Facilitating Conflict Resolution
in Union-Management Relations
A Guidefor Neutrals
Richard Chaykowski, Joel Cutcher-Gershenfeld,
Thomas A. Kochan, and Christina SicklesMerchant
for the AD R in the Organized Workforce task force of the
Society of Professionals in Dispute Resolution
lCQ
~ '" '"
CORNELLIPERC
INS TIT UTE ON
CONFLICT
RESOLUTION
A partnership between
THESCHOOLOFINDUSTRIAL THE FOUNDATIONFOR
AND LABORRELATIONSAT & PREVENTIONAND EARLYCORNELLUNIVERSITY. RESOLUTIONOFCONFLICT
ADR in the Organized Workforce
task force of the
Society of Professionals in Dispute Resolution
George Adams
G. WAd~ms ADR Services,Ltd.
Richard Chaykowski
Queen's University, School if Industrial Relations
Joel Cutcher-Gershenfeld
MassachusettsInstitute if'Technologyand Babson College
Dan DeStephen
. Wright State University
Thomas A. Kochan
MassachusettsInstitute if'Technology,Sloan SchoolifManagement
Stan Lanyon
Arbitrator
Christina Sickles Merchant
Independent Dispute Resolution Consultant
Nancy E. Peace
Mediator IArbitrator
~ 2000 by Cornell University
No portion of this work may be reproduced in any
form without written permission from the
Cornell/PERC Institute on Conflict Resolution,
621 Catherwood Library Tower, Cornell University,
Ithaca, NY 14853-3901.
Contents
Preface 5
Introduction 6
1. Starting Premises:The Role of Collective
Bargaining in Society 6
2. Contemporary Practices 8
3. Workplace Operations 11
4. Collective Bargaining 18
5. Strategic Level 24
6. Societal Level 27
Conclusion: Looking Ahead 31
Guiding Principles for Dispute Resolution
Professionals Working in Unionized Operations 32
References 34
About the Authors 35
3

Preface
ADR in the Workplace is an initiative of the Committee on Law and Public Policy of the.
Society of Professionals in Dispute Resolution (SPIDR).The purpose of the initiative is to describe
the processes, practices, and outcomes of existing and emerging dispute resolution activities in the
workplace. Begun in 1996 under the leadership of SPJDR presidents Christina Sickles Merchant
and S. Glenn Sigurdson, the work of the initiative has been organized into three tracks:Track I,ADR
in the Employment Sector;Track II,ADR in the Organized Workforce; and Track III, International
Structures and the Role of Workplace ADR Globally. The goal of the initiative, overall and within
each track, is to foster better-informed consumers and more skilled providers of workplace ADR
serVIces.
Track I, co-chaired by Ann-A. Gosline of Gosline, Reitman, & Ainsworth Dispute Resolution
and Lamont Stallworth of the Institute of Industrial Relations, Loyola University, focused initially
on the work of agencies charged with enforcing workplace rights. Working through a series of drafts
that were circulated and commented on by a broad cross-section of the dispute resolution commu-
nity, including representatives of the United States Equal Employment Opportunity Commission
and other US. and Canadian enforcement agencies, the Track I committee completed its final report
in late 1997. Entitled Guidelinesfor Voluntary Mediation ProgramsInstituted by Agencies Charged with
EnforcingWorkplaceRights, the report was formally adopted by the SPIDR Board of Directors on
January 24, 1998. At this same meeting, the board also approved a motion supporting the National
Academy of Arbitrators' opposition to agreements imposing arbitration of statutory rights as a cOl1dition
of employment. Track I is presently at work on guidelines and principles of good practice for internal
employer dispute resolution systems for statutory employment disputes.That report will be completed
sometime in the year 2000.
The first draft of Track II's Facilitating Conflict Resolution in Union-Management Relations:A
Guide for Neutrals was produced by a small working group consistinK of Thomas A. Kochan, MIT
Sloan School of Management; Christina Sickles Merchant, dispute resolution consultant;Joel Cutcher-
Gershenfeld, MIT and Babson College; and Richard Chaykowski, Queen's University School of
Industrial Relations. As with the Track I report, the Track II report has been broadly circulated and
revised, based on feedback from interested parties, including sessions at the SPIDR annual meeting
in Portland, Oregon, in October 1998. .
The work ofTracks II and III has been conducted in collaboration with other institutions. The
Hewlett Foundation, the Massachusetts Institute ofTechnology, and Cornell University's Institute on
Conflict Resolution provided funding for the work of Track II. The Program on Negotiation at
Harvard Law School provided financial support for Track Ill's study of the role of North American
dispute resolvers in conflict resolution and dispute systems design throughout the world. As of this
writing, Track Ill's study is not yet complete.
All those who have.-worked on this project are-grateful to Cornell University,and Queen's
University for supporting the publication of this report. Because the theory and practice of interest'-
based processes in union-management negotiations and problem solving ;re evolving at a rapid rate,
the authors consider this a preliminary report. It is our hope that publishing the report will make it
more widely available and useful to those who are working in this challenging area of practice. It is
also our hope that the report will spark further debate and continued refinement of the ideas and
principles we have attempted to describe.
To encourage a continuing dialogue, SPIDR has ,established a threaded conversation on the
internet. Those wishing to participate in this conversation or simply to read what others are saying
can tune in at http/www.spidr.org.
Homer C. La Rue, President, SPIDR
Nancy E. Peace, Initiative Co-Chair
Gerald W. Cormick, Initiative Co-Chair
5
Introduction
Over fifty years ago George Taylor, one of party neutrals in contemporary labor-manage-
the most highly respected labor-management ment relations.
neutrals of his time, called for third parties to Specifically,we have three target audiences
take on what he termed "a mantle of responsi- in mind:
bility for labor-management relations." Today, .labor relations neutrals, steeped in the in-
wide ranges of practitioners are assuming this stitutional nuances of industrial relations (pri-
responsibility. They are playing a variety of in- marily arbitrators and mediators), who are being
ternal and external roles, as labor arbitrators, challenged to help parties adapt to new circum-
mediators, consultants, facilitators, dispute system stance.s;designers, leaders serving on joint committees, third-party neutrals experienced in set-
and countless others. These individuals strive to tings outside of labor relations who are or will
rise above the partisan pressures that are found in be wo.rking with parties in unionized settings;any union-management relationship by helping internal facilitatorsand change agents (£rom
to resolve disputes, foster problem solving, and labor or management) who are helping to solve
build new institutional relations. In doing so, they problems and resolve disputes in the workplace.
are helping the institution of collective bargain- Some points in this report may be com-
ing adapt in ways necessary for it to continue to pletely obvious to one part of the target audi-
be a key societal element into the next century. ence but an essential caution to another. Some
As dispute resolution professionals,we need of the recommendations will be controversial
to understand the range of practices now found since they reflect an activist view of third-party
in different relationships, the types of roles roles. Importantly, this is not an overall guide to
neutrals might play,and the principles that should best practice for labor-management relations;
guide neutrals as they carry out these roles. The instead, it is a guide to the role of dispute reso-
purpose of this report, therefore, is to outline lution professionals in the labor-management
principles for SPIDR members, other neutrals, context. We hope that it stimulates further con-
and the parties who utilize the services of third- structive dialogue in the profession.
