Breaking Deadlocks

Pressures on the parties to reach a resolution and bring the negotiations to a close become more intense as contract deadlines approach and the contract campaign heats up. This means that most of the key issues are usually left towards the end.

When the other side takes a hard line on key issues, especially regarding union mandates, the most important thing we can do is not at the table. The collective actions of workers and allies and the contract campaign are most important. The problem is not usually a failure to communicate at the table, but rather a failure to get the employer(s) to want to settle through effective and strategic campaign and organising work.

Empty threats or promises of action show weakness. If you are going to inform the employer of campaign actions or the decision to take a strike vote, do so only after a thorough discussion and commitments from workers and the full knowledge that you can deliver what you say and more. When the actions occur, they should be stronger than what the employer(s) were expecting.

The United Workers Union faced a difficult situation during contract negotiations when the employer tried to create a two-tier system with the potential to divide workers.

After originally proposing 49 cuts to conditions for the South Australian unionised winery workers, the company, in their last, best and final offer, agreed to all of the union demands except for one, the continuation of an income protection program which was costing the company approximately AUD 6,000 per worker. Under the companies last offer, only existing workers would continue to receive the costly income protection programme where they were paid full wages in the event of illness or injury outside of work.

The current workers were organised, united and had been preparing to strike, but the company’s final proposal was planned to divide the strike vote. It is sometimes difficult to get workers to fight for future conditions for new workers when they themselves have been grandfathered in, especially when all their other demands have been met.

The union prepared for the vote ratification with a campaign plan. If the workers accepted the two-tier, the delegates explained that they would need to commit to organising for a strike at the next contract. The workplace delegates prepared each worker to commit to a written pledge to strike in three years if the company refused to end the two-tier system at the next contract.

With help from the delegates and union leadership, the current workers began to understand that they would become possible targets under the proposed two-tier system. Older workers would become too expensive to employ if the company could engage new workers for less and their union would be weakened.

The workers made plans to march through the small regional town informing the community of the company’s position (no matter how the workers voted). They planned how they could keep a strike promise alive for both the company and the workers by asking each new worker brought in at the lower tier to commit to the strike pledge upon hiring.

The union delegates made the choices very clear and provided a clear plan to fight back now, or in the future. In the end, the workers voted unanimously to strike immediately over the two-tier system rather than wait for the next contract.

When the union met the company to bargain, the company was not prepared for the union response. They thought the workers would roll over and accept the compromise.

The workers protected all their conditions and won wage increases with no concessions, as well as stronger union rights including the right for our delegates to induct new workers to the union. None of the company’s 49 original proposals for cuts in conditions were agreed to.

Following the negotiations, the workers conducted a survey to help them create a narrative about what the union stands for and to set the stage for asking new workers to join the union. The survey contained two questions: What was the most important condition workers won in this contract campaign? What is the one thing we need to win at the next bargaining?

The Sindicato Unico de Trabajadoras Domésticas (SUTD) in Uruguay was established in 1985 when democracy returned to Uruguay and the ban on union activity was lifted. In November 2006, Law 18.065 was adopted by the Uruguayan legislature. The law gave domestic workers the same basic labour rights as other workers. The law also said that there must be a wage council for domestic service. The wage council for domestic service was eventually created in July 2008. The government had three representatives, and the workers and employers each chose two representatives and two substitutes.

Negotiations for the second agreement began in August 2010. The negotiations lasted for four months, in which time 14 meetings were held. The SUTD presented 14 demands, some of which were new, while others were from the 2008 list. The Liga eventually only accepted (at least in part) four of the demands. There was serious conflict over the issues of union leave, wage categories, and wage increases.

After nearly three months of negotiation, the SUTD decided to move to collective action. Workers distributed leaflets in the residential neigbourhoods, criticising the employers for “starving” domestic workers. The SUTD sent a formal protest and demanded an interview with the President, the Minister of Economy and Finance, and the Minister of Labour and Social Security.

