Dispute Resolution and Regulation

1
Dispute Resolution and Regulation

• Interest Disputes
• Those that arise during a contract negotiation
  when the parties cannot agree on the terms of a
  new contract.

2
Dispute Resolution and Regulation

• Rights Disputes
• Those that occur during the term of an existing
  contract and involve disagreements over how the
  contract should be interpreted.

3
Diversity in Impasse Resolution

• Private Sector
• Interest Disputes
• Mediation - Strikes
• Rights Disputes
• Grievance procedure
• Binding arbitration

4
Diversity in Impasse Resolution

• Public Sector
• Interest Disputes
• Mediation - Fact-finding - Arbitration
• Strikes (in some states for non
• essential employees only)
• Rights Disputes
• Grievance procedures - Binding
• arbitration

5
Historical Patterns of StrikesWork stoppages
involving 1,000 workers or more - 1947-96

• Number of Stoppages

6
Historical Patterns of StrikesWork stoppages
involving 1,000 workers or more - 1947-96
7
Historical Patterns of Strike

• 1930s was a period of rapid growth of
  unionization and a substantial increase in the
  number and size of strikes.
• During WW II the labor movement pledged to
  refrain from strikes to aid the war effort.
  Despite this pledge there was no drop in the
  number of strikes but there was a decline in
  their duration.

8
Historical Patterns of Strike

• After the war, readjustment to a peacetime
  economy was accompanied by a wave of strikes of
  unprecedented proportions.

9
Historical Patterns of Strike

• Time lost due to strikes over the past decade and
  a half has been relatively small when measured
  against the economys available work time.
• Put in perspective, however, the time lost to
  strikes during this period has been one-tenth the
  time lost due to work-related accidents.

10
Historical Patterns of Strike

• Historically, most strikes (60) occur during
  negotiations,with less than 9 involving
  negotiations of an initial agreement. Only about
  13 occur during the term of the agreement.
• Most strikes involve wages. Other issues
  contributing to strikes include Union Security,
  Job Security, and Plant Administration.

11
Historical Patterns of Strike

• Studies of strike at the aggregate level indicate
  that strike activity increases during periods of
  low unemployment and high inflation.
• At such times, it is harder for employers to find
  replacement workers and easier for strikers to
  find temporary employment during a work stoppage.

12
Historical Patterns of Strike

• Studies of Strikes Reveal Certain Causal Factors
• Strikes tend to take place in highly unionized
  regions of the country.
• Strikes are more likely in large bargaining units
  including high proportions of males.

13
Historical Patterns of Strike

• Strikes are less likely where bargaining unit
  wages have kept up with inflation.
• Additionally, strike activity correlates
  positively with more labor-intense industries and
  with declines in product market demand.

14
Historical Patterns of Strike

• Research indicates that strikes in previous
  contract rounds decrease the probability of
  strikes in subsequent negotiations.
• Individual willingness to strike for higher pay
  has been found to correlate positively with
  youth, minority status, and the absence of
  expected financial hardship.

15
Types of Strikes

• Economic Strikes (Primary - Secondary - Partial)
• Intended to resolve a Bargaining Impasse.
• Can only occur in connection with contract
  negotiations.
• Unfair Labor Practice Strike
• Purpose is to force the employer to cease
  committing what the union believes to be unfair
  labor practices. It may or may not occur during
  negotiations.

16
Types of Strikes

• Wildcat Strikes
• Conducted by groups of workers without the
  authority and consent of the union.
• Sympathy Strike
• Refusal by one union to work for its employer to
  pressure another (or the same) employer in it
  dealings with a second union.

17
Types of Strikes

• Jurisdictional Strike
• To pressure an employer to assign work to the
  members of one bargaining unit rather than
  another or to pressure an employer to recognize
  one union as representative of its employees when
  it already recognizes another.
• Lockout
• Management's equivalent of a strike. It can
  only occur legally when an existing labor
  agreement has expired and there is truly an
  impasse in contract negotiations.