1
Starting Premises:
The Role of Collective Bargaining in Society
Work is fundamental to the development course of this century, collective bargaining has
of our individual and social identities, our psy- served as an important institution for resolving
chological well-being, and our economic. wel- conflicts and promoting problem solving in
fare. Since work serves multiple objectives and employment relationships. By giving voice to
interests in so~iety, conflict is an expected part worker and employer concerns and improving
of workplace relationships and experiences. How workplace democracy, collective bargaining also
we manage competing workplace interests and serves an important democratic function in our
change, and the resulting conflict, is therefore communities and, increasingly, in transnational
essential to the development of a progressive, civil institutions and forums.
society and a strong economy. Over most of the Traditionally, collective bargaining ad-
6
dressed worker and employer concerns in peri- ment (e.g., wages, hours) and the effects of mana-
odic negotiatio'ns in which the parties were gerial decisions on conditions of employment,
motivated to reach an agreement by the threat as well as the option to file a grievance if indi-
of a strike or lockout. Agreements were then vidual or collective rights covered in the con-
implemented and administered with the help of tract were violated by a managerial action.
a grievance procedure culminating in arbitration But, in the context of the emerging new
before mutually acceptable neutrals. Labor-man- economy, this traditional model is no longer ad-
agement committees and other cooperative fo- equate for meeting the needs of today's
rums were encouraged and arose in various workforce or maintaining a competitive enter-
industries and companies in response to specific prise and economy at high standards of living.
problems or wartime crises. Indeed, as the traditional model declines through-
But the laws passed decades ago to regu- out the U.S. economy and in several key Cana-
late collective bargaining viewed labor-manage- dian sectors, it is at risk of losing its economic
ment relations as essentially an arm's-length and political power in our societies. Increasingly,
adversarial relationship. Management retained the parties choose alternative forms of dispute reso-
right to make strategic decisions about the di- lution, including mediation, adjudication, and a
rection of the enterprise and to manage the busi- variety of hybrid processes (mediation/ arbitra-
ness. In return, the union gained the right to tion or early neutral evaluation, fact-finding,
negotiate the terms and conditions of employ- ombudsmen). In addition, the perceived value
Box 1
ADR in the u.s. Federal Workplace
U.S. federal labor relations by Vice President Gore, identified disputes;
from 1962 to 1993 tended to be the area of human resource .high levelsof experimenta-
highly adversarial and litigious. management, and labor relations tion with ADRprocesses for
This state of labor relations was in particular, as needing a resolving outstanding disputes
illustrated most dramatically by variety of interventions to play between parties, from simple
the PATCOstrike (1981), in which its part in "creating a govern- unfair labor practices to com-
over 10,000 air traffic controllers ment that works better and costs plex, mature litigation;
were fired by President Reagan less." As one of the products of . joint leadershipand support
for engaging in a work stoppage the National Performance Review, by top labor and management in
over failed contract negotiations. President Clinton signed Execu- facilitating the change toward
The U.S. federal service's labor tive Order 12871, entitled more constructive dispute
relations program has multiple "Labor-Management Partner- resolution dealings at the local
third-party policies and struc- ships," in October 1993.. The level;
tures for resolving different order mandated aLLexecutive .multipleefforts by the
disputes. These include the agency leadership to achieve a parties to redesign dispute
Federal Labor Relations Authority "true" partnership with their resolution systems-process,
(FLRA)for representation counterpart labor organizations capability, and structure-within
questions, unfair labor practices, as a precondition for "reinvent- whole agencies in order to
negotiability disputes, and ing" the federal workplace. achieve greater institutionaliza-
review of arbitration awards; the Moreover, the parties were tion of ADR;and
Federal Service Impasses Panel instructed to use "alternative .extensive measurement
(FSIP) for settlement of negotia- dispute resolution processes such initiatives to track the results of
tion impasses; the Merit Systems as consensual decision making ADRwith respect to direct and
Protection Board (MSPB)for and Interest-Based Negotiations" indirect costs, impact on rela-
appeal of adverse actions; the as the preferred methods for tionships, durability of resolu-
Equal Employment Opportunity arriving at redesigned and tions achieved, and satisfaction
Commission (EEOC)for discrimi- restructured workplaces. These with outcomes.
nation complaints; and the Office efforts are now producing: The challenge for third-party
of Special Counsel (OSC)for . extensive training of neutrals is to keep up with this
investigation and resolution of supervisors and employees in the rapid pace of change and to add
whistleblower complaints. nature and use of alternative value to it as it evolves.
Against this backdrop, the dispute resolution (ADR)pro-
National Performance Review, led cesses to prevent and resolve Source:ChristinaS. Merchant
7
of collective bargaining as a public good has dispute resolution systems. Regardless of the
continued to erode, and many employers con- sector or context, the public is increasingly
tinue to view collective bargaining with consid- concerned over the costs of conflict and the
erable hostility. quality of relationships.
Yet, collective bargaining and union-man- In traditional collective bargaining, inter-
agement relations are as important today as ever ests are negotiated periodically and codified in a
to a healthy economy and a strong democracy. written agreement. Disputes are legitimate only
The need to achieve more competitive work- when posed as questions of individual or group
places together with an increasing standard of rights specified in the contract. Formal proce-
living merely increases the importance of inno- dures with well-defined steps and roles for par-
vative, cooperative labor-management relations ticipants are established to resolve these disputes.
and effective conflict resolution.'Collective bar- The resulting system is a culture of rights and
gaining, therefore, needs to be adapted and im- obligations that fosters stability and uniformity.
proved, not abandoned. In contrast, today many workers and employers
The challenges facing this institution vary want processes for dispute resolution and prob-
across sectors of the economy. In the private sec- lem solving that are flexible, informal, timely,
tor; there are deeply embedded collective bar- adaptable, affordable, and customized to their
gaining relationships and traditional approaches specific circumstances.
to conflict resolution. These are being challenged Many parties are responding to the dictates
by organizational restructuring, the entrance of of the new economy and redesigning their bar-
new firms in existing markets, and new work gaining relationships and conflict resolution pro-
systems. Beyond the structural changes, deep cesses. (See Box 1 for an example from the US.
cultural changes are taking place, driven by shift- federal sector.) The scope, character, and role of
ing demographics and changing assumptions these processes are undergoing profound change.
about work, employment, and change itself. In We believe this change must not only continue
this context, conflict resolution and problem- but accelerate.
solving processes are highly valued'by some as a Effective neutrals (to paraphrase George
necessary part of the solution andfeared by others Taylor) need to take on the mantle of encour-
as a threat to established institutions. aging, supporting, and facilitating constructive
In the public sector, the pressures for change and innovation in collective bargaining.
privatization, accountability, and reorganization If we are successful, we will help the parties re-
create similar dynamics, with additional political ali.zea new vision for collective bargaining suited
overtones. Here, as well as in the service sector, to the needs of today's workforce and economy.
the- changing role of service delivery processes If we fail, the next generation may lose the eco-
adds a further dynamic to dispute resolution nomic and social benefits of this key institution.
systems. Expectations are high, and those to Our task, therefore, is to identify the new
whom the service is provided are more assertive conflict resolution principles that are emerging,
about expressing them. This pressure, added to encourage their use by dispute resolution pro-
the high visibility of government and some other fessionals, and give them broad visibility in the
service providers, puts an additional burden on labor relations community.
2
Contemporary Practices
This section describes the wide array of agement relationships. Instead, we present them
structures, forums, and processes that have been as innovations that have demonstrated their value
introduced to improve labor-management rela- for some parties and therefore are commonly
tionships and performance (seeTable 1).We are being experimented with in different settings.
not advocating these practices for all union-man- Sometimes they are successful, sometimes not.
8
Table 1
Innovations in Dispute Resolution
Levels of activity Selected innovations Illustrative roles
Workplace operations Employee involvement groups, workplace Group/team facilitator
teams, other joint activities
New work system design and operations Project facilitators, consultants,
trainers
Workplace dispute resolution systems Arbitrators
Grievance mediation Mediators,design consultants
Collectivl;! bargaining Mediation of collective bargaining Mediators, facilitators,consult-
disputes; labor-management committees/ ants, trainers
councils; interest~based negotiations
Strategic level Union-management partnerships Consultants, mediators, trainers,
facilitators
Employee ownership Design consultants
Community/sectoral/ Sectoral/community labor-management Convenors/facilitators, staff
societal level committees/cou~cils; multi-party experts, members, witnesses
commissions/forums; private discussion
forums and professional associations;
policy hearings and legislative-processes
Our task is not to endorse any of them but through facilitation and fact-finding, to advisory
to summarize the conditions that, according to and imposed approaches.
our research, will give these practices the best The key distinction suggested by this spec-
chance of succeeding. Our special focus lies in trum concerns the degree of control retained
identifYing principles for neutrals to consider if by disputants over their own dispute. A long-
they are asked to participate in these activities. standing proposition in dispute resolution theory
In today's workplace, different people pre- is that disputes are best resolved closest to the
fer different ways to resolve problems and dis- source. In fact, dramatic changes now taking place
putes. In recent years dispute resolution theory in systems actually do plac~ responsibility and
has reflected this development by emphasizing authority in the hands of disputants. The parties
the importance of having a range of choices that are seeking a broader range of options in match-
can be tailored to the specific situation. The dis- ing disputes to their needs and preferences. These
pute resolution spectrum shown in Figure 1 choices matter in that different processes will
presents a sample of approaches and methods generate different substantive and relationship
ranging from prevention and negotiation, outcomes-all of which involve new or chang-
F
T-igure 1he Dispute Resolution Spectrum.1 preve~tive .~
. Dispute .