The union accepted an offer that exceeded the SUTD’s expectations, including a 37.6 per cent wage increase for workers at the lowest pay level. In the end, the agreement covered a period of two years, as demanded by workers. In December 2010, the second collective agreement was signed.

https://www.wiego.org/sites/default/files/publications/files/Budlender-Informal-Workers-Collective-Bargaining-WIEGO-OB9.pdf

Review the current status of the bargaining campaign and the arbolito and workplace delegate structures (link)

Review the legal frameworks surrounding dispute resolution, mediation, arbitration, fact-finding and impasse. (link)

Identify the key negotiating proposals that remain unresolved and deadlocked or imagine the proposals that might become deadlocked in the future.

Are there particular proposals that would benefit from collective action by workers and allies?

Are there key proposals that need more input, surveys, meetings and conversations with workers?

Are there collective actions that can create significant impact on the employer(s)?

Would a strike vote (or a vote to take a specific industrial action) result in a sign of strength or weakness to the employer(s) at this time?

If workers are not ready to take a particular action at this moment, what collective action would they take?

Do workers need more information about the status of the negotiations?

How can the arbolito structures be utilised?

Revisit the Tool Kit materials on “Campaigning and Organising”, particularly “Targets and Allies”(link), Strategies (link) and “Tactics” (link) to help identify additional strong actions that workers can take.

Are any of these scenarios likely to occur with your bargaining?

☐ No decision-making authority on the employer’s bargaining team. They have to take everything back to another decision-maker.

☐ The employer(s) are in no hurry. The union team is concerned that negotiations could take a long time.

☐ The employer(s) want to increase or introduce a casual workforce.

☐ The employer team refuses to say yes to high-priority union proposals or mandates.

☐ The employer(s) want to weaken or get rid of the union.

☐ The employer(s) say that they are not afraid of industrial actions or strikes

☐ Other____________

If so, discuss ways that you could break the deadlock by involving workers and engaging in contract campaign actions.

While you are ramping up the contract campaign, you may also be able to use some of these methods to create more movement at the negotiating table.

Acknowledge, ask, align.

Acknowledge how the employer(s) see the problem. Summarise where the employer is at and where the differences are.

Ask more open questions to understand the problem and listen. “Is this what you mean?”

Align. “I appreciate that you believe you have no movement on _____, but what else could you move on?” “How can we work together to attempt to resolve the problem?
Look for divisions on the employer’s side. If the chief negotiator seems inflexible on a particular issue, ask someone else on their team a question that will draw them into the discussion. Look at the different roles that employer team members play in the negotiations and at the workplace.

While it usually doesn’t work to ask the employer to directly challenge their own team’s position, you can ask questions that reveal that their support is less than enthusiastic.
If the employer team is using a good cop bad cop scenario, show you recognise the tactic and call it out. You might say something like “You both don’t seem to be on the same page here. If you want to take a break and sort out your differences, let us know.”
Utilise a third party, a fact-finder, mediator or arbitrator to help break the deadlock. The materials on Legal Frameworks for Bargaining have information on working with third parties.
Look to see if an “in principle” agreement can be reached if a firm agreement is not possible. Reemphasise interests rather than positions. Look at the opening statements of both sides. Put yourself in the employer’s shoes and experience the situation as if you were them. Which of their interests are important and legitimate?
Know when to end the discussion. “Don’t keep wrestling when the other side only wants to continue to fight, as you will get dirty and they will enjoy it”. Know when to caucus or take a break or change to another topic. If you are up against the wall, you may want to even break off negotiations for a “cooling-off period”, which may also allow you time to build more momentum in the contract campaign.
Suggest a process for getting agreement – for example, a working party or a committee. The committee composition, process and deadlines can be written as a proposal and become part of the contract if the parties agree. You might want to ask the employer and the union team, “If we can’t reach agreement on the substantive issues, can we agree on a process or a joint committee to deal with the issues?
Joint brainstorming. Sometimes the more options we generate, the more likely we are able to construct an agreement. Joint brainstorming can be done with both teams or a subcommittee.
- Before you begin, make sure that the union team members are clear and united on what will be shared in front of the employer(s) and what will not.
- Decide on the group size, not too small or too large. Four to eight is recommended. If possible, sit together or use video-conferencing so you can see each other and interact easily.
- Set some joint basic ground rules, such as confidentiality, no suggestions discarded, no idea is a serious commitment, no immediate criticism of any idea.
- Agree on a facilitator and a recorder.
- Define the purpose, and what you want out of the brainstorming.
- Discuss and record ideas – Use the “all on the wall” or dot prioritising methods to help the group work together more easily. For information on these methods, go to the Took Kit section on Committees.
- Discuss whether the most promising ideas can be improved.
- Draft a report back to the full teams.
Discuss the possible results of getting bogged down and the mutual benefits of a settlement. Don’t threaten. Only inform the employer(s) of actions that the union is actually prepared and about to take.
Don't let fatigue or frustration wear you down. After all the effort you and other workers have put into the bargaining and the contract campaign, you cannot afford to give in on certain points just so you won't have to negotiate anymore.