18
Corporate CampaignsStrike Substitutes and
Supplements

• With the significant decrease in strike activity
  over the last 15 years the unions have been
  forced to seek new methods for pressuring
  management.
• One such strategy has been the
• Corporate Campaign

19
Corporate CampaignsStrike Substitutes and
Supplements

• Examples of such tactics include
• Appealing for help from outside parties having
  interests in the employers organization, such as
  creditors, stockholders, interlocking directors,
  and the public,

20
Corporate CampaignsStrike Substitutes and
Supplements

• Examples of such tactics include
• Running sophisticated public relations campaigns
• Building coalitions with other unions and
  nonlabor groups

21
Corporate CampaignsStrike Substitutes and
Supplements

• Examples of such tactics include
• Conducting boycotts
• Lobbying legislative and regulatory bodies
• Employing nonstrike in-plant actions, and
  anything else that might work.

22
Corporate CampaignsStrike Substitutes and
Supplements

• Corporate Campaigns are used most successful when
  used to compliment organizing drives.
• J. P. Stevens Company vs. ACTWU

23
Impasse Resolution

• Impasse means that the parties have exhausted
  their own efforts to reach agreement.
• Resolution of the situation is difficult at best
  for the parties to deal with alone and next to
  impossible when either one or both parties do not
  want to reach a settlement.

24
Impasse ResolutionWhy Not Settle ?

• Break the Union
• Slit the Membership
• Undermine the Leaders
• Empty the Treasury
• Hold off for a better offer

25
Impasse ResolutionThe Nonparticipative Observer

• Sometimes it helps a discussion merely to have an
  outside observer present.
• A third party can sometimes be tactically useful
  merely by encouraging both sides negotiators to
  talk.

26
Impasse ResolutionThe Active Mediator

• Full-fledged mediation is participation of a
  third party in the negotiation process, but with
  the final decision still resting with the
  principals.

27
Impasse ResolutionThe Active Mediator

• The mediators role can be
• Tactical
• Strategic
• or Both

28
Impasse ResolutionThe Active Mediator

• The traditional use of bargaining tactics
  requires one to try to learn the other sides
  resistance point while hiding ones own.
• Mediators can be vary effective when they
  identify the resistance points of both sides.

29
Impasse ResolutionThe Active Mediator

• The mediators job is one of assisting
  communications and perhaps offering alternatives.
  
• To discover resistance points, the mediator must
  have the almost absolute trust of both sides.

30
Impasse ResolutionThe Active Mediator

• They must trust him to be discreet about what
  they reveal, and each side must trust him not to
  use such confidences to its disadvantage.

31
Impasse ResolutionThe Active Mediator

• The mediator does not need confidential
  information from the parties to perform the
  Strategic Function.
• It does not necessarily require high trust from
  the negotiating parties in so far as the mediator
  is not in a position to violate a confidence that
  he or she did not receive.

32
Impasse ResolutionFMCS

• Historically, the Federal Mediation and
  Conciliation Service has provided mediation
  services to parties in the private, federal, and
  nonfederal public sectors.

33
Impasse ResolutionFMCS

• The FCMS was established as an independent agency
  in 1947 (Taft-Hartley) with the stipulation that
  government facilities for mediation and
  conciliation should be made available to the
  parties in order to prevent or minimize
  interruption of the free flow of commerce growing
  out of labor disputes, to assist parties to labor
  disputes and to settle disputes through
  conciliation and mediation.

34
Impasse ResolutionFact Finding

• A variation of mediation in which an outsider (or
  panel of outsiders) assist in certain ways in
  achieving a settlement, but with the settlement
  itself still remaining entirely in the voluntary
  and mutual control of the parties.