Source: Adapted from Costantin{) and Merchant, 1996.
9
Table2
Tradi~ionanl dEmerginTghird-ParRtyolesin Union-ManagemReenltations
Role Functions
Arbitrator Hearsand evaluates evidence in a dispute and issues a binding decision or award.
Mediator Assists parties' negotiations, both substantively and procedurally,so that they
may reach a settlement that both voluntarily accept.
Facilitator Managesgroup processes in waysthat help the parties interact effectively and
achieve high-quality outcomes.
Consultant Experthired by parties to help design and implement innovations and changes.
Trainer Expertwho teaches skills and encourages learning that the parties can then apply
on their own.
System designer Expertwho helps parties build and implement a comprehensive conflict resolution
system with multiple options for resolving disputes.
ing third-party roles. be recognized, however, that these roles are of-
The roles of arbitrators and mediators are ten combined in creative and new ways, and
well established in labor-management relations, thus few professionals adhere sttictly to the
and these roles continue to be central to the pro- generic definitions listed here. Indeed, as Dunlop
cesses of industrial jurisprudence and dispute - and Zack (1997) note, some neutrals have always
resolution. In recent years, however, additional seen their role as that of an "impartial chairman"
roles have emerged involving internal and ex- in the George Taylor mold and therefore have
ternal forms of facilitation, implementation, mixed arbitration, mediation, and other processes
training, and informal mediation. Our focus is as the situation required.What these experts stress
primarily on these newer roles, though we will is that neutrals need to understand how their
also address some of the ways that arbitrators roles change as they move across or combine
and mediators are being asked to step outside different processes (see Box 2).They must avoid
their traditional roles with respect to labor-man- confusing the parties or creating additional con-
agement relations. Some of the traditional and flicts by inappropriately "transporting assump-
emerging roles are defined in Table 2. It should tions" from one role into another.
In the sections that follow
we outline the changing nature,
scope, and domains of contem-
Box 2 porary labor-management rela-
tions and some of the new roles
Mixing Multiple Roles/Functions as a Neutral
third parties are being called upon
Managing the changes in our likely that the parties will start to playas labor and management
roles as we move across or negotiating with the neutral as adapt within and across these do-
combine different dispute opposed to each other. If this mains.We begin at the workplace
resolution processes is a major happens, it compromises the and move upward through the ne-
professional challenge we face neutral's ability to assist the gotiations process to strategic-level
as neutrals today. This becomes parties in negotiating with each interactions.Then we look beyond
particularly sensitive and subtle other. The parties must therefore individual bargaining relationships
where there is a commingling of be careful to assess what they to community, sectoral, and
roles such as mediation and need from a neutral in a given national-level interactions needed
arbitration that involves a setting, and neutrals should be to support workplace changes and
change in the neutral's respon- careful to understand and innovations.
sibility for outcomes. communicate their role and the In each section, we first
As a neutral moves closer to expectations and responsibilities place the developments and
ownership Ora stake in th_e of each party as they move processes in their historical con-
ownership of the outcome (as is across these boundaries. text, then outline principles or
the case in moving from guides for action. A summary of
mediation to arbitration) or is Source: Correspondenceto the Task all guiding principles is included
perceived to be moving in that Forcefrom GlennSigurdson, SPIDR
direction, it becomes more at the end of this report.past president
10
3
Workplace Operations
Facilitating Employee Involvement tween members and elected officers and slowly
and Workplace Innovat:ions undermining the authority of the union. This
view was understandable since many non-union
Employee involvement (EI) or quality of companies had been innovators in the use of
working life (QWL) programs were among the employee involvement, particularly in greenfield
earliest forms of direct employee participation (new) operations that companies were deter-
to gain widespread attention in the late 1970s mined to open and maintain on a non-union
and early 1980s. The 1973 national agreements basis. This legacy has haunted efforts to intro-
between the United Auto Workers (UAW) and duce many workplace innovations in labor-man-
each of the big three U.S. automobile compa- agement relations.
nies contained language encouraging limited use In addition to employee involvement prob-
of "off-line" problem-solving groups in plants lem-solvinggroups, other joint workplace in-
on a voluntary basis as long as they did not in novations have focused on issues of health and
any way change the language or rights covered safety, training, and apprenticeships. Safety and
in the collective bargaining agreement. A national health committees both have a long history and
committee was to be established at each com- are the most common form of joint labor-man-
pany to oversee and monitor the evolution of agement committee found in industry today.
these QWL or EI groups. Later, in the 1980s and More recently, joint activities have been estab-
1990s, well-known examples of various em- lished around issues of quality, employment se-
ployee involvement and joint union-management curity, employee benefits, and other matters of
initiatives were introduced, either informally or mutual interest. As well, various forms of" on-
through collective bargaining, across a variety of line" employee involvement have emerged in the
industries such as textiles, mining, autos, steel, form of production teams, cross-functional teams,
and telecommunications (including Xerox, service delivery teams, and other jointly governed
AT&T, and Bell Canada). In unionized settings, group activities.These joint initiatives evolve and
some programs have involved employees and not change over time, with third-party roles chang-
the union, while others have been joint union- ing as well.
management committees (e.g., labor-manage- The primary third-party role associated
ment participation teams in the U.S. steel with off-line participation activities is that of the
industry; process reengineering teams at Sask- group and/or project facilitator.
Tel in telecommunications).
Early on, failure rates were high as the par- 1. The facilitator must be acceptable to both union
ties recognized that these efforts could not be and management leaders and to other key stakeholders.
completely separated from collective bargaining It is union and management leaders who
issues or institutional arrangements. Programs that select and sanction individuals in these roles. Fa-
succeeded in addressing this issue when it arose, cilitators may be internal to the union or man-
such as at Xerox, expanded their scope and ex- agement organization or they may be selected as
perienced greater success and longevity. Those external facilitators.It is critical that facilitators de-
that didn't atrophied or were abandoned because velop and maintain the trust, respect, and support
of conflicts with existing collective bargaining, of both labor and management representatives
union, or employer structures or oppositional and their constituents/superiors. Sometimes a
forces. facilitator must be ready to step aside if the neces-
One problem with these early efforts was sary trust and confidence cannot be achieved or
that they were often viewed by union leaders as are lost with one or more of the parties.
anti-union. They were seen as union avoidance In one case,the initial consultant brought
tactics or as instruments for driving a wedge be- in by the company was unable to develop the
11
necessary rapport with the union leaders while that constructive group efforts will be undercut
his younger assistant was able to do so.The re- by the lack of checks and balances at higher lev-
sult: the compa~y and union hired the younger els, or that necessary political support and/ or fi-
consultant who subsequently helped them de-'- nancial resources will be cut off the first time
velop and sustain a successful partnership for the program experiences a crisis of one form or
nearly twenty years. In turn, the more senior another.
consultant went on to facilitate many other joint More specifically, ~nions can take, or be
union-management change efforts. Thus, as in viewed by management as taking, one of three
traditional mediation, a facilitator in these cases roles in employee involvement: (1) active oppo-
must recognize that personal relationships mat- sition, (2) neutrality-not directly involved but
ter a great deal; matches are situation-specific allowing it to happen, or (3) joint partnership.
and sometimes require one to step aside if th~ We believe it is not only inappropriate but
match is not developing for one reason or an- unworkable for neutrals to attempt to facilitate
other. employee involvement efforts in unionized set-
tings without the' active involvement of the
2. Thefacilitatormust ensurethat thejoint ac- union. Where the union is opposed we urge pro-
tivities have appropriate,jormalsanctionvia the col- fessionals'to work with labor and employer rep-
lective bargaining agreement or other joint policy resentatives to overcome the opposition. Failure
documents. to do so implies that the employee participation
Most successful union-management efforts process will become or is already embroiled in a
have language .in their collective agreements or larger labor-management conflict that must be
in letters/memoranda of agreement that provide resolved before it is feasible for a neutral third
an initial degree of sanction and support for party to facilitate the employee involvement ef-
group participation activities. Often, the experi- fort. If the conflict is not resolved, the third party
ence with employee involvement and related should not serve as a facilitator. Where the union
joint activities will lead to periodic adjustments takes a neutral but uninvolved role, the process is
and expansion of the sanctioning language. A also at risk. While this may not be grounds for
facilitator, then, not only works within a con- withdrawing or declining to serve, it is a warn-
tractual mandate but also identifies areas where ing sign that the process is unstable and efforts
that mandate needs to be adjusted. This, in turn, need to be made to include the union leader-
requires sensitivity and understanding of how ship more ,fully in the process. Joint oversight is
the bargaining process opera,tes within both la- essential to ensure that the process has joint own-
bor and management organizations. ership and commitments to see it through piv-
One of the clearest implications of the early otal events and challenges.
