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Thread: Surface Bargaining

  1. #1
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    Default Surface Bargaining

    Our newly formed L.U. is about to start negotiations which we have reason to believe will be nasty as management has made mention that "its on" in regards to our efforts.
    I've recently been aquainted with the term "Surface Bargaining", referring to stonewalling and bad faith negotiations by the company. Also, is it true that we have no rights to mediation and arbitration during the initial contract negotiations?
    Thank you.

  2. #2
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    Default

    Quote Originally Posted by benlomand View Post
    Our newly formed L.U. is about to start negotiations which we have reason to believe will be nasty as management has made mention that "its on" in regards to our efforts.
    I've recently been aquainted with the term "Surface Bargaining", referring to stonewalling and bad faith negotiations by the company. Also, is it true that we have no rights to mediation and arbitration during the initial contract negotiations?
    Thank you.
    *PLEASE NOTE THAT THIS IS NOT LEGAL ADVICE*

    Surface bargaining is a term that is used by the National Labor Relations Board if it finds that an employer has violated the National Labor Relations Act by failing to bargain in good faith with a union. The term has specific meaning under the law.

    For example, let's say that the union and company meet 20 times in 3 months to try and bargain a contract. During one of the first sessions, the parties come to agreement on a variety of issues (sick leave, holidays, job classifications, etc.) On the 21st meeting, the employer suddenly changes its position on all of those issues and states that all of these previously agreed upon items are now "back on the table" because the union won't agree to a massive increase on health insurance premiums. In that situation, the employer may be guilty of "surface bargaining" - on its face it 'looks' like the employer is bargaining, but the reality is that it has no interest in negotiating in good faith with the union in regard to the terms of a contract.

    This type of tactic is much different than something known as "hard bargaining." The employer has the right to take a position in negotiations and stick to that position. For example, the union wants a $1.00 an hour pay increase. The employer isn't willing to give anything because of the current economy. The parties meet 21 times and the employer's position remains the same - it is not going to give $1.00 an hour wage increase, let alone ANY wage increase. In this example, the employer is not engaged in surface bargaining. Instead, it is hard bargaining. This would not be a violation under the NLRA.

    Supervisors or management stating that "its on" is, by itself, probably not enough to find a violation of the law for surface bargaining. Obviously, it is important for someone from the union to take very detailed notes during all negotiating sessions to have evidence of an employer's changing position if that kind of a charge is going to be made to the Labor Board.

    In regard to mediation and arbitration, it depends. Are you a public sector employee? (Police, fire dept., etc.) Public sector employees in some states are entitled to mediation and arbitration on a first contract. If you are not a public sector employee, then only in very rare situations are the parties obligated to engage in mediation or arbitration. It is possible for the parties to negotiate for years without reaching an agreement.

    I hope that helps.

    Mr. Pink

  3. #3
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    Default

    Thanks Mr. Pink.

    My first thoughts go like this, I don't think any company wants to have to deal with a union, so what's to keep any or all company's fom stonewalling to the point that the support for the union collaspes by dissent?

    I ask my brothers, other than strike, what leverage do we have?

    I will be back to comment on our journey.

    BL

  4. #4
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    Default Contact the National Labor College

    The NLC published an incredible treatise on how to deal with an employer that is engaging in "surface bargaining". I picked up a copy when I graduated last year.
    Call them and ask them if they have any copies. If not I'm sure they have something in digital form.
    It really was something to behold. I'd love to talk to the guy that wrote it. Better yet I'd love to be able to find it.

    Eric

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    Default Thanks

    Thanks Eric, I will do that.

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