Conducting the Negotiations

Either party may be able to initiate bargaining. There may be deadlines such as a 60-day written notice. Failure to send a notice in a timely manner may create a “freeze” on the current collective agreement for a fixed period of time, such as one year.

The opening statement sets the tone and atmosphere of the negotiations. It should establish the legitimacy of the committee, review broad themes and highlight the union’s key proposals and mandates.

If possible, set a tone of mutual respect and problem-solving. Focus on the workers’ problems, not on the behaviour of the employer(s). Avoid interrupting, abusive or extreme statements and loss of control. Pause and think before you act. Take pride in the collective strength of the union.

The opening statement is important because it allows the union to present their reasoning and interests before the negotiations over specific proposals and counter-proposals begin. Once negotiations begin, when someone hears a proposal they may begin constructing a response in their head rather than fully listening. 

The opening statement is usually followed by the negotiation over ground rules and the presentation of the opening proposals.

Ground rules are usually agreed to prior to, or on the first day, of bargaining.  Ground rules are important, as they are the bargaining over how to bargain.

Immediately after every negotiating session the bargaining team should meet and work with the arbolito, workforce delegate and contact campaign leaders to draft a collective message about how the negotiations are proceeding. Use the time to coordinate and plan campaign actions and gather information and feedback from workers.

If there is no significant progress in negotiations, make sure and let workers know that the parties met and there was no progress. Not reporting anything will leave workers open to rumours and misinformation from the employer(s) and separate workers from the bargaining process.

As bargaining intensifies and deadlines for settlement get closer, workers will likely face increasing misinformation and repression in the workplace. The employer(s) may ask managers to get a “read on” or pressure workers to determine how serious the union’s proposals are and whether the union is capable of taking strong action.

Don't let the employer(s) insist on unnecessarily long bargaining sessions that keep team members away from the worksite. When the employer(s) are ready to bargain seriously, then long hours are worth it. But before then, negotiating team members can do more to win a good agreement by visiting worksites, communicating union goals and the bargaining process to other workers, and assisting with contract campaign activities. 

At the beginning of negotiations, you will present the employer(s) with your opening package of proposals or “claim”. In some negotiations, the employer(s) will also prepare an opening proposal. In others, the employer(s) may receive your opener at the first bargaining session and prepare a response for the next negotiating session.

Prepare evidence and arguments to support and defend each of your proposals. These preparations are not only designed to convince the employer(s) that you are right. The employer(s) decide what to concede in negotiations based on your bargaining power, not your debating skills. Your ability to explain and defend your proposals is important, however, because it shows the employer(s) that you are prepared to argue your case with the membership, customers, clients, investors, the news media, the general community, or others whose opinions the company may be concerned about.

Explain the benefits of the union proposals to the employer(s), the industry and the community, as well as to the workers. For example, a wage increase benefits not just workers but may encourage long-term stability by recruiting and retaining experienced workers, saving turnover and training costs, improve customer service and product quality, and improve the local and national economies and industry standards.

Good research and preparation sends a signal to the employer negotiators that they will not be able to get away with misleading propaganda.

For instance, if the employer(s) say, "This proposal would cost us X dollars over the next year," it has a significant impact if one says, "No, actually we already figured it out and it would only cost Y dollars." Look for facts, reason, emotion and examples to defend your proposals. 

Involving as many members of the team as possible in presenting the proposals sends a message to the company(s) that your committee is actively involved, firmly behind the proposals, and prepared to organise membership and community support. This does not mean that committee members should feel free to speak whenever they feel like it - just the opposite. It means that participation of committee members should be planned so the employer does not get mixed messages.

When making or listening to proposals, don’t show emotion unless it’s planned.  Bargaining team members should not let the employer(s) know their reaction to presentations or statements until there has been a discussion among the team. Present yourselves as one unified union team, not a collection of individuals or representatives of particular departments or groups of workers. You do not want to encourage the employer(s) to try to play one group of workers off against another.

Caucuses are usually called by the chief negotiator. If a bargaining team member feels the need to caucus, the usual procedure would be to pass a note to the chief negotiator.

Some negotiations require spending substantial negotiating time in caucus, while other negotiators keep caucus time to a minimum. The time spent in caucus will depend not just on your own teams needs, but the needs of the employer team as well.

Significant caucus time may be needed to prepare proposals, presentations and counter-proposals and to be in contact with workers. Caucus time is not down time. If there is open time, use it to assist with the contract campaign and communications with workers.

A caucus is usually chaired by the head of the negotiating team and should be run in an orderly way. Decisions should be made by consensus whenever possible. The goal is not simply to reach a majority decision by motions and voting, but to resolve, if possible, conflicts and problems that committee members have raised and build the collective team.

Possible uses for a caucus:

• Time to discuss a new employer proposal. What exactly does the employer's proposal mean? What does it tell you about the employer’s intentions in the negotiations? How should the union team respond to it, when should that response be provided, and who should do the talking?
• To keep the union team united. The employer(s) may use statements or proposals to try to divide and conquer by appealing to special interests of different worker subgroups. Talk openly about the employer's tactics and how to avoid being divided.
• To get emotions under control. When team members are angry with the employer(s) or with each other, let people blow off steam until you can have a calm discussion about your next moves.
• To send the employer(s) a message. For example, you might call for a caucus after the employer(s) make a disappointing proposal on a particularly important issue. The employer(s) will realise that you wouldn't have caucused if that proposal had sounded reasonably good or if the issue weren't important. You can use the time to organise campaign actions about the issue.

