How Do I Negotiate the First Collective Bargaining Agreement?

The union organizing campaign, followed by the union organizing drive and vote, was undoubtedly a very difficult time for your company. To win employee votes and public support, the bottom line of every union strategy is to make your company and your management look as uncaring of employee needs and as greedy as possible. The union made sure they agitated your employees and generated plenty of bad publicity. It's not a great scenario for approaching the negotiation of the first collective bargaining agreement. Yet, it must be completed in a way that best protects the employee and your company from unnecessary expenses and problems. The bargaining agreement negotiations process requires a blend of research, knowledge, and expertise.  

How should I prepare for the first collective bargaining agreement with a union? 

Preparation is everything. Union contract negotiations are based on legal, organizational, and cost factors, so addressing each of these factors before negotiations start is crucial. You need to identify and understand the: 

  • Critical issues that led to the unionization 
  • Impact on operations of language changes which can be nuanced 
  • Cost implications of language and monetary changes 
  • Relevant benchmarks for discussion on the issues (market data)  
  • Possible outcomes, which include events like agreement, a good-faith impasse, employee strikes, filing of ULP charges with the National Labor Relations Board for failure to negotiate in good faith, etc. 
  • Contingency planning for worst-case scenarios to ensure operations can continue should employees agree to strike 
  • The very clear goals for what you want out of the negotiations (and "give as little as possible" is not a goal)

Sometimes negotiations go smoothly, but they can easily turn into long-term problems when there is a failure to secure an agreement. The difficulties in negotiating the first-time union contract can't be underestimated because the contract terms involve the economic interests of the employers, employees, and even the union, which is the recipient of much-needed union dues.  

Developing Your Strategy Before Your First Collective Bargaining Agreement

You want to develop a strategy beforehand. The strategy will address points like: 

  • What is the upper-cost limit for items involving money, i.e., wage and benefits cost increases, staffing, new safety equipment, etc.? What is the cost at which you will accept a strike?  
  • What is your stance on non-economic items, like management rights and employee seniority for promotions? 
  • How will you respond to inflated union requests based on promises made to employees during the union organizing drive? Are you willing to "meet in the middle," or is there no middle? 
  • How will you respond should negotiations fail. For example, what if your employees decide to strike? How will you keep operations going? How will you fill critical positions? 
collective bargaining agreement

Who should be on your contract negotiating team? 

You need a management negotiation team that represents the company. To prepare for your first collective bargaining agreement, the team should consist of a: 

  • An attorney or labor relations professionals with deep knowledge of labor law and labor relations 
  • Human Resources representative with deep knowledge of employee-related benefits and met or unmet employee needs 
  • Executive-level professional who fully understands current operations and the impact of operational changes on employees, costs, and even the ability to meet customer needs 
  • Financial representative able to figure the cost impact of various proposals 

The team will bargain for individual items and/or a package of items. During the negotiations process, there will be tentative agreements, and those can be leveraged as a package to present. Tentative agreements on items are also a sign of good faith bargaining should negotiations go sour and the NLRB gets involved.  

You will need to learn as much as you can about the union committee members. Research who they represent, what their membership is thinking, the business agent's interests or obligations, etc. Find out where the real power sits because that's who your negotiating team will focus on.  

What are some best practice communication strategies we can apply without overshadowing the union and without losing control of communication to staff? 

Bargaining in Good Faith  

You must bargain in good faith with the union. It’s the law per the NLRA (Section 8(d) & 8(a)(5)). There is a long list of things you cannot do, covering everything from refusing to bargain to failing to meet at reasonable times to making changes to wages or terms of employment before negotiations start. 

It's an unfair labor practice to refuse to negotiate, but you aren't required to come to an agreement or make concessions. This gives you some real power in the negotiations process, except your employees could go on strike!  

However, the NLRA also conveys some employer rights that fall within good faith bargaining efforts. The National Labor Relations Board (NLRB) assesses the negotiation process based on both the things employers can and can't do. Among the things you can do are the following. 

  • Bargain hard as long as you negotiate in good faith with the intent of reaching an agreement. 
  • Lock out your employees if the purpose is to put economic pressure on them to support your bargaining position. 
  • Bargain on any allowed bargaining topic but with the intent of coming to an agreement. 
  • Make minor unilateral changes or unilateral changes where the union has waived bargaining. 
  • Withdraw recognition from a union that has lost majority support when you can demonstrate the union's majority status is rebuttable 
  • Poll or survey your employees concerning their support for the union, once again, if you can demonstrate the union's majority status is rebuttable. 
  • If a negotiations impasse is reached, you can impose terms and conditions as long as they were offered to the union before negotiations failed.  

If a collective bargaining impasse is reached, you can implement the last offer you made to the union. But it comes with the expectation the union will likely disagree that an impasse has been reached and will file an unfair labor practice charge that claims you refused to bargain in good faith. The NLRB determines if an impasse has been reached.  

