual truths that I have found useful in the up-and-down process of bargaining with labor unions on behalf of public employers. These ten rules
are not the only ones you will need, but I hope you will find them as helpful as I have.
1. Beware of the Flying Monkeys
In order to get to the Emerald City, Dorothy had to follow the yellow brick road.
But someone else built it, or maybe it appeared by magic. If you are involved in labor negotiations on behalf of public management, however, you will not be able to rely on
someone else's efforts – at least not entirely. In collective bargaining, every set of
negotiations requires that you follow a new path.
As with most other endeavors in life, building a path to the Emerald City requires planning and execution. You can't be like Columbus, who supposedly didn't know where he was going before he left and didn't know where he was when he got there. You need to be able to establish reasonable goals, obtain information necessary to determine whether those goals are obtainable or whether they may have to be adjusted during the course of negotiations, and develop strategies designed to achieve those goals. In this process, keep your eye on the Emerald City in the distance, which is the ultimate destination. And beware of the Flying Monkeys: distractions that get you off track, into
the realm of frolic and detour. If they knock you off the yellow brick road, falling asleep
in the poppy field will be the least of the ills that befall you.
2. Remember to Say "Mother, May I?"
Some of you may not be old enough to remember the childhood game of "Mother,
May I?" It was a very simple game, really. One of the players was designated as the
Mother, and she (or he) would give the other players directions on how to travel a
specified distance to the pre-established goal. Upon receiving a direction, such as "Susan, take one giant step forward," Susan would have to say "Mother, May I?" and get Mother's approval before taking the step. Taking the step without saying "Mother, May
I?" would mean Susan was out of the game.
In public sector labor negotiations, "Mother" is the governing board or council. It
is a cardinal sin to present an offer to the other side – especially one involving economics
– without the prior authorization of your governing board. The consequences of doing so
can range from eating crow – either at the bargaining table or before the governing board
– to having to defend the public jurisdiction against an unfair labor practice charge
resulting from the board's rejection of the agreement that was reached at the bargaining
table. So before you take a giant step – in fact, any step of any consequence at all – be sure to ask "Mother, May I?"
3. There Ain't No Such Thing as a Free Lunch
In the science fiction novel The Moon Is A Harsh Mistress, by Robert A. Heinlein, dissident colonists on the Moon who are rebelling against the oppressive
authority of Earth adopt the slogan "TANSTAAFL", an acronym for "There Ain't No
Such Thing As A Free Lunch." This is a principle that conforms to our everyday
experiences. Thus, the "free trip" offer that you get in the mail is really just a way to
entice you into giving the offering organization an opportunity to try to sell you time- shares. The fact that you don't pay money for the bumpy air ride doesn't mean it's free; you're just paying in another way.
Unions, and less frequently public employers, sometimes act as though they think collective bargaining is a free lunch. They're free, they seem to believe, to make demands and proposals without responding to the other side's proposals – or even
recognizing the legitimacy of the other side making proposals at all. But the consequence
of thinking that there is a free lunch is no lunch; so be sure that the other side understands that lunch costs something and must be served for two.
4. They've Got to Eat the Peas and Carrots Before You Show Them
Dessert
How do you get your kids to eat their vegetables? One way is to withhold dessert until a satisfactory portion of the main meal has been consumed. Just like kids at a dinner table, the employee committee is going to want to go right to dessert, skipping the peas
and carrots if it can. You cannot let that happen.
Especially in first contract negotiations, there are a number of articles and sections of the collective-bargaining-agreement-in-progress that involve standard, almost boilerplate, language. The Preamble, Recognition clause, No Discrimination provision, Savings clause, and sometimes even the Grievance Procedure are relatively standard provisions that are not difficult to negotiate or agree upon. But you really should get those provisions out of the way before you start talking economics. This serves two purposes: first, it starts the negotiations off on the right foot by showing that agreement
on particular provisions is possible and maybe even easy, and second, it helps to avoid
the situation in which you have reached agreement on major economic items but then realize you do not have a complete contract ready to present to your respective principals.
No one likes to have to go back and eat the peas and carrots after having devoured the chocolate cake.
5. Keeping the Other Side from Scoring is Not Important
In a football game, defense is as important as offense. To win the game, you have
to outscore the opposition or just score a little bit and keep the opposition from scoring at
all. But in collective bargaining, there is no score card. If there were, managements would almost always lose (see Rule No. 8). Bargaining is not like football. It does not hurt the employer if the union achieves some of its objectives, as long as that
achievement does not take place at the expense of management's objectives. In fact, it
can be beneficial to the relationship if the union achieves some of its objectives, because
that should help the ongoing relationship of the parties.
In bargaining, the employer needs to keep its mind on the achievement of its objectives at the bargaining table. If, under the circumstances, the employer is able to achieve a reasonable number of its objectives, then management wins, irrespective of what the union achieves.