EI experiences is that these processes cannot, over
time, stay limited to issues not covered by col- 4. Facilitatorsneed to ensurethat mechanisms
lective agreements. Workers and line managers Jor dispute resolutionand QtherJorms oj due process
naturally want to discuss the issues that are most arebuilt into any participativeinitiative.
important to them and to their operations. Oth- Inevitably, worker participation efforts en-
erwise, problems cannot be solved and root cause counter barriers or internal conflicts that can-
analyses are stymied. Therefore, the parties need not be resolved at the level of daily operations.
to work out ways to address these issues with Many can be resolved within the group. In some
respect to. the procedures for modifYing collec- cases, a form of appeal is required-up a man-
tive agreements. Box 3 contains excerpts from agement or union hierarchy, or to various joint
contract language sanctioning one of the bet- steering committees or other forums. A facilita-
ter-known examples of how this can be done: tor who works with groups in the absence of
the joint-study procedures governing the poten- such a procedure must create the process ad hoc
tial outsourcing of work in the Xerox-ACTWU when such difficulties are encountered, which is
(now Xerox-UNITE) bargaining unit. substantially more difficult than doing so in ad-
vance.
3. Facilitators need to ensure activejoint "own-
ership" if the process.
A facilitator should not be working with Facilitating the Design and
participation groups in a setting where either the Operations of New Work Systems
union or management leadership is in an inac-
tive or secondary role.Where only one of these Team-based work systems and other work-
parties is driving the process, there is a great risk place redesign initiatives are increasingly com-
12
Box 3
Sanctioning Language in a Collective Bargaining Agreement
A CaseExampleon Subcontracting:AgreementbetweenXeroxCorporationand Local14a, The
XerographicDivision, ACTWU1994-2001.Excerptsfrom Article II, Section B:Subcontracting
Whenthe Companydeterminesthrough cost of obtaining suchwork from external
[cost] analysesthat work of satisfactory sources.
quality cannot be producedcost-competie Whenthe Companyand the Union agree
tively by the bargaining unit, the Company that the Team'srecommendationswill make
shall: the production studied cost-competitive
a. Notify the Union accordinglyand-share with external sources,the Companyand the
the results of suchanalysiswith the Union. Union shall havethe authority to negotiate,
b. Establish, in conjunction with the within a reasonable period of time, an
Union, appropriate EmployeeInvolvement agreementthat effectuates such recommen-
StudyTeams. dations.
Within a reasonableperiod of time, the TheCompanymaysubcontractwork when:
appropriate EmployeeInvolvement Study a. An EmployeeInvolvement StudyTeam
Teamshall: advisesthe Companyand the Union that it is
a.Review the relevant cost-comparison unable to formulate proposalswhich will
analysis. renderthe production studied cost-competi-
b. Investigate alternative production tive with external sources,or
methods,processes,equipment, materials, b. TheCompanyandthe Union are unable
and any other factors which affect internal to negotiate an agreementthat effectuates
production costs.. the recommendationsof a Team,or
c. Advisethe Companyand the Union that c. An Employee-InvolvemenSt tudyTeam's
the Teamis unableto formulate proposals adviceor recommendationshavenot been
which will renderthe product studied cost- submitted, or the Company-Unionnegotia-
competitive with external sources,or tions havenot beenconcluded,within a
d. Recommendto the Companyand the reasonableperiod of time.
Unionthosemethodsandprocessesc,hanges .
in the terms and conditions of employment, Source1:994-2001 Ca/lediveBargainingAgreement
and capital investments, which could render betweenXeroxCorporationand Local14AAmalgam-
the production studied competitive with the atedClothingand TextileWorkersUnion
mon in workplaces today. They represent a di- tion offers important opportunities to consider
reci:contrast .to the traditional work systems with new, state-of-the-art approaches to organization
individual job descriptions, clearly defined re- design and employment relations. Because such
sponsibilities and boundaries, seniority rules gov- decisions involve sizable investments, some em-
erning promotion and transfer, and pay rates ployers tend to keep plans for new facilities con-
associated with individual jobs. The movement fidential. Some employers have also used these
to new work systems touches the heart of opportunities to create and maintain the new sites
collective agreements and must be sanctioned in as non-union facilities. This, however, furthers
the agreement. All the principles listed above worker and union distrust of new work systems
therefore apply to these systems, along with an and underrriines constructive labor-management
additional set of considerations. We distinguish relations. External consultants often play an im-
between introduction of team systems into portant role in exploring and benchmarking the
greenfield (new) and brownfield (existing) sites. range. of options.There(ore, neutral dispute reso-
lution professionals should not participate in the
5. It is inappropriatefor third-party neutralsto designing of new facilities so as to avoid union-
assistemployersin setting up greenfieldsites intended ization.
in part or primarily to avoid unionization. Doing so Yet experience shows that joint explora-
destroysthefacilitator's neutrality and acceptabilityin tiop of options for organizing work and em-
labor-managementrelations. ployment relations systems can lead to significant
The design of a new or greenfield opera- innovation and broad buy-in to new approaches.
13
A key task of neutrals in this activity is to ensure the norms and equities that the incumbent
that all the critical stakeholders are informed and workforce has built up over the years while al-
participate in the design effort. lowing new arrangements to emerge and flour-
ish. These norms and equities need to be
6. Facilitators need to assist the parties in reach- addressed as part of the change process.
ing agreementsgoverning the processfor deciding
whetheror not workersin a newfacility will be repre- 7. TOeffectivelyfacilitate the implementationof
sented by the.union. new work systems in an existing operation,afacilita-
The process for deciding whether or not a tor must legitimize and help addresstheformal and
union will represent workers in a new facility is informal rights and expectationsamong stakeholders
a necessary and critical component of the plan who benefitand who areat risk asa resultofproposed
for the new facility. The facilitator should ensure changes.
that the parties address this issue as part of the A third-party professional has a duty to
plan and reach agreement on how representa- ensure dialogue regarding stakeholder interests
tional issues are to be decided. that might not be represented "at the table." Third
In some cases recognition is done volun- parties also have a duty to integrate new activi-
tarily as part of the joint study process. In others ties with existing institutional arrangements, in-
union and employer representatives agree on rules cluding the industrial relations culture and
of conduct for allowing workers in the new fa- climate, the nature of the union-management
cility to decide whether or not to be represented relationship itself, and the nature of the collec-
if an organizing effort is begun. While the ap- tive bargaining/agreement.
proach may vary, it is critical for agreement on
this issue to be reached as part of the design pro- Workplace Dispute Resolution
cess. One of the best-known examples of this
type of joint study process, the "Committee of There are well-established principles and
99" that designed the partnership between the guidelines for individuals serving in dispute reso~
Saturn Corporation and the United Auto Work- lution roles. There are also lively and important
ers (UAW), is described in Box 4. debates under way about how third parties are
Introducing team-based or other alterna- managing boundaries with respect to statutory
tive work systems into an existing facility is a employment rights. Our focus here is not on
more incremental process, requiring attention to these matters; they are being addressed in other
forums. Instead, we seek to provide guidance to
third parties who are involved in efforts to change
Box 4 traditional dispute resolution processes, such as
arbitration, or who work at the boundary be-
Saturn's "Committee of99" tween interest- and rights-based dispute resolu-
tion procedures.These include, but are not limited
In earLy1982, GeneraLMotorsconcludedthat it to, experiments with grievance mediation, at-
couLdnot manufacturea small car competitiveLyin tempts to shift "in the moment" between con-
the U.S.underthe existing GMjUAWcontract and so
in 1983approachedthe UAWInternationaLwith t~e tractual grievance procedures and alternative
idea of expLoringa newapproach.This Ledto the dispute resolution procedures, and acting in the
formation of a joint union-managementcommittee capacity of a dispute resolution systems designer.