35
Impasse ResolutionFact Finding

• The typical report of a fact-finder traces the
  history of the particular dispute, identifies the
  issues, and states the position of both the
  parties on each issuethe fact-finder may or may
  not recommend terms of settlement

36
Impasse ResolutionFact Finding

• There are several objectives of this procedure
• Postpone a strike
• Public disclosure - public pressure
• Identify new facts
• Justify a concession to constituents
• Help a negotiator become
• uncommitted. (save face)

37
Impasse ResolutionArbitration

• Once a new contract case (interest) has been
  assigned to an arbitrator, both parties lose
  control over the outcome.
• And where as in grievance arbitration, (rights)
  the nature of each case limits the amount of
  damage that can be done by an arbitrators
  decision.

38
Impasse ResolutionArbitration

• For a number of very good reasons, most
  private-sector unions, and managements in the
  United States persistently avoid interest
  arbitration, and adamantly oppose it imposition
  by law.
• Interest arbitration delegates more power to
  outsiders than the parties are usually willing to
  allow.

39
Alternative Impasse Resolution Methods

• Labor-management conflict can be resolved through
  various dispute resolution systems.
• Some systems are based on POWER, some on RIGHTS,
  and some on INTERESTS and RECONCILITATION.

40
Alternative Impasse Resolution Methods

• A strike is an example of a Power system.
• Arbitration is a system based on Rights.
• Mutual-gains-bargaining and win-win are
  approaches that stress Reconciliation and
  Interests.

41
Alternative Impasse Resolution Methods

• Strikes and arbitration are expensive and
  time-consuming.
• In the last ten years a new has emerged that
  stresses reconciliation and the interests of each
  side the approach is referred to as win-win or
  mutual gains bargaining (MGB).

42
Alternative Impasse Resolution Methods

• Utilization of mutual gains approach changes the
  negotiations process, affects the resolution of
  negotiation impasses, and introduces the concept
  of Interest Mediation.

43
The Public Interest in Impasse

• The problem of public emergency strikes, and how
  to prevent them or soften their impact is a
  matter of serious concern.

44
The Public Interest in Impasse

• Section 8(d) of the Wagner Act, as amended by the
  Taft-Hartley Act, requires a 60-day written
  notice to the other party by either party
  intending to terminate a contract when it expires.

45
The Public Interest in Impasse

• The FMCS must also be notified within 30 days of
  the notice to the other party.
• In the case of hospitals the notice requirements
  are 90 and 60 days.

46
The Public Interest in Impasse

• Whether some strike causes an emergency is a
  matter of both intensity and scope.

47
The Public Interest in Impasse

• A strike in a small hospital may create an
  intense situation while a national coal strike
  effecting 50 million people would effect few
  lives in any immediate or significant way could
  never-the-less have a devastating impact on the
  general economy.

48
The Public Interest in Impasse

• Q. Can strikes be prevented?
• A. No. Not with any real
• effectiveness.

49
The Public Interest in Impasse Compulsory Waiting
Period

• A compulsory waiting period in emergency
  situations is the course our society has taken.
• Taft-Hartley incorporates provisions for the
  handling of national emergency labor disputes.

50
The Public Interest in Impasse Compulsory Waiting
Period

• Action under the law is initiated by the
  president when a threatened or actual strike or
  lockout affecting an entire industry or a
  substantial part thereofwill, if permitted to
  occur or to continue, imperil the national health
  or safety.

51
The Public Interest in Impasse Compulsory Waiting
Period

• The president appoints a board of inquiry to
  report back on the facts.
• The strike or lockout is then enjoined if the
  president thinks it is warranted.
• Board reconvenes in 60 days and reports the
  status of negotiations.

52
The Public Interest in Impasse Compulsory Waiting
Period

• The employers last offer is also reported and
  within 15 days the NLRB is to take a secret
  ballot on that offer.
• After the results of the ballot are reported, the
  injunction is discharged and the board of inquiry
  reports the status of the dispute to the
  Congress, along with possible recommendations.

53
The Public Interest in Impasse Evaluation of the
Emergency Powers

• The origin of Taft-Hartley emergency procedures
  can be directly traced to the post-World War II
  strike wave.
• Use of these procedures has decreased
  dramatically over time.