Collective Negotiation: A Report

Submitted by admin on Thu, 05/19/2011 - 04:29

“...where free unions and collective bargaining are forbidden, freedom is lost.”

Ronald Reagan, Labor Day Speech at Liberty State Park, 1980


COLLECTIVE NEGOTIATION or collective bargaining is a process of negotiations between employers (generally represented by management or employers’ organization) and the representatives of employees (e.g. trade unions) aimed at reaching agreements which regulate working conditions.
          The result of the negotiation is often referred to as collective bargaining agreement (CBA) or as collective employment agreement (CEA) which usually sets out wage scales, working hours, training, health and safety, overtime, grievance mechanisms and rights to participate in workplace or company affairs.
          Collective bargaining offers labor and management a way to resolve differences so as to avoid a strike or lockout. If labor and management cannot come to agreement on their own they may submit their dispute to a third party in an arbitration proceeding.
          In education, collective negotiation is a method open to teachers to have influence on the conditions under which students learn and teachers work. It allows key issues to be addressed in ways that are equitable and consistent and incorporates compromises that provide for a stable relationship between teachers and boards of education.

Etymology
“Collective negotiations” is a hybrid from the terms “collective bargaining” and “professional negotiation” used by two rival teachers’ organizations in the U.S. The American Federation of Teachers (AFT) favored “collective bargaining” whereas the National Education Association (NEA) preferred “professional negotiation”. The term thus sidesteps the terminological hassle between them.

Historical Perspective
10 Information about the History, Legal Bases, and background of Collective Negotiation

1. The American Federation of Labor was formed in 1886, providing unprecedented bargaining powers for a variety of workers.
2. The phrase "collective bargaining" was coined by British labor reformers Sidney and Beatrice Webb in the 1890s.
3. The Railway Labor Act (1926) required employers to bargain collectively with unions.
4. To resolve labor issues peacefully and "in good faith," Congress passed the National Labor Relations Act in 1935 which established the right of workers to engage in collective bargaining. The NLRA created the national labor relations board (NLRB), a federal agency authorized to enforce the right to bargain collectively. The NLRA has been amended several times since 1935, most notably in 1947, 1959, and 1974.
5. In 1962, President Kennedy signed an executive order giving public-employee unions the right to collectively bargain with federal government agencies.
6. During 1967 in the U.S., teachers, citing a mounting list of grievances, struck an estimated 75 times in about as many school districts. By comparison, there were 33 strikes by teachers in 1966 and only 129 from 1940 to 1965. The most frequently cited teacher grievances are mediocre salaries, a negligible voice in educational policy making, problems of student discipline, overflowing classrooms, and the loss of teacher dignity and identity caused by the welding of school systems into large bureaucracy-ridden agglomerates.
7. As of September, 1967, 10 states had enacted laws authorizing or requiring school boards to negotiate in good faith with representatives of teachers and of other professional personnel on aspects of teacher-school board relations.
8. Item 2(a) of the 1998 International Labour Organization's Declaration on Fundamental Principles and Rights at Work defines the "freedom of association and the effective recognition of the right to collective bargaining" as an essential right of workers.
9. In June 2007 the Supreme Court of Canada, in the case of Facilities Subsector Bargaining Association v. British Columbia, stated: “... Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace. Workers gain a voice to influence the establishment of rules that control a major aspect of their lives.
10. Collective bargaining is still practiced in the twenty-first century, but it is no longer the most hopeful road toward either high wages or an updated industrial democracy. It did not generate the industrial peace promised by its proponents as strikes remain to be large and frequent.

Significance
19 Consequences of Not Having Collective Bargaining
Public policy analysts Roger G. Brown and Terrel L. Rhodes, mention some adverse consequences of not having public sector collective bargaining:
Manager-Employee Relations
1. Many manager-employee problems remain unresolved.
2. Some managers feel they are placed in the conflicting role of representing their employees to management.
3. Managers are sometimes drawn into small, distracting, time-consuming disputes.
4. Some managers tend to avoid direct interaction with public employee groups and lose opportunities to foster improved relations.
The Character of Negotiations
5. Negotiations take place under conditions of unbalanced power relationships.
6. Negotiations are not eliminated in public agencies. Sometimes negotiations simply proceed outside formal channels but without formal rules.
7. Failure to negotiate group grievances can result in multiple individual grievances, choking the system of dispute resolution for everyone.
8. Failure to negotiate sometimes escalates into costly class-action lawsuits.
9. Forces negotiation of salary, working conditions, and sometimes very minor matters into the General Assembly.
10. Many intermediate-level matters are never negotiated (those which affect numerous employees but which aren't suitable for an individual grievance. Matters relating to the exercise of professional judgement are often also excluded) .
11. Negotiating with the General Assembly is less focused than negotiating with one Executive Department.
Organizational Impacts
12. Low-level disputes can escalate into broader problems thereby reducing morale, increasing unnecessary turnover, and lowering productivity.
13. Conflict is fostered between departments as they vie for wages, working conditions, or other perquisites.
14. Produces inequities from one department, agency, or jurisdiction to another.
15. Suppressed conflict has negative impact on individual and organization goals.
16. Encourages a system of personal retribution against those employees who attempt to speak out on behalf of their group.
Privatization
17. Encourages unnecessary privatization of public services as a means of eliminating management-employee conflict.
18. In the face of privatization, doesn't protect employee rights, including the rights of managers.
19. Doesn't protect the legal and constitutional safeguards of some classes of employees, particularly women and minorities, whose jobs are often the target of privatization.

