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The traditional approach to collective bargaining has been management and union bargaining teams sitting in a room together and negotiating across a table. Is it time for this approach to change?
<!– –>There has been increased use of various online conferencing applications during the time of COVID-19 for conducting workplace business. Are these new technical approaches suitable for collective bargaining and should they replace all face to face bargaining?
As discussed below, all bargaining which is not face to face will be described as remote bargaining whether it be online or telephonic.
I have spent countless hours sitting at the bargaining table mediating numerous collective bargaining agreements. More often than not, these negotiations took place in a conference room without windows for long hours at a time.
I have also mediated remote bargaining from my home office. I’ve mediated some contracts where the parties utilized a combination of both methods, with some people in the room and some negotiators participating remotely.
Finally, I have mediated contract negotiations where the bargaining started out as face-to-face and at a certain point became remote bargaining. Through these experiences, I have learned there are both good and bad aspects to remote bargaining and face-to-face bargaining.
For bargaining units where all the potential participants in bargaining are located at the same facility, engaging in remote bargaining may not be necessary because it is just as easy to meet in person as it is to use an alternative process.
However, there are times, such as during a facility lock down like what is happening currently with COVID-19, where even these locations may need to use alternative approaches to bargaining. For bargaining units which have geographically dispersed bargaining unit members, using remote processes may have a greater relevance. This has become even more important in light of the Trump Executive Order which mandates Agencies not pay travel and per diem for union negotiators even though payment of travel and per diem has been considered a negotiable subject by the Federal Labor Relations Authority (FLRA).
The Pros and Cons of Face-to Face Versus Remote Bargaining
In deciding which approach or combination of approaches to use, the parties to a negotiation should weigh the pros and cons of each process. Neither process is a perfect answer to successful collective bargaining.
The following should be considered:
Face to Face Bargaining
Face to face bargaining provides the negotiators the ability to develop relationships which can lead to trust between the parties. As these relationships develop through the course of bargaining, they can lead to breakthroughs not imagined at the beginning of the process.
It is not infrequent, in my experience, that during bargaining, a bargainer on one side or the other will say something which will be considered wholly inappropriate by the other side. This can result in participants storming from the bargaining table in righteous indignation or even coming close to going over the bargaining table with intent to do bodily harm. These blowups take time to work through. At the bargaining table, it’s possible for the parties to work through a resolution to the incident. It would be much more difficult to patch things up remotely without everyone participating face-to-face to come to a solution.
The face to face interaction between the negotiators tends to be more conducive to problem solving when engaged in traditional positional bargaining. When people are in a room together and being watched by their fellow negotiators as well as their opponents, they are more engaged in the process. Additionally, the body language of negotiators can send clear messages about what they are thinking about what is being said.
Being face to faces encourages all bargainers to engage in the negotiations. It is too easy for a negotiator on the end of a telephone line to tune out or engage in other activities and just not pay attention.
The cost of bringing a number of negotiators from across the country to participate in bargaining can be considerable. It is not unusual for term bargaining to cost hundreds of thousands of dollars in travel and per diem. There is a cost of using various online platforms for bargaining but not nearly as much as the potential cost of travel and per diem.
Face-to-face bargaining can lead to a perception by management of drawn out bargaining because union bargainers are stalling and protracting the bargaining solely to extend the time they are on travel and per diem and away from their normal duties.
During face-to-face bargaining, small disagreements or misunderstanding due to unintentional body language, sidebar conversations, or side comments can often lead to emotional outbursts and disruptions in the flow of negotiations.
The number one advantage of remote bargaining is cost savings – principally for travel and per diem.
Remote participation can allow people who would not typically be able to be present for various reasons to participate in the bargaining process either full time or on an occasional basis.
Subject matter experts (SME) who may be located at various locations in the country may be able to provide their expertise to the bargaining teams remotely. It is rarely necessary to bring a SME to the bargaining table if they are located somewhere other than where bargaining is taking place.
Because remote bargaining, when utilizing both video and shared screen capabilities, forces participants to focus on what is being presented and what the other party is saying, it can reduce the amount of overtalking that can often happen during face-to-face negotiations, especially when discussions become heated.
The quality of the remote participation depends on the technology being used. In my experience, it is difficult for bargainers to participate or even stay involved when the technology is simply over a telephone conference line.
As I always tell the parties bargaining, it is a form of hand-to-hand combat which requires all the participants to be fully engaged and working with the people on their team but also working the other side. The more personally involved they become the greater chance for a solution. If you can’t see the other side, they are merely a disembodied voice which you may or may not choose to listen to and who may also choose not to listen to you.
Bargainers can get bored and become less attentive when they are not face-to-face. There is often less personal interaction between bargaining team members as well as team to team communication.
Sometimes the way to get an agreement is by using various tactics to apply pressure or force concessions. These strategies work best with face-to-face interaction and may not have the same impact when the other side can simply toon you out.
Based on considering the pros and cons, if you decide to use remote bargaining or a combination of remote and face to face, the first thing you must do is negotiate ground rules which establish the bargaining processes you will use for bargaining.
The first discussion of bargaining processes usually appears when negotiating ground rules.