You can also ask the employer(s) to take time to caucus so that they have more time to consider what improvements they can make in a proposal.

• To plan for the next subject to be discussed. You may need to discuss what that subject should be, or, if that has already been decided, how to handle the union's presentation.
• Don't ever be embarrassed to call for a caucus. If there is any doubt about the team's game-plan at the table, it is better to take five minutes and straighten it out behind closed doors than to reveal divisions in front of the employer.

Once each proposal is agreed to, the chief negotiators for both parties will initial and date the proposal and it will become a tentative agreement on that subject. Make sure that all tentative agreements (TAs) are initialled and in writing.

Whenever possible, work from the union proposals as a basis to create the tentative agreement. Chances are better that, even after some compromises, the outcome will be closer to what the union wanted. 

Once the parties have signed off on tentative agreements that cover all of the proposals on the table, you will have a complete tentative agreement to be taken to the workers for them to accept or reject. The completed tentative agreement that the two parties have signed is not a contract until workers have voted to accept it. 

One bargaining team member should be assigned to take notes during each session. A second person can back up the primary note-taker and at the end of the session the notes can be consolidated into one document.

Each bargaining session should be documented and include the names of all those present, where the session was held, the date of the session, the time the session started and ended, if there were caucuses (when and what happened during the caucus), agreement or disagreement on any issues, and the agreed date of the next session.

Notes of the conversation should show the beginning and ending time for each major discussion, and indicate each major point made, who made it and what evidence or argument they used to support it. 

If the discussion is fast-moving, the note-taker can write down key words and then immediately after the session fill in the rest. Notes should be typed and checked as soon as possible after the session to make sure that they are complete.

Notes are important. The employer(s) are less likely to distort what was said at the table to workers and the public if they know you have a written record. The team may want to refer to notes between bargaining sessions to clear up any uncertainty about what position the employer actually took on an issue. Notes can become evidence to support legal charges of bargaining in bad faith.

The discussion that led up to agreement on a particular part of the contract may be used later as evidence in arbitration cases. Sometimes arbitrators have to decide what the two sides "really meant," and notes from negotiating sessions may influence that decision. For this reason, you should challenge employer statements that you don't want them to cite later to an arbitrator. If you don't agree with what the employer(s) are saying about what a contract clause means, say so rather than waiting to resolve the disagreement later. Otherwise, the employer(s) will be able to argue that they gave an interpretation during bargaining and you didn't object.

Compile a file for each contract proposal. In each section, you can keep the old contract language, proposals and counter-proposals, research materials and evidence, and notes from negotiating sessions on that proposal.

A copy of the bargaining notes should be stored in a central location for easy reference as part of the union's permanent records.

At times, it may be useful to talk with the employer(s) "off the record." This can give both sides a chance to explore possible solutions. Agree that no notes will be taken. Also make sure that what is said will not be repeated. Keep in mind, however, that an agreement to go off the record can be broken. Also, whatever is said off the record will still be sending a message to the employer(s) and setting a direction for the negotiations.

Sidebars

A sidebar is an off-the-record meeting that does not involve the complete negotiating team. For example, the company's chief negotiator may suggest that they meet privately with the union's chief negotiator to discuss possible compromises. 

Sidebars can be a useful tool to explore possible solutions that one or both sides cannot discuss openly. Sidebars also can be used to split union negotiators from their teams or the workforce. Some unions do not use side bars at all or require that more than one union leader attend any sidebars.

Union negotiators should agree to a sidebar only if…

• The negotiating team as a whole has authorised participation and instructed the union representatives on what to say and not to say.
• The sidebar meetings do not last very long. If a negotiating team has to wait days or weeks while a few individuals are meeting privately, tensions and suspicions are bound to develop.
• Union representatives to the sidebar report immediately to the rest of the team on the outcome.
• The union representatives do not claim the authority to agree to anything without approval and ratification by the collective.

A counter-proposal is a response to a proposal by the other party. A series of proposals and counter-proposals are usually made before a tentative agreement on the issue is reached. Keep a record of counter-proposals in the negotiating notes.

Try not to say “no” to employer proposals. Offer an alternate proposal of your own as a counter. 

Early in negotiations you might not want to limit your options by completely agreeing to an employer proposal. You can instead say, “Yes, that may be satisfactory if we can get some other matters cleared up.”

Either side can make a “last, best and final” offer to the other, the union to signal that they are ready go to impasse and take industrial action and the employer to signal they are ready to go to impasse and implement the employer’s “last, best and final” offer. 

There may be legal requirements for fact-finding, mediation, or arbitration before a last best and final offer can be made or impasse reached. The section on Legal Frameworks for Bargaining contains more information on impasse, fact-finding, mediation and arbitration procedures.

Make a last, best and final offer when it is in reality your final offer. If you make a last, best and final offer and then continue to negotiate, when you do finally reach your “last, best and final offer”, the other side will not believe that is your final offer and will continue to push you.