Model Policy
Each national teachers’ organization has formulated an ideal-type model statute for collective negotiations in public education.
An AFT model state statute for the regulation of the procedural aspects of public employee collective bargaining would include the following provisions:
1. exclusive recognition of a single bargaining agent who receives the majority vote of employees voting in a secret ballot election;
2. “continuing recognition” until a significant number of the employees petition for a new election;
3. separate negotiating units for supervisory and administrative personnel;
4. unlimited scope to negotiations with the parties actually determining what is bargainable;
5. written agreements which are legally binding;
6. a code prohibiting unfair labor practices and requiring good faith bargaining by both parties;
7. the right to strike;
8. procedures for resolving impasses including mediation, fact finding, and arbitration (non-binding);
9. individual grievance procedures with outside binding arbitration as the final step; and
10. a state labor relations board to administer the law, e.g., conduct elections, provide mediation services, determine unfair labor practices, etc.

Four basic points in the Law of Collective Bargaining
1. The employer may not refuse to bargain over certain subjects with the employees' representative, provided that the employees' representative has majority support in the bargaining unit.
2. Those certain subjects, called mandatory subjects of bargaining, include wages, hours, and other terms and conditions of employment.
3. The employer and the union are not required to reach agreement but must bargain in good faith over mandatory subjects of bargaining until they reach an impasse (a stalemate, a point at which no further progress can be made or agreement reached).
4. While a valid collective bargaining agreement is in effect, and while the parties are bargaining but have not yet reached an impasse, the employer may not unilaterally (i.e. decided by one party) change a term of employment that is a mandatory subject of bargaining. But once the parties have reached an impasse, the employer may unilaterally implement its proposed changes, provided that it had previously offered the changes to the union for consideration.

Some Principles in Collective Bargaining

Exclusive Representation
A majority of the workers in a bargaining unit must designate a representative with the sole or exclusive right to represent them in negotiations with the employer's representative. The employer is not required to bargain with an unauthorized representative.

Duty to Bargain in Good Faith
During the bargaining process, the parties are not required by law to reach agreement. They must, however, bargain in good faith. Although good faith is a somewhat subjective concept, courts will look to the entire circumstances surrounding bargaining, including behavior away from the bargaining table such as pressure and threats. Most authorities agree that an absolute refusal to bargain constitutes bad faith.

Unilateral Changes
During the time a collective bargaining agreement is in effect, the employer may not change a working condition that is a mandatory subject of bargaining, without first bargaining with the union. Even after the collective bargaining agreement expires, the employer must maintain the status quo and may not unilaterally change mandatory subjects of bargaining, until the parties have reached an impasse.

Scope
Labor unions were formed to help workers achieve common goals in the areas of wages, hours, working conditions, and job security.

Mandatory and Permissive Subjects of Collective Negotiation
The parties must bargain in good faith over mandatory subjects of bargaining, which include wages, hours, and other "terms and conditions of employment". Courts set standards for determining whether a specific bargaining topic is mandatory. Generally, terms and conditions of employment encompass only issues that "settle an aspect of the relationship between the employer and the employees".
If one party wishes to bargain over a mandatory subject, it is an unfair labor practice for the other to refuse.
           Other topics are permissive subjects of bargaining, and it may be an unfair labor practice for a party to demand bargaining over them. Thus, the parties may change permissive subjects unilaterally without bargaining and cannot be forced to bargain over such changes.
Some decisions, such as advertising and product selection, bear such an indirect relationship to employment relationship that they are almost certainly only permissive subjects of bargaining. Other decisions, such as those regarding hiring, layoffs, and plant rules, are so directly relevant to the employment relationship that they are almost certainly mandatory.

References
Brown, Roger G. and Rhodes, Terrel L. "Public Employee Bargaining under Prohibitive Legislation: Some Unanticipated Consequences." Journal of Collective Negotiations 20(1) (1991): 23-30.
Lee Luft, Paula. "Collective Bargaining." Encyclopedia of Business and Finance, 2nd ed.. 2007. Retrieved April 25, 2011 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-1552100058.html
Rhodes, Terrel L. and Brown Roger G. "Divided We Fall!--Employee Perceptions of a Legal Prohibition on Collective Bargaining: A Preliminary Look." Journal of Collective Negotiations
"Collective Bargaining." Dictionary of American History. 2003. Retrieved April 25, 2011 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3401800906.html
"Collective Bargaining." Gale Encyclopedia of U.S. Economic History. 1999. Retrieved April 25, 2011 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3406400182.html
"Collective Bargaining." West's Encyclopedia of American Law. 2005. Retrieved April 25, 2011 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437700930.html

How to cite this article:
Jensen dG. Mañebog. “Collective Negotiation: A Report” @ www.OurHappySchool.com

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