from today's L.A. TIMES, Dec. 21, 1997:
Sunday, December 21, 1997
COLUMN LEFT / ELLEN J. DANNIN
The System Is Stacked Against the Unions
A method fairer than collective bargaining would meet the needs of employer
and employee.
By ELLEN J. DANNIN
Suppose you were an employer whose employees were represented by a
union. Now suppose that the labor laws you bargain under state that
when the parties reach an impasse, you, the employer, get to impose
your final offer. What would you do?
When I asked my 12-year-old daughter this, she said, "Well, duh! I'd try to
get to an impasse so I could impose whatever I wanted. Actually, I'd offer
things I really wanted and that the union would hate. That way I'd get my way,
and we'd be at an impasse." Then she asked if this was just some joke.
In fact, this is the way U.S. labor laws work and have been working for the
last couple of decades. There are some legal details, of course. The employer
who bargains in bad faith can't implement his final offer. However, since the
mid-1980s, the National Labor Relations Board has allowed employers to come
to the table with a strong view as to what they want and make no movement.
Employers can propose terms they know will be completely unacceptable and
are certain to lead to an impasse. None of this is considered bad faith
bargaining.
As a result, it's not hard for an employer to do no real bargaining, but
also not to have bargained in bad faith.
The best that unions can do under this system is make concessions in an
effort to show that the parties are not at an impasse. They know that if the
workers strike, the employer can replace them. Although the law forbids firing
strikers, it allows an employer to permanently replace them. As my labor law
professor said back in school, "Query: Would you rather be fired or permanently
replaced?"
Implementation is now a common feature of U.S. bargaining. Among the
employers that have implemented their final offers in recent years are
Caterpillar,
the Detroit News, the National Football League, Major League Baseball owners,
Exxon, International Paper and Bridgestone/Firestone.
The law that allows this practice makes a tremendous difference in how
collective bargaining works in the U.S. and limits how effective unions can
be. I
recently gave my labor law class a mock bargaining exercise. The students were
all given the same issues for bargaining but had to negotiate under three
different
legal systems. One was the U.S. system. In the second, strikes were illegal and
if an impasse was reached, an arbitrator would pick the best offer. In the
third,
strikes and lockouts were legal, there could be no replacements, and no changes
could be made until both sides agreed.
I divided the students into management and union caucuses so that they
could formulate their strategies and plan how to respond to the other side's
tactics. The differences were stunning. Under the U.S. system, the management
caucus tried to figure out how to make it appear that they were bargaining
while
trying to get to an impasse so they could implement. The union tried to decide
what concessions they could make to stave off impasse and whether they dared
risk a strike. No one was thinking about how to reach a bargain that would best
meet the needs of all parties.
Under the other systems, both sides realized that they would have to make
concessions and narrow their differences. Both planned to engage in real
bargaining.
My students' reactions mirrored real life. A recent study I was involved in
found that 50% of union negotiators were concerned about impasse and
implementation; 30% said the union had made concessions solely to avoid
impasse; 56% said that the employer had told them that impasse or
implementation was likely and in 26% of the negotiations in which impasse was
threatened, the employer did implement.
In other words, implementation plays a destructive role in U.S. collective
bargaining. It practically forces employers and unions not to bargain. It
offers
employers such a large reward for not bargaining that it would be an
extraordinary employer who could resist the temptation by actually
bargaining as
the NLRB intended.
The recent International Labor Organization's World Labor Report 1997-98
asks why unions have declined. The report points to economic issues and
globalization but gives scant attention to the laws in each country.
There can be no doubt that allowing implementation upon impasse is
particularly pernicious. It has reduced U.S. collective bargaining to a shadow
play in which the image of bargaining is projected onto a screen while
behind the
screen, the reality is only an effort to avoid or reach impasse.
- - -
Ellen J. Dannin Is Professor of Law at California Western School of Law in San
Diego and the Author of a Book on New Zealand Labor Law
Copyright Los Angeles Times
in pen-l solidarity,
Jim Devine