There may even be circumstances in which objectives will coincide. The employer's objective with respect to wages always is, or should be, to determine the level
at which, consistent with budgetary constraints, it must pay its employees in order to attract and retrain competent personnel. Unless the employer has absolutely no other rational choice, a practice of paying below market salaries, and losing employees as a consequence, is of no long-term advantage to the employer and will only accelerate or
perpetuate the employer's attraction and retention problems. So the employer and the
union may share a common objective of increasing wage rates, although they still may disagree on how much or how best to do that. Ultimately, management's challenge at the bargaining table will be to convince the union that achievement of management's goal
also achieves the union's goal.
6. There is Always Some Part of "NO" They Do Not Understand
Everyone has heard "no means no." That is not entirely true, at least in collective bargaining. Sometimes it means "No, never." Sometimes it means "No, not now." Sometimes it means "Maybe." And sometimes it means "We're not entirely opposed to
that, but we don't have the authority to agree to it at this time."
The lot of the management negotiator is to say "no" – a lot. Rarely will a union
take the first "no" as being the final answer. Most unions take rejection very well. Rather
than getting upset, they will simply submit the proposal again, maybe in the same form or maybe in a different form or different context. This can be frustrating for management –
until it realizes that this is just part of the game. Eventually, the union will get the message if "no" means "not ever" and will keep looking for the right time if "no" means
"not now." At some point, both sides will have to decide whether the issue is important
enough to take to the mat. For management, that means a decision that maintaining the
"no" is important enough to risk a strike or interest arbitration (in the case of police and
firefighters). For the union, it means the obverse: the gain represented by a favorable
outcome on the issue is important enough to warrant at least the threat to resort to one of these two types of impasse mechanisms.
7. There are Many Licks Before the Crunch
Sometimes, collective bargaining reminds me of the Tootsie Roll Pops commercial – you know, the one in which the narrator says that no one will ever know
how many licks there are in a Tootsie Roll Pop because no one can resist crunching through the candy crust to get to the Tootsie Roll center. One may not be able to say for certain how many licks there are before negotiators reach the heart of a collective bargaining confrontation, but it can be said for certain that there are quite a few. So one temptation that negotiators must resist is trying to crunch to the center before the licks have reduced the candy coating to a crunchable veneer.
Strangers to the negotiation process and inexperienced negotiators sometimes wonder why it is that the parties seem to have to play a back-and-forth game until they
arrive at a negotiated solution. The reason is simple – lack of information. If
management knew from the outset what the union's bottom line – or "reservation price",
if you will – was as to each issue, and if management could see that the union's
settlement point and management's settlement point for each issue were within a "zone of
agreement", then negotiations would be less time consuming. But neither side knows
what the other side will agree to with respect to each issue until each issue has been explored in negotiations; hence, the "game". In fact, it is often true that neither side
knows what its own true bottom line is until time and opportunity present themselves in just the right juxtaposition.
One reason why neither side goes right to its authorized bottom line concerning economic issues, in particular, is that the other side never will believe that the articulated
offer represents the offering party's true reservation price. So, if management makes an
initial wage offer at the full extent of its authority, the union will believe that
management has more that it can offer and will explore to see if it can get management to increase its offer. Management's subsequent refusal to increase its offer would look to
the union like, at best, "holding out" and at worst, bad faith bargaining. So both sides have to play the game until it's "crunch time."
8. Never Play Strip Poker with an Eskimo
The union generally starts off with more proposals than management. In addition, with respect to economics, it always leaves itself more room to come down than
management has to go up. One union bargaining strategy will be to "peel the onion",
which means to start high, come down a little bit at a time, and expect the employer to
match the amount of movement in its turn. There is no way, under normal circumstances, that management can play that game successfully. So never play strip poker with an
Eskimo – especially if you're wearing a bikini.
At some time during the bargaining process, management has to send the message
to the other side that it is not going to play a game of trying to match the magnitude of union movement. Even getting into a game of "peel the onion" can work to the detriment
of management, because there will come a time when the union still has room to move
when management's range of movement has been reduced almost to nothing. If
management then refuses to move, the union will take that response as meaning that
management has reached its bottom line, which may or may not be true. And if management moves only a fraction, then the union may choose to take the offer as an insult.
Rather than playing a game of single issue quid pro quo, management is usually better off getting to aggregate "package"1 negotiations relatively early in negotiations.
That way, trade-offs can take place over the whole range of issues rather than within a single issue.
9. Try to Get the Answer Before You Ask the Question
A friend of mine proposed to his wife this way: "If I were to ask you to marry me,
what would you say? Mind you, I'm not asking." The lady, fortunately, did not get
offended by this roundabout way of asking and said: "I'd probably say yes." My friend
then clinched the deal when, on a subsequent lunch date, the couple passed the window
of a jewelry store, stopped in front of the rings display and he said: "See anything here
you like?"
In negotiations terminology, this is called a "supposal": suppose I were to offer X, would you accept it? One reason to use the supposal technique goes back to Rule Number 2, above. Before you ask the governing board for authority to make an offer that you think will clinch the deal, you may need to know whether the offer that you are
considering will be accepted by the union. If it won't, there's no point in making the
offer.