(the Committeeof 99 becauseeventually 99 hourLy For example, arbitrators have long debated
workers,engineers,managers,and union representa- the degree to which their role should be nar-
tives participated) chargedwith evaLuatingthe key rowly defined around the judicial interpretation
successfactors of worLd-classmanufacturing.This and application of the collective bargaining
joint study team started with a clean-sheetapproach agreement or broadly defined around problem
as it expLoredand evaLuatedpracticesthroughout solving with parties in order to better apply con-
the worLd.TheCommitteeproposedadoption of a set tractual language (Cox and Dunlop, 1950). In
of neworganization principLesfor Saturnthat recent years the judicial view has dominated the
embodypartnershiparrangementsfrom the shop profession. But the result is that arbitration serves
floor to the strategic LeveLsof the organization. One a limited role, enforcing the status quo in labor-
of these principLeswasthat the UAWwouLdbe management relations. While this role is impor-
recognizedvoLuntariLyat Saturn. tant for ensuring equity and uniformity of
treatment under a bargaining agreement, it does
Source: Adaptedfrom Rubinstein, Bennett, and Kochan 1993. little to help identify the root causes of prob-
lems in the workplace or to help adapt collective
14
bargaining to its changing circumstances. In
the same fashion, mediators of collective Box 5
bargaining disputes were challenged in
Balancing Multiple Goals in
recent times to perform mediation tasks
related to grievances, which they viewed Grievance Mediation
initially as outside the scope of their work The mediator (or in my case the director of
and expertise. the mediation program) must decide whetherthe
We believe there is a need for dispute primary goal of grievancemediation is to settle
resolution professionals to emphasize a more grievances or whether it is to teach the parties
clinical and flexible approach to dispute to resolve disputes on their own as an important
resolution if they are to fully serve the element of a collaborative tabor-management
diverse needs of the parties. Absent experi- relationship.
mentation and innovation along these lines, As you might expect, I have sought a middle
it is likely that arbitration and mediation ground. Initially, I conclude that the primary task
caseloads will continue to shrink and an of the grievance mediator is to settle grievances.
important resource will be less available to Improving the parties' own grievance resolution
the parties. . skills is important, but it is rarely the central
reason why parties engage in grievance mediation.
8. Dispute resolution prifessionals have a Rather,the parties'centralgoaLis typically to .
larger responsibility to work with the parties in resolve grievances more quickly, inexpensively, and
redesigning theirproceduresand dispute resolution satisfactorily than is typically done in arbitration.
systems to better accommodate the types if issues Hence, I instruct my mediators to use caucuses
and conflictsthat arisein today'sworkplaces. (and other settlement-oriented tactics) as
Mediation of grievances has a long extensively as they think necessary to achieve
settlement.
and rich history in labor-management
relations.As early as the 1950s International On the other hand, I also instruct my media-
Harvester and the UAW used mediation to tors to model the best elements of coLLaborative
decision making in working with the parties. The
rehabilitate what they referred to as a
primary focus is on interests, the search is for a
"distressed" grievance system with large solution that satisfies the central interests of aLL,
backlogs (McKersie and Skrapshire, 1962). and solutions are sought in the ideas and
David Cole, another highly respected neutral suggestions of the parties. My hope is that the
of an earlier generation, discussed the role parties, by participating in what is essentiaLLya
of grievance mediation in his classic treatise collaborative process, guided by an expert in
on industrial justice (Cole, 1963). In the collaborative decision making, will learn the
1970s, grievance mediation was introduced skills necessary for an effective collaborative
into the coal mining industry to address the process, and will need to caLLon the mediator
problems of wildcat strikes (Ury, Brett, and less and less.
Goldberg, 1988) .There is also evidence that
grievance mediation was somewhat suc- Source:StephenB. GoLdbergc,orrespondencteo the Task
cessful in the Ontario construction industry Force
in the early 1980s (Whitehead, Aim, and.
Whitehead, 1988). Out of these experi-
ments has evolved grievance mediation as it is Arbitrators and mediators should ensure that
applied today in many settings. mediation processes are appropriately defined. In
Guidelines for labor mediators and arbitra~ cases where grievance mediation is built into the
tors are well established and should be consulted parties' grievance procedure, it important to have
by third-party neutrals taking on these roles. (See, clear rules governing the process and the role of
for example, the guidelines published by the Na- neutrals.The parties also need to be clear on their
tional Academy of Arbitrators and the Association goals for including mediation as a step in the
of Labor Relations Agencies.) While the specific process. Box 5 illustrates how Stephen Goldberg,
features of the process vary to fit different circum- the director of a highly respected grievance
stances, one generic principle should apply: mediation program, seeks a balance between the
goals of helping parties to reach a settlement and
9. Mediation of grievances should be done either building a collaborative relationship.Whether the
(1) aspart of a negotiated agreement that outlines how parties or the neutral introduces the possibility
mediation fits into the existing grievance and arbitra- of using mediation, the parties must both agree
tion process or (2) by joint agreement if the parties. to engage in mediation for it to be successful.
15
Box 6 illustrates how one neutral explored the ever, it is critical to caution third parties here
option of mediating a grievance she was initially once more that resolving disputes on issues
chosen to arbitrate. If the mediation is not where statutory and collective bargaining-based
successful,the arbitrator, in particular, must attend rights and procedures intersect requires substan-
to the parties' wishes regarding the resumption tive and procedural expertise in the relevant
of the arbitration process and whether or not matters of law, as well as of rights and proce-
the arbitrator should withdraw from the case. dures flowing from the collective bargaining
contract and workplace practices.
10. Third parties must be aware if the bound-
aries between statutory rights, collective bargaining, 11. Third parties involved in workplacealter-
and dispute resolution procedures. Third parties who native dispute proceduresin unionized settings need
help resolve issues that cross this boundary need to to manage the boundary between the ADR and
have deep substantive knowledge of the relevant law, informaland formal contractualprocesses.
as well as expertise in collective bargaining procedures The grievance procedure was designed to
and workplace practices. resolve issues covered under the collective bar-
The matter of substantive knowledge of gaining agreement. Today many workplace is-
the laws involved in a dispute is an ongoing sub- sues and conflicts arise out of issues not covered
ject of debate in our field.SPIDR's Track I by the agreement (e.g., a dispute between a man-
report, Guidelinesfor VoluntaryMediationPrograms, ager and an employee over product or service
contains a fuller discussion of this issue. How- quality) and/or among co-workers whose em-
Box 6
The Choice to Mediate During Arbitration
I was servingas arbitrator I do not knowwh.atmy immediate and reasonably
on a grievanceinvolving the decisionwould havebeen hadI positive.response,the arbitrator
question of whether super- heardthe entire caseand should ceaseto pursuethe idea
visors wereperforming renderedan award.It seemsto and continue in his or her
bargaining unit work. I knew me, however,that had I ruled in arbitration role. If the parties
the parties had tried to settle favor of the Union, the Com- indicate that they might be
the grievancethemselves.After pany'sefforts to modernize interested in mediation, the
hearing someof the evidence,I might havebeensufficiently arbitrator should first negotiate
askedif they wanted to give constrainedthat both the ground rules, including what
settlement another try or have Companyand the employees will occur if the mediation fails.
me attempt to mediate it. Over would havebeenadversely Will the parties seekto havea
a Lunchbrea'k,the parties tried impacted.Had I rendereda newarbitrator appointed, for
again to resolvethe matter decision in favor of the Com- example?