During the final crunch of bargaining, team members should recognise that negotiators will need extra rest and relaxation whenever there is an opportunity. Limit or postpone as many other activities and obligations as possible.
Bring workers who are not on the negotiating team to observe a bargaining session if the employer is stalling or being difficult. Those workers can then help their co-workers understand the obstacles the union team faces and the need for additional campaign actions. A large group of workers can help add pressure to get the issue resolved.
Submit additionalrequests for information if the employer(s) bring up a proposal that is harmful. For example, if the employer(s) claim they need to subcontract out certain services, request information about the number of times the service is needed, how it has been handled in the past, how much the service will cost and the wages and conditions of the subcontracted workers.
Make minor changes to save face for one side or the other. If one team is finding it hard to admit that it has to change its position on an issue, a relatively unimportant change in wording or the date of implementation may allow them to say "Well, with that change we think we can accept it."
Suggest resolving an issue through a side letter rather than in the contract itself. A side letter is an agreement that is added on to the main contract. It is binding and can be grieved unless you have agreed that it can't. Whether side letters must be specifically renewed when they expire depends on the understanding of the two sides during bargaining.

If the employer(s) are reluctant to break new ground on a controversial issue or to agree to special provisions for a particular group of workers, they may feel more comfortable using a side letter format to emphasise that the agreement is unusual or experimental.

Be sure to include any side letters when the tentative agreement is voted on and when the contract is printed.
Bring in a new face. If the employer(s) are ready to settle, but the relationship with the local union leaders has become stretched to the breaking point, they may find it easier to settle with another authoritative leader in the union, a federation, or a community or union ally. In addition, this increased presence of authority may remind the employer(s) that the union has strong allies.
Step up the pace of bargaining.

This might mean meeting every day instead of once a week. Or it might mean using marathon bargaining sessions, in which negotiators agree to stay in session all day and all night if necessary to reach an agreement.

This approach is supposed to help negotiators get into a rhythm of reaching agreements that will help them find solutions when they get to the toughest issues. It also is supposed to wear negotiators down, so that getting bargaining over with becomes more important than the details of the settlement.

For these reasons, high pressure bargaining obviously will help you if the employer team members are the first to feel the effects, and will hurt you if your own team is the first to wear down or get in the mood of compromise for the sake of compromise.
Slow down the pace of bargaining.

This is especially important if you think the employer may be pushing towards impasse in order to implement a last, best and final offer or to force a strike. Information requests, additional presentations by workers and other experts and forming bargaining team subcommittees to work on specific issues can all help you slow down the bargaining process.

In Nicaragua, vendors were being evicted from the Metro Central stop area. The authorities refused to look for a negotiated solution. 2,500 workers marched against the evictions and to demand a meeting with the municipal authorities. The union leadership used the press to denounce this violation of workers’ rights. This forced the mayor to meet with worker leaders. They negotiated and signed an agreement that came into force the same day.

www.wiego.org/sites/default/files/resources/files/ICC4-Collective-Bargaining-English.pdf

Identify a possible future deadlock in your negotiations or use an actual deadlock that is currently occurring.

Divide into two bargaining teams, one for the employer side and one for the union.

Begin by each team presenting a summary of how they perceive the current deadlock.

Practice breaking the deadlock. Look for ways to involve workers and contract campaign actions.