In using the supposal technique, you have to be sure that the supposal exchange is
off the record and that the union understands that you don't have the authority to make
the offer; all you are doing is asking the union for information that will enable you to ask
for the requisite authority. Then, Rule Number 2 comes into play. You ask "Mother,
May I?", and if the governing board says yes, you go back to the union with an offer
along the lines of your supposal. Presumably, that will seal the deal on that issue. And if
the governing board says no, you don't make the offer and both parties go back to the
drawing board.
In deciding whether to use the supposal technique, you must remember Rule
Number 7. This is definitely a "crunch time" technique; if you use it before then, you will
not get to the Tootsie Roll center and might just chip a tooth.
In "package" negotiations, the parties make offers covering all or a designated portion of
outstanding issues, with the caveat that the offer must be accepted or rejected as a package. That is, the
rejection of one part of the package constitutes a rejection of the whole package. But good negotiators build on the acceptances and counter-offers included in a package response to progress over the course of
several package offers and responses in the direction of the common goal of agreement.
10. Assume is a Three-Syllable Word
A negotiator who uses the word "assume" in bargaining runs the risk of an embarrassing lesson from the (presumably more experienced) negotiator on the other
side. "Don't you know," he will say, "that the word 'assume' has three syllables? The
syllables are 'ass-u-me.' If you assume, then you make an ass out of you and out of me."
Two areas where assumptions are particularly deadly are in communications between the bargaining team and your jurisdiction's governing board (see Rule Number
2), and in summarizing the "deal" with the union before putting together the collective
bargaining agreement. Never assume that you have authority from your governing board
to do something. Here, another three-syllable word comes into play: ver-i-fy. You must verify, preferably in person, with the governing board that you have authority to make an offer, particularly one that will clinch a deal. And never assume that management and
the union are in agreement with the specific wording of any collective bargaining agreement provision until the language has been presented in writing to the other side and both parties have signed off on it. Many a dispute has arisen because language that one side thought was agreed to was not, in fact, the subject of agreement. You can avoid those disputes if you do not assume anything, and verify everything.
CONCLUSION
Like all art forms, successful collective bargaining requires preparation, perspiration, and inspiration. And like all art forms, the final product depends on the skill
of the artist as well as the artist's chosen medium. The ten rules listed above are no
substitute for skill or experience. Indeed, they are nothing more than concepts or
techniques that may help an otherwise skillful artist to achieve the kind of result that feels good today and will continue to work well, when tested, in succeeding years of the contract.
The use of an experienced professional negotiator with a proven record of success
at the bargaining table should illustrate these ten rules and many more in practice. Good professional negotiators are at the table, in part, to absorb any resentment that may flare
up during the negotiating process.2 Thus, the professional negotiator's presence and the
exercise of proper technique typically will reduce the animosity between union
representatives and the full-time public employer representatives who must work together during the contract term. By helping the public employer to avoid the Flying Monkeys,
the negotiator enables the employer to reach the Emerald City and thence, by means of
the transportation provided by the ruby slippers, to Kansas. Like Glinda and the Wizard,
the negotiator then retreats to a land Somewhere Over The Rainbow, there to await once again the clarion call to battle.
2 Although the Ten Commandments of Management-Side Collective Bargaining are a subject for another piece, it may be useful to mention three of them: 1) "Thou shalt not make out the governing board
to be the bad guy"; 2) "Thou shalt not blame the Administration unless it is absolutely necessary to avoid violating the First Commandment"; and 3) "Thou shalt not shirk thy duty to be the bad guy if needed to avoiding violating the First and Second Commandments."
More ideas about the negotiation process can be found in our pamphlet, Labor
Law Handbook for Small Governments, available for download without charge at our website, www.ancelglink.com.
All chapters:
Ten Steps to Help Keep Your Employees From Suing You (Or To Help Defend You If They Do), by
Margaret Kostopulos
Ten Lessons Learned by a Former Elected Official, by
Gregory S. Mathews
Ten Rules to Live by for Public Management Labor Negotiators
, by
Gregory S. Mathews
Donald W. Anderson
Moving Ten (Giga) Steps to the Digital Future
, by
Adam B. Simon
Ten Things Governmental Officials Should Know About
The Illinois Governmental Tort Immunity Act
, by
Darcy L. Proctor
How Governments Can Win in Cases Before Appellate Courts – 10 Examples
, by
Ellen K. Emery
Ten Rules About Running for Local Government Office, by
Keri-Lyn J. Krafthefer
Top Ten Tools for Your Construction Project, by
Derke J. Price
Ten Steps to Creating a TIF District, by
Paul N. Keller
Ten Things Governmental Officials Don't Know About
Workers' Compensation, by
Gerald A. Granada and W. Britt Isaly
Ten Things Municipal Officials Should Know About
Local Prosecution and Ordinance Enforcement, by
Scott Puma and John Christensen
The Zoning Game in Ten Easy Lessons , by
David S. Silverman
Ten Ways Municipalities and Park Districts Can
Intergovernmentally Cooperate, by
Scott A. Puma
Ten Steps to a Closer Relationship Between Municipalities
and School Districts, by
Margaret Kostopulos
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