themselves,but were not pany,it seemsLikelythat the It should not be expected
successfuLT. heythen askedme Union would havecontinued to that all arbitrators are willing
to mediate. It wasagreedthat file grievances.In so dynamica or able to take on'the role of
if the mediation was unsuc- situation, there would havebeen mediator. Not all Laborarbi-
cessfuLand either party was enoughvariations that new trators are comfortablewith the
uncomfortablewith myre- grievanceopportunities would idea of mixing the two pro-
turning to the role of havepresentedthemselves. cessesand not all havemedi-
arbitrator, I would withdraw. In offering to mediate,the ation experience.Whereboth
TheCompanyhad recently arbitrator IT)ustexercisecon- the arbitrator and the parties
introduced computersinto its siderabLecaution. Someparties are comfortable, however,
manufacturingprocessesand maybe uncomfortablewith mediation mayoffer parties the
neither Union nor Management mediation in general;others may ability to fashion a remedy
wasable to define what be open to mediation, but not that is moreforward-Looking
constituted Union work in with respectto a particular case. and creative than that which
these changedcircumstances. Thereare grievancesfor which wouLdbe availabLethrough
Theoutcomeof the mediation the parties sfmply needa arbitration.
wasa set of protocols for decision. In most cases,if a
mutually deciding what was gentle inquiry regardingmedia- Source:NancyE. Peace,correspon-
Union work. tion doesnot receiveal'] dence to the TaskForce
16
ployment rights may be covered
by an agreement but are in Box 7
conflict over noncontractual
Dispute Resolution Design
matters (e.g., an interpersonal
conflict). Therefore, alternative Sometime ago, whileexploringthe details of a
forms of dispute resolution memorandum of agreement covering the use of interest-
(ADR) are being used to address based negotiations to resolve two significant contract
these issues in unionized settings clauses, I was surprised to learn that the parties insisted
side by side with existing griev- on the need to agree on what the dispute resolution
ance procedures. An example of process would be if the effort failed. In that particular
one such case is summarized in instance, the parties agreed to submit the issues to
Box 7. One of the challenges that binding arbitration if a reasonable effort over a specified
arises in these settings is manag- time period failed to produce a comprehensive consensus
ing the boundaries between these on both clauses. After years of only sometimes encour-
two processes. aging the parties to think through and decide in ad-
These boundaries can be vance the dispute resolution procedure to be used if
ambiguous and, if not managed voluntary methodsfailed, I have arrivedat the conclu-
effectively, can serve as an addi- sion that such anticipatory dispute systems design is
tional source of conflict and cruciaL. First, I havefound that the participants in the
mistrust at the workplace. But if often voluntary alternative process engage more whole-
managed well, they provide heartedly when they know what will happen if they don't
disputants with additional options agree. Second, the participants often leverage key
for effective conflict resolution. decision making "in the room" by openly calling to
everyone's attention that control of the outcome will be
ceded to an outsider if they don't work harder to find a
12. Tofacilitate iffective dispute
systems designs utilizing solution that all stakeholders can live with and support.ADR
A third benefit ofworking out the "what ifs" for a
processes in the organized workplace, dispute at hand seems to be that the parties often begin
third parties mustidentify and involve to manage the boundary between their rights and
key workplaceparticipants (supervisors, interest-based procedures more affirmatively from that
union stewards, past disputants, point on. And, lastly, having a plan for the possibility of
representative employee constituencies) an unsuccessful ADRapplication makes the exit from an
in thefull scopeof the designiffort. interest-based process and entrance into a more rights-
In unorganized workplaces, based one much smoother for everyone involved,
most ADR systems are designed including the neutraL.
from the topdown;-without
sufficient involvement of em- Source: Christina S. Merchant
ployees as active stakeholders.
While this may be problematic in
any workplace, it is inappropriate and untenable
in an organized workplace. Trust in and owner-
ship of ADR processes should be achieved by
involving all the stakeholders in the design, ad-
ministration, and ongoing evaluation of work-
place ADR systems.
17
4
Collective Bargaining
Collective bargaining remains the central ment) or also try to achieve particular outcomes
forum where labor and m;magement address the (i.e., ones that are mutually beneficial and/or
issues most important to each party. However, address the parties' deeper underlying interests
practitioners are increasingly raising questions and improve their relationship).While the tradi-
around the degree to which the traditional bar- tional view of labor mediators favors the settle-
gaining process is sufficient to handle the com- ment focus, the successful adaptation of collective
plex and challenging issues that confront both bargaining as an institution increasingly requires
parties.Increasingly, management and unions have all the parties, including neutrals, to design and
multiple points of contact to address issues such manage the process in a manner that maximizes
as employment security, product or process qual- the likelihood of achieving innovative and ef-
ity, and business strategy, which may have both fective solutions.
collective bargaining and non-collective bargain- Therefore, we believe that mediators today
ing dimensions. In this context, traditional third- need to develop the technical knowledge and
party roles are more complex and new roles are expertise, as well as the process skills, to help the
emergmg. parties achieve the best outcomes possible and
We focus here on three critical roles neutrals hold themselves and the profession to this stan-
play in contemporary collective bargaining: me- dard. Quality should be measured both in terms
diating negotiations, training for and facilitating of the substantive outcomes (i.e., the extent to
interest-based negotiations (IBN), and design- which the parties' underlying interests are served)
ing and facilitating labor-management commit- and the quality of the ongoing relationship
tees that sometimes precede and help prepare for among the parties. The comments reported in
negotiations and sometimes follow and help Box 8 from several "customers" of the u.S. Fed-
implement negotiated agreements. eral Mediation and Conciliation Service
(FMCS) illustrate the importance of taking this
Mediation of Contract Negotiations approach. Box 9 illustrates the need to probe
underneath the traditional issues brought to the
So much has been written on basic bargaining table to address the deeper and less
principles for mediating collective bargaining easily formulated concerns of the parties, in this
negotiations that litde needs to be said here. Basic case nurses and hospital administrators.
references include Simkin (1971) and the Code
of Professional Conduct for Labor Mediators, Interest- Based Negotiations
jointly adopted by the Association of Labor
RelationsAgencies (ALRA) and the U.S. Federal Training and Facilitation
Mediation and Conciliation Service (1964).The
The conceptual roots ofIBN can be traced
present context, however, challenges mediators to Walton and McKersie's (1965) distinction be-
to reconsider a number of traditional principles
of labor mediation. tween distributive and integrative bargaining.
Distributive bargaining was described as nego-
13. Labor mediators need to hold themselves and tiations over issues where the parties have inter-
the process accountable for achieving outcomes that ests in conflict. Integrative bargaining was
address the parties' underlying interests and enhance characterized as problem-solving activities on
their relationship. issues where the parties' intere~ts partly or com-
Within the labor mediation profession, pletely overlapped or where multiple issues al-
there is a long-standing debate over whether lowed for maximizing the joint utility of the
mediators should focus solely or primarily on agreement. Since collective bargaining was seen
immediate process objectives (i.e.,getting a setde- as involving both types of issues, Walton and
18
Box 8
Mediation of Collective Bargaining Disputes
Twoexamplesthat arosein recent "cus- on in our industryand the wayit affects our
tomer" feedback briefings held by the FMCS bargainingunits." At another briefinga
illustrate the pressures mediators are under to managerfrom a small firm that had recently
attend to the quality of the substantive and been organized and negotiated its first union
relationship outcomes of collective bargaining contract commented, "Weare a small start-up
disputes. enterprise that is still losing money. Wedon't
At one briefing a utility industry executive project a profit for another two years. The last
said, "If you are going to be helpful in our thing we wanted was a union or a union
industry, you have to understand the conse- contract, but now that we have one we will fail
quencesof deregulation."Atthe samebriefinga if we don't havea goodworkingrelationship
health careunionofficialcommented, "If youare right from the start. Mediationhasto help us
goingto mediatehealthcaredisputes,youhad with this nowor wewon't be herein two
better understand the restructuring that is going years."
Source: Participant comments made to Thomas Kochan and Joel Cutcher-Gershenfeld, Customer Feedback
Briefing, Federal Mediation and Conciliation Service, Boston, April 2, 1997; San Francisco, April 7, 1998.
McKersie described it as a "mixed motive" rela-
tionship.