In the past, during ground rules discussions, there have been many disputes over the use of face-to-face bargaining versus alternative approaches, but it was not necessarily a big sticking point. Where there were disputes, the parties usually agreed to transitioning from face-to-face bargaining to a remote system of bargaining at a certain point in time, usually based on a specific date or number of negotiation sessions completed. More commonly, disputes were about how many bargainers and the location and length of the bargaining, not whether bargaining would take place face-to-face or remotely.
Below are some things to consider when negotiating ground rules when one party to the negotiation, or both, wants to participate in remote bargaining either exclusively or in a combined approach:
1. Bargaining does not have to be solely face-to-face or solely remote. The parties may agree to do a combination of face-to-face and remote. Such a combined approach gives the negotiators time to get to know each other and gain an understanding of where the other side is coming from during negotiations. It provides an opportunity to develop a relationship which can be more difficult to develop when only participating online or telephonically. By the time the negotiations transition from traditional to remote, the parties have a sense of the other side’s position and can better communicate in the virtual environment.
2. Using a combination approach should have a clearly delimited break point when both sides agree they will transition to remote bargaining. It can be based on a certain number of sessions at the bargaining table (example: after six weeks of face-to-face bargaining the parties will transition to remote bargaining) or, it could be based on a set date when the transition will take place irrespective of the number of sessions that have taken place.
3. The remote technology that will be used should also be set forth in the ground rules. The technology available varies considerably from agency to agency. The most frequently used technology has been a conference line available to all of the negotiators. With the advent of ZOOM, WebEx, Google chat, and similar online conferencing capabilities which allow for shared screen technology and video of all meeting participants, each person can easily see each other and participate in the conversation.
4. Where possible, as touched on in number 3 above, it is highly recommended that whatever technology is used not only have video capabilities but also have the ability to screen share so that contract language can be seen by all participants. This also requires that the ground rules provide that all proposals and counter-proposals will be done in digital format easily emailed back and forth between the parties. This real time approach to contract language saves considerable time and reduces confusion as to what was agreed to and not agreed to by the parties.
5. Rules for how the negotiators communicate internally must also be established. A virtual caucus requires technology which allows each team to communicate with its team members without the other side being present. Just as in face-to-face negotiations where a designated caucus room is established, a designated conferencing capability must also be established for virtual caucuses.
6. The ground rules should deal with which bargaining processes (face-to-face or remote) will be used for mediation and/or impasse. How will the parties deal with a mediator who requests in-person negotiations when all negotiations have been remote should be covered. This also applies to the impasse process.
7. The process for how proposals will be reviewed jointly by the parties and how changes to proposal language will be done and by whom should be reflected in the ground rules. Using an administrative aide (or as my firm calls them collective bargaining assistant) can be extremely helpful when bargaining remotely. This person would be a neutral party who could do such things as controlling who is seen on a video screen when using an App such as ZOOM. This person also would make changes to contract language which will show up on the screen for all participants to see and keep track of the status of what has been negotiated and what needs to be completed. My experience, when coming into negotiations to mediate, is that it is not infrequent to find that neither side is 100% sure what has been agreed to and what is still open for negotiations. Time has to be spent determining exactly what language has been agreed to and which is still in dispute and what were the last proposals for each side with respect to the outstanding non agreed to issues. The use of a collective bargaining assistant can reduce this time considerably.
The Legal Status of Bargaining Remotely
The application of the Federal Service Labor Management Relations Statute (Statute) and FLRA regulations regarding bargaining are not different when the parties engage in remote bargaining. Something is negotiable or non-negotiable regardless of what process is used.
There is no statutory preference for what process the parties use for bargaining. The Statute is silent on a specific process for bargaining primarily, if for no other reason because when the Statute was passed many of the current technologies for remote bargaining did not exist.
The parties can choose interest based bargaining or traditional bargaining or face-to-face or remote bargaining. However, the FLRA has ruled that one party cannot force the other party to engage in interest-based bargaining if they choose not to.
It is unknown how the FLRA would rule when faced with a party insisting to impasse on wanting remote bargaining and whether the FLRA would consider remote bargaining to be a permissive subject of bargaining.
Does one side have the right to insist on face-to-face bargaining as a statutory right and remote bargaining to be permissive? Since in the past face-to-face was more or less the preferred approach, how the FLRA would address issues related to forced remote bargaining is not clear.
However, the Federal Services Impasses Panel, when faced with issues related to the process for bargaining in ground rules, has quite often come down in favor of approaches which are the most effective and efficient which it has defined as saving the government money.
As shown, there are pros and cons to both face-to-face bargaining and remote bargaining. When choosing which approach to use, you should keep in mind the history/relationship of the parties engaging in collective bargaining.
If the parties know each other well and have a long experience in bargaining together some amount of remote bargaining may work well. If this is a new relationship in which the parties have little or no experience working with each other and the parties are relatively inexperienced in bargaining a term agreement, face-to-face bargaining at least in the beginning may be the better option.
A combination of both processes can work well for the parties ready to work toward mutual agreement and willing to communicate. It can mitigate the cost of travel and per diem and allow the parties to get the greatest benefit from remote bargaining.
Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.