Communicating with Employees to Leverage Positive Negotiations 

Whether or not you reach an impasse, the negotiation best practices involve before, during, and after communication with employees. The HR Exchange Network suggested nine best practices for achieving successful negotiations while meeting employee needs at the same time.  

  1. Gain an understanding of the employee group constituencies. Learn the needs of each constituency group.
  2. Listen 70% of the time. Hear your employee concerns well before you sit down at contract time. 
  3. Put emphasis on the positive organizational culture that rewards employee successes because it proves you recognize your employees and are willing to work together. 
  4. Utilize the feedback you collected from employees through surveys, performance reviews, and employee-manager/supervisor conversations to identify large and small issues of importance to your employees. 
  5. Meet with your leaders to identify what they would like to see the result of the negotiations and cost out their needs or suggestions. 
  6. Narrow the list to those that fit within your business vision, values, and culture and develop a prioritized list. 
  7. Remember, your opening proposal is subject to changes, so don't reveal everything at once. 
  8. If a stalemate occurs at the negotiating table, take a break from negotiations. You can rework your proposal using data and financial information your professionals provide. Then present an alternate proposal. 
  9. Always remember the union needs union dues because it's their primary source of revenue. The union needs a collective bargaining agreement it sincerely believes the bargaining unit employees will accept.

If a stalemate occurs at the negotiating table, take a break. You can rework your proposal using data and financial information your professionals provide, and present an alternate proposal! #unionnegotiations #collectivebargaining

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Tips for a Successful Negotiation Process

Jennifer Orechwa, Director of Business Development at IRI Consultants, shared some tips for a successful negotiation process.  

  • Ensure that the discussion is positively progressive. Show respect - even if the union negotiators do not! 
  • Be authentic and trustworthy. 
  • Try not to resort to legal-based or power-based tactics unless you have to. These tactics often push the negotiations to a win/lose dynamic, making compromise more difficult. Power tactics are the last resort.  
  • Research the dynamics of negotiation and conflict management. Experience is a great teacher, but learning from others can help you avoid some painful lessons. 
  • Don't expect that you'll know or understand the tactics the union uses. Be prepared to adjust your approach on the fly - as long as you don't lose sight of your goals. 
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What methods do unions use when they negotiate a contract? 

Win-Win Negotiations 

Of course, you want a win-win negotiation process, but what does that mean exactly? Can you try to get the best concessions for your business and maintain a win-win balance? Lawrence Susskind, Ford Professor of Urban and Environmental Planning at MIT and President of the Consensus Building Institute, wrote the book Good for You, Great for Me: Finding the Trading Zone and Winning at Win-Win Negotiation, and he says, "yes!" Applying his principles to negotiating your first collective bargaining agreement, a win-win doesn't require you to: 

  • Automatically make a concession because the union did 
  • Split everything right down the middle  
  • Change your definition of what is really fair 
  • Avoid conflict 

Katherine Shonk is the editor of the Negotiation Briefings newsletter published by the Program on Negotiation for Harvard Business School. She outlines the ways a win-win negotiation process may unfold that may not obviously appear to lead to mutual gains. 

  • Identify a trade-off when interests and priorities are different. 
  • Address "what if?" scenarios when each side has different views of the future and what each side will do if the future does or does not come true, i.e., potential plant closing or layoffs or employee hiring increases. 
  • Consider the time factor because the union wants all its demands met and implemented now, while you may want some things not implemented until certain events take place. 

From the Union Perspective 

"Place a higher priority on discovering what a win looks like for the other person." – Harvey Robbins, business psychologist and President of Robbins & Robbins.   

What Robbins is saying is that you have to understand everything you can about the union at the negotiating table. The employees who voted for the union have conveyed some authority to the union negotiating team members to be their voice at the table. These employees believe the union levels the playing field with management.  

Applying Pressure 

The Teamsters online bargaining manual offers a lot of insights into their perspective on negotiating a strong union contract and the various tactics and ways to apply pressure on employers and successfully negotiate to avoid impasse, break a deadlock and gain concessions. Following are a few of the insights gleaned from this document.  

First, the union encourages employees and other stakeholders to take an active role in helping the union win concessions. These activities are factors in the negotiation process and demonstrate the extent to which unions are willing to go to win what they want. The union is regularly communicating with employees. The Teamsters recommend: 

  • Participating in worksite activities, like surveys and petitions, to show management workers want a "fair settlement." 
  • Employees refusing to do more than the minimum work required or engaging in short work stoppages and rolling strikes (on-again, off-again strikes) 
  • Jeopardizing the company's relationship with stakeholders, like customers and investors 
  • Threatening legal action 
  • Using community action and damaging the employer's public image 
  • Calling for a strike  

Instead of starting the negotiations with a positive perspective, the Teamster manual says, "Assume that pressure tactics will be necessary and start planning for them well in advance of the start of negotiations. It may be tempting to wait to see if you can reach an acceptable settlement without going to all the trouble of developing possible pressure tactics. Unfortunately, by then, time will be on management's side because most strategies and tactics will take considerable time to organize effectively." 