Box 9
Later Fisher and Ury (1981) applied and
popularized the Walton and McKersie model and Suifacing Deep Issues of Interest in Health
extended it by arguing that "principled negotia-
tions" (later called IBN) could be applied to any Care Bargaining
issues, settings, or processes, including collective Collectivebargainingbetweenbargainingunits of
bargaining. Since the publication of their influ- nursesand health careinstitutions in the U.S.often
ential book, IBN has gained widespread atten- richly illustrates the tension betweensubjects of
tion and considerable experimentation. For bargainingregardedas traditional to labor~manage-
example, a 1996 national survey of labor and ment relations(wages,hours,and workingcondi-
management negotiators in the U.S. reported that tions) and issuesthat stretch towardthe typically
69% were aware of IBN and 41% had experi- managerial responsibility of operating the enterprise.
ence with it (Cutcher-Gershenfeld, Kochan, and Basedon scoresof negotiationswith units of
Wells, 1998). registered nurses, my experience has been that the
Rapid growth in awareness and support toughest issues are rarely economic, but rather have
for IEN is creating opportunities for dispute been "best practice" ones such as "working safe"
resolution professionals. Care must be taken, with respect to mandatory shifts, overtime, or
however, to nurture this relatively new approach patient load.Suchquality-of-serviceissues, often
to negotiations to avoid applying its principles non-mandatory subjects of bargaining, are typically
and tools in ways that lead to disillusionment embeddedin what the publichearsis an economic
and/ or actual harm to the interests of one or impasse.Oneof the challengesfor neutralsworking
both parties. in this arena is to accept the depth with which these
As Gerald McCormick has written to the issues are of concern to nurses as a profession and
Task Force, "I have been aware of or involved to assist the health care institution's representatives
in perhaps half a dozen situations lately where in sharingsomeof their inherent powerand control
someone has gotten "Getting to Yes" as a over such matters. The best negotiations haveoccurred wherethe institution and the nursebar-
religious experience and converted labor and gaining unit haveengagedin a "partnership"
management. The result has been a loss of the approach to such issues, utilizing joint committees
perception of creative tension between the par- andinterest-basedproblemsolvingas tools for
ties and the overthrow of the leadership of the dispute identification. andresolution well before the
union that is seen as being in bed with manage- pressure of a looming contract expiration date.
ment. The new leadership is elected OIl a plat-
form that is strongly opposed to such stuff.This SourceC: hristinSa.Merchant
is the type of misuse ofIBN we need to avoid."
19
14. Facilitators if interest-based negotiations training programs is available. Although one
processeshsouldensurethatbothpartiesareadequately party or the other may be trained on their own,
trainedin appropriateskills and methods. field research clearly shows that joint training
Experience shows that successful use of has the highest likelihood of producing out-
IBN requires training and active facilitation of comes valued by both parties. Also, recall that
negotiations (see Box 10), and a wide variety of the key ~ource of distrust toward QWL efforts
was that they were seen as vehicles to advance
only management's interests. In the absence of
Box 10 joint training, these suspicions will carryover
to attempts to introduce interest-based nego-
IBN: Avoiding Simplistic "Wtn- Wtn" Formulations tiations: Another reason for encouraging joint
We are encountering a growing number of horror training is that it provides a common experience
stories where parties are given what might be termed on which to build a joint relationship. The
one-dimensional or overly simplistic training around examples described in Boxes 11, 12, and 13 il-
interest-based bargaining skills. EssentiaLLy,problem- lustrate the benefits of this careful approach;
solving tools .are imported along with promises that
all issues can be resolving in a "win-win" way. 15. Interest-basednegotiationfacilitators need
Inevitably, difficult issues surface and the process to addressthe rolesof constituentsin theprocess.
doesn't fuLLyanticipate the use of power or outside The single most common source of failure
pressure from constituents. Sometimes, information in interest-based processes lies in moves by
is shared and then used against negotiators. In the union or managem~nt constituents that
end, parties feel that they are worse off than if they undercut the problem-solving efforts of parties
had stayed with a traditional, arm's-length process. at the bargaining table. Facilitators, trainers, and
While we deeply believe in the value of joint parties need to educate constituents about how
problem-solving and have often seen the enormous interest-based bargaining works and the ways
potential associated with a search for mutual gains, constituents contribute to the success of the
this only works in a context where there is fuLL process. Failure to address these issues ensures
attention to the complicated institutional and power they will arise at some point as the process js
realities of coLLectivebargaining. As such, parties carried out.
should make sure that prospective trainers or facili-
tators understand how bargaining teams are selected 16. Facilitatorsneed toensurethat interest-based
within unions and by employers, how ratification is processesareadequateto handle issueson which there
conducted and all of the important details along the aredeep conflictsoj interestand in which the exercise
way. A basic issue, for example, involves an apprecia-
tion for the democratic structure of unions and the ifpower is central.
Some proponents of interest-based nego-
hierarchical structure of employers. This means that a
new bargaining process has to take into account the tiations have been zealous in urging the univer-
concerns of many.union leaders about being re- sal applicability of a single set of problem-
elected and the concerns of many managers about solving methods. Parties are not well served if
accountability to higher executives. Experienced they are given the impression that all issues can
third parties who understand these institutional be resolved with "win-win" outcomes or
realities can help to educate constituents on the through the use of anyone method. Too often,
nature and legitimacy of new approaches to coLLec- parties have been disillusioned when these
tive bargaining. In fact, we have each been asked to methods were abandoned in the face of strong
make such presentations. For example, in a school uses of power and other levers or when parties
setting, an orientation to interest-based principles were left worse off than might otherwise have
was provided to the full faculty and community been the case.
officials in advance of applying these principles at While strong advocacy of new methods is
the bargaining table. Such presentations are only required. to support experimentation and diffu-
credible if they are realistic about the deep disagree- sion, it must be tempered by recognition that
ments that can surface in collective bargaining and collective bargaining involves deep economic
attentive to institutional realities. With such cau- conflicts of interest and the use of power as a
tions, however, professional thjrd parties cali help motivational force. Thus, a third party needs to
facilitate innovation in the bargaining process-with assess when interest-based approaches are ap-
informed sanction and support from constituents. propriate and work with the parties to mix this
Source: NancyPeaceand Joel Cutcher-Gershenfeld, approach with others (as illustrated earlier in the
correspondenceto the TaskForce Dispute Resolution Spectrum).
20
-----.
Box 11
Encouraging Interest-Based Negotiation in Canatkl
In 1994, the CanadianFederal form of a catalyst for change that .establishingjoint union and
Mediationand Conciliation led them to attempt mutual gains management training,
Service invited various unions bargaining. In general, the parties .training at alLlevelsof the
and firms from across Canadian had come to realize that, in an organization, -
jurisdictions to Ottawato share increasingly competitive environ- .developinga role for a
their experiencesregarding ment, the costs associated with facilitator or a consultant in the
mutual gains bargaining in the traditional bargaining tactics may training process,
format of a Roundtable. The be too costly for firms (e.g., . using an outside facilitator
union and management practitio- strikes). In addition, the reliance in the mutualgains bargaining
ners came from a broad cross- on third-party settlements, while processitself,
section of Canadian organizations resolving overt conflict, often .choosinga facilitatorjointly,
and industries (e.g., Alcan, Bell resulted in solutions which did . realizing'that training in
Canada, Ontario Hydro, and not match well either party's mutual gains bargaining may
Saskatoon Chemicals; the Broth- most preferred solutions. While require considerable financial
erhood of Local Engineers, the not all of these attempts at resources,
International Brotherhood of introducing mutual gains bar- . recognizingthat the time
Electrical Workers, the United gaining worked well, the discus- required to develop a process can
Steel Workersof America and the sion at the Roundtable revealed a be lengthy, and
United Transportation Union). number of joint organizational . establishing good communi-
.Almost all of the parties had conditions which tended to lead cations between management
had long-term, traditional ad- to the success of the mutual and union organizations.
versarial bargaining relationships, gains bargaining, including the
but they had experienced some benefit of: Source: Chaykowskiand Grant, 1995
Box 12
Interest-Based Negotiation in San Francisco Hotels
The San Francisco Hotels Partnership operations. A training program for 1,600
Project was created in 1994, involving twelve workers in ten hotels has provided a com-
unionized first-class hotels and two of the mon foundation in communications skills,
city's largest union locals. The project's critical thinking, problem solving, and
primary goals included increased market teamwork. A recent pilot effort trained 160
share for participating hotels, retention and workers, many of whom work in non-food
improvement of job$ and job security, and service positions, for certification as basic
new programs for employee involvement, - banquet servers. These workers are available
training and career development. Labor and through the union's hiring haLLto any of the
management agreed that they had a common . participating hofels to help alleviate the
interest in raising the quality of service in heavy workload demands during the end-of-
the hotels through joint problem-solving, year holidays. Future study teams will
increased on-the-job training, and the explore additional ways to increase job
creation of opportunities for advancement stability through referrals of part-time
within and across participating hotels. A workers across participating hotels, in-
joint steering committee controls funds from creased training and promotion opportu-
state training agencies and employer contri- nities, and work redesign to accommodate
butions. older workers. .
