Collective Bargaining
Collective bargaining consists of negotiations
between an employer and a group of employees that determine the
conditions of employment. The result of collective bargaining
procedure is called the collective bargaining agreement
or CBA. Often employees are represented in the
bargaining by a union or other labor organization. Collective
bargaining is governed by federal and state statutory law,
administrative agency regulations, and judicial decisions.
Unions and management engage in negotiations in
order to reach a CBA agreement (contract). The law (National Labor
Relation Act) requires that both sides “bargain in good faith.” This
means that they both must come to the table willing to give and take.
Often, though, each side feels a need to “push” the other side in
order to get what they want.
Management might, for example, engage in a
publicity campaign against the union, furlough workers (temporary
layoff), and in the direst of circumstances, lock out workers. In the
past management took certain actions which are now illegal
such as the hiring of armed thugs (the Pinkertons are an example),
signing workers to yellow dog contracts (contract a
worker signed that promised they would not join a union as a
condition of their employment), and black listing
(creation of lists of union organizers that would be circulated to
other employees so that those on the list could not get
jobs).
Unions also have a variety of weapons at their
disposal. They might have a mass sick out, slow downs or have picket
lines. They might engage in a boycott of the manufacturers product
and they also might engage in a publicity campaign. Of course the
last resort and strongest weapon for a union is the strike.
Sometimes, in the event of a strike management
hires replacement workers, know derisively as scabs. Unions often
respond with great venom to these workers who are threatening there
jobs by making the strike less effective.
If both parties are headed towards a labor
impasse certain steps may be taken outline below to avoid
continued labor discord.
Fact Finding/Non Binding
Arbitration
Fact Finding is typically a step taking to
avoid labor impasse that occurs before mediation and arbitration. In
fact finding, a neutral third party is hired to review the relevant
labor dispute and to render a finding of fact. The finding of fact is
the independent arbiters view of what has occurred in the labor
dispute and what decision they would have made had they been
empowered to make it. The difference between fact finders and non
binding arbitration is that fact finders are usually those that are
hired independently by either party. Non binding arbitration occurs
when both parties agree to present their dispute together.
The purpose of fact finding and non binding
arbitration is to push along negotiations by having an unbiased third
party opinion. Typically one side then uses the findings as a crutch
in negotiations.
Mediation
Mediation is a process for resolving disputes
with the aid of a neutral third party. The mediators role involves
assisting parties, privately and collectively, to identify the issues
in dispute and to develop proposals to resolve the disputes. The
mediator is not empowered to decide any disputes; accordingly the
mediator may meet privately and hold confidential and separate
discussions with the parties to a dispute.
Mediation may be mandatory, under the terms of
certain laws or court rules, or may be voluntary, by agreement of the
parties. Some laws and court rulings have rules requiring mediation
of disputes at some point in the litigation process. Voluntary
arbitration may be undertaken when two parties agree in advance to
submit any disputes to mediation. Such mediation clauses are common
in agreements in which the parties seek to resolve their disputes in
a manner which avoids hostility and preserves an ongoing
relationship. Mediation agreements also may be made at the time a
dispute arises.
A typical mediation might involve allowing each
party to submit pre-mediation briefs which succinctly set forth the
essence of the dispute, and each parties’ position. At mediation, the
mediator will typically conduct introductions, explain the mediation
process, provide assurances of confidentiality, and give each party
an opportunity to explain the dispute and the reasons behind the
party’s position. Many mediators will then meet privately with each
party, and provide an evaluation of the dispute, pointing out the
strengths and weaknesses of each party’s position. The mediator may
then, again in private, assist each party to determine both parties’
genuine interests, and encourage each party to identify settlement
proposals intended to address those interests. Typically, the
mediator communicates settlement proposals to each party, and helps
each party determine how best to respond to a settlement
proposal.
Arbitration
In arbitration, a dispute is submitted to an
arbitrator for a decision. Arbitration may be binding or non binding
(advisory). Binding arbitration involves having a neutral person (or
a panel of neutral persons) decide a dispute, after hearing each
parties’ presentation of evidence and argument. The parties agree in
advance that the decision (award) of the neutral is to be final.
Generally, there are no appeals from an arbitrator’s award, though
parties may seek judicial relief from binding arbitration if the
arbitrator exceeds the authority conferred under the parties’
agreement to arbitrate, or if the arbitrator denies a party a fair
hearing, or demonstrates bias or prejudice. Also, parties may
sometimes seek judicial relief if there is an obvious mistake, such
as a calculation error, that appears on the face of an
award.
Non binding arbitration (sometimes called
advisory arbitration) operates in much the same fashion, except that
the award of the arbitrator is not intended to be final or binding.
Rather, the award is intended to provide guidance to the parties so
that the parties can consider the persuasive influence of their
positions, as reflected by the advisory arbitrator’s award.
Arbitration may be court-ordered, for example,
under court rules which mandate that certain disputes be submitted to
arbitration. Or, arbitration may be mandatory, under the terms of
rules or agreements to which the parties have agreed in advance of
any dispute. For example the rules of the (United States) National
Association of Securities Dealers require members to submit all
disputes between them to binding arbitration.
In contrast, arbitration may be voluntary.
Voluntary arbitration refers to the arbitration of a dispute
submitted to an arbitrator by agreement of the parties. Typically,
parties to a dispute submit their dispute to arbitration in order to
minimize the expense, delay, or publicity which they perceive will
accompany litigation. Voluntary arbitration is consensual. Parties
enter into an agreement to arbitrate or a submission agreement. The
Agreement to arbitrate may be entered into in advance of any dispute,
and may, for example, be included in a dispute resolution clause of a
contract. Parties may agree to arbitrate a dispute at the time a
dispute arises, or at any time before a final judgment is entered in
a court proceeding.