A major element of the union negotiating strategy is communicating with and moving to action the bargaining unit employees. The idea is for the union to show your leadership team they have employees supporting them and are the voice of the employees.  

Negotiating from a Position of Strength 

The union will be preparing for negotiations in a way similar to your preparations. It will gather financial information about the employer, gather wage and benefit data for the bargaining unit, study previous negotiations in the area with competitors (since this is the first contract), and getting employee feedback as to what they want to see in the union contract proposal. The union will analyze employee grievances, evaluate area wage statistics and the economy, and check to see if you are part of a larger company that has contracts with the Teamsters. 

The Teamster manual also discusses the psychology of negotiating and much of what it says also applies to your company negotiating team members. The items mentioned include things like not reacting to the other side's statements, presenting as a unified team, starting with easy items first that both sides can agree on, finding areas of compromise, not trying to guess the other side's position, not inadvertently narrowing your rights and challenging the other side to prove its claims.  

The Teamster training manual also says the negotiating team, union officers, and worksite leaders should be trained on unfair labor practices. "Management is very likely to commit unfair labor practices," it reads. It goes on to say that workers who strike over ULPs proven to the NLRB can get their jobs back. Workers who strike for a better contract don't have to be reinstated if they are permanently replaced.  

During Negotiation Meetings 

Once again, many of the Teamster's suggestions for best practices during the bargaining meetings are the same things your team should do. They include taking well-detailed notes and maintaining composure. The ultimate goal is to avoid an impasse. The suggestions include:

  • Not giving firm rejections on proposals you disagree with 
  • Continuing to make new proposals in disagreement 
  • Requesting detailed information that supports a proposal  
  • Not telling employees or news media the other side has no intention of settling 
  • Agreeing to minor changes to save face 
  • Compromising on some items to win the more important ones 

Can I communicate with workers during contract negotiations? 

Here is some good news. You can communicate with your employees during contract negotiations. It's not just the union that connects with employees. Though some or all of your employees chose to vote for a union, you're still striving to keep all employees engaged. The best way to maintain employee engagement is by keeping your workers informed. However, realize you are walking a fine line between communicating the facts and interfering with union activities.  

Some of the guidelines include:

  • Never make threats 
  • Never make promises meant to convince employees the employer's point of view is the one to adopt for personal benefit 
  • Never make misleading statements 
  • Never force employees to listen or read your messages 
  • Never use your authority to influence employees 
  • Disclose the means of communication to union negotiators 
  • Deliver consistent messaging 
  • Stick the facts of the state of negotiations in employee communication 
  • Never negotiate directly with unions and bypass the negotiating process 

One of the best ways to maintain employee engagement and positive employee relations is with a union negotiations website. It can serve your purposes before negotiations begin by enabling your company to take control of the story. During negotiations, it efficiently keeps employees informed and enables 24/7 access. The website can also share progress updates, factual information on the impact of changes proposed (i.e., wage increases or promotion policies) and clarify misleading statements and false rumors.  

One of the best ways to maintain employee engagement and positive #employeerelations is with a union #negotiations website. It can serve your purposes before negotiations begin! #collectivebargaining #unionfree

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Some companies also issue a virtual newsletter, post online videos, create a FAQ webpage, send texts with links to helpful resources, and so on. The three rules of thumb are to not negotiate with employees, never communicate in a coercive manner and always, always stick with the facts.  

Complex and Delicate Negotiation Process  

Not just anyone can successfully negotiate a union contract. The leaders involved in the process need scenario training and manager coaching and support, and your company should access whatever external resources it needs to ensure you get the very best contract possible for your business and employees. 

It's a difficult process and one that can take many months. Bloomberg Law researched the average time it takes to ratify a first collective bargaining agreement. The answer is it takes an average of 409 days. In the healthcare industry, the average time to a first contract was 528 days. In the construction industry, it was 421 days. In five out of 12 industries, it took more than a year. 

Clearly, securing the first collective bargaining agreement is not easy. That's why so many companies turn to professional resources like Projections, an IRI company, for support with your negotiations strategy, contract comparisons, competitive research, media relations, leadership training, security prep, employee communications, corporate campaign tactics, and even your negotiations website development. During the year or more it takes to secure a collective bargaining agreement, you want all the right pieces in place for success.   

About the Author Walter Orechwa

Walter is Projections’ CEO and the founder of UnionProof & A Better Leader. As the creator of Union Proof Certification, Walter provides expert advice, highly effective employee communication resources and ongoing learning opportunities for Human Resources and Labor Relations professionals.