Problem solving groups have been created These innovations were the product of an
in each hotel, comprised of two-thirds IB,Nfollowing training and with the facilita-
workers and one-third managers, with tion of the Federal Mediation and Concilia-
facilitation by a neutral third party. The tion Service.
teams deal with issues of job design,
wOJkloadtraining, job security, and hotel Source: Kazis, 1998
21
Box13
Interest-Based Negotiations among Multiple Parties:
The Department of Energy's Nevada Test Site
In early 1994 BechtelNational Inc. began In Marchof 1997, representatives fromall
assemblinga team to respondto the Depart- of the craft unions and the BNCmanagement
ment of Energy's(DOE)Requestfor Proposal attended a two-day, interest-based bargain-
for a single source manager of the Nevada ing workshop conducted by FMCS.In early
Test Site (NTS).Ultimately, the Bechtel April, the leadership of the craft unions and
Nevada team would involve a partnership of the BNCmet with FMCSto formulate a
Bechtel National,Inc., LockheedMartin mission statement and the ground rules for
Corporation, and Johnson Controls, Inc. . . . interest-ba~ed negotiations.
The labor relations plan for the NTShad to Negotiations began in April, with bargain-
address coordinating the administration of 31 ing committees for maintenance and con-
labor agreements. Bechtel reached out to the struction meeting on established schedules
Southern 'Nevada Building and Construction every two weeks for four to five hours.
TradesCounciland to other AFL-CIOunions Facilitated by the FMCSthroughout the
representing employees at the NTSto secure process, the parties addressed each and every
support [and] the building trades and the contract article and section, discussing their
other unions signed a letter pre-committing interests and concerns, striving to make
to negotiate a Southern Nevada Labor changes necessary to assure the goals
Alliance (SNLA)if Bechtel Nevada was outlined in their mission statement. . .
awarded the DOEcontract. During these negotiations on boilerplate
[After Bechtel won the contract] . . . language, BNClabor relations and individual
several joint committees were established. craft unions were meeting and reaching
The Federal Mediation and Conciliation agreement on craft-specific issues. The
Service was chosen by the parties to provide parties all agree that these items were
neutral, third party assistance in the training completed in record time and attribute that
and facilitation. of three of tnese committees: rapid progress (as compared to past negotiat-
the WorkRules, WorkAssignment Dispute ing history) to the relationship and trust the
Resolution Process, and Communications parties were continuing to build through the
Committees. Southern Nevada Labor Alliance. . . [0] n
Buoyed by the successes of the initial year September 23, 1997, [the parties] reached
of the Alliance. . . labor and management consensus on the final outstanding articles
committed to move into the next phase of and sections, and the crafts agreed to
their cooperative relationship, using interest- recommend the contracts to their bargaining
based bargaining to negotiate the labor units.
agreements that were to expire October 1,
1997. Source: Ritter and MansoliLLo,1998, pp. 39-42.
17. Third parties have to strike an appropriate Labor-Management Committees
balance betweenabandonmentand dependency.
In many instances, parties are experiencing Workplace-level labor-management com'-
interest-based negotiation for the first time. A mittees established to resolve particular problems
third party who provides training in IBN prin- or to consult on a general basis have existed since
ciples should advise the parties that a small the turn of the century. Principles for governing
amount of training will not be sufficient in the them are likewise well established.
absence of additional facilitation support.Assess- Committees are often used to supplement
ing how much additional facilitation may be formal contract negotiations in two ways. One
needed is an important 'part of the third-party way is to establish a special-issue study commit-
role in building the parties' capabilities with IBN. tee long before the start of negotiations. The
At the same time, it is important to help the par- committee's role is to analyze a complex issue in
ties become self-sufficient. It is professionally ir- depth and explore options for addressing it, per-
responsible to remain in a third-party role longer haps through considerable data collection and
than needed. information gathering. In this way,problems that
22
would be difficult to resolve solely in a dead- as noted earlier, the facilitator must be
line-constrained negotiation process can be re- mutually acceptable to the parties.
solved satisfactorily. A second way committees
are often used is to implement one or more pro- 19. Neutrals need to ensurethat labor-man-
visions of a negotiated agreement. Many provi- agement committees have cleargoals, adequate
sions are not self- implementing, such as ajoint resources,and shared commitment in order to achieve
safety process or a productivity improvement their assignedmandate.
process. Both types of committees can be ex- Too often labor-management com-
tremely useful. On the other hand, all too fre- mittees are established as a convenient way
quently, committees have been misused. to take a complicated issue off the bargaining
table. Used in this way, labor-management
18. Labor-management committees, like work- committees contribute to cynicism and are a
place participation processes, should be linked to the poor use of .scarce leadership resources.
collective bargaining agreement and other labor- However, many of the complicated issues
management forums so as to support (and not facing parties today cannot be adequately
undermine) the bargaining relationship and negotia- addressed without prior joint analysis or
tions process. ongoing joint oversight and administration.
The scope of the committee'sjurisdiction As a result, facilitators and other neutrals must
(issues) and authority to consult or decide issues hold parties accountable for the appropriate
should be clarified. Neutrals often serve in dif- use of this tool. Box 14 describes an example
ferent capacities-chair, executive director, fa- of the redesign of several labor-management
cilitator, designer, advisor, or arbitrator of committees that had been created or used for
unresolved issues.These roles must be clear and, the wrong reasons.
Box 14
Redesigning Labor-Management Committees
I recently worked with a was an explicit desire to seek
police department and union on union support or concurrence.
improving their labor-manage- . advisory committees where
ment relationship. Management the purpose was purely to
told me that the union was exchange information and ideas.
trying to usurp management These operated on a consen-
rights through a very extensive sus basis with the assumption
system of joint committees. that, if a consensus was reached,
The union told me management it wouLdbe impLemented (since
was trying to use aLLof the the chief was directly repre-
committees to slough off sented on the committee).
management responsibilities, Wethen jointly created a
especially on difficult prob- template based on these prin-
lems. Weended up defining ciples which was applied to all
thre.e types of committees: existing committees (weLLovercolLective bargaining half were eliminated). It was
committees (i.e., grievance then agreed that the template
committees) wherethere was would be used for all future
joint decision making. proposed committees.
. partnership committees
where the dec:ision was a man- Source: Gerald Cormick, correspondence
agement prerogative but there to the Task Force
23
5
Strategic Level
In 1945, U.S. President Harry Truman's Union- Management Partnerships
National Labor-Management Conference broke
down in part because employers wanted labor to John Stepp and Thomas Schneider define
agree that certain managerial issues would al- union-management partnerships and some start-
ways remain outside the scope of bargaining ing principles for guiding them as follows: "Al-
while union leaders were unwilling to agree on though a wide range of possible relationships
such a limit. (The parties also reached a dead- can be called partnerships, some minimal crite-
lock over union security issues.) Since then, sub- ria should be met before either party employs
ject to legal limits on the scope of bargaining the term. The scope should embrace more than
and the general rductance of either management one issue jointly selected and deemed worthy
or labor to venture too far into managerial rights, by both labor and management. The nature of
the boundary of collective bargainiI].ghas gradu- the interaction should be other than traditional,
ally expanded. . adversarial contract negotiations or right-based
In recent years the boundary has been contract administration. The interaction should
blurred in most labor-management relations and be of an on-going nature, and the relationship
crossed explicitly in others. This is because of should be based on the principle of reciprocity,
increasing recognition that critical decisions shap- with both sides benefiting. This entails parties
ing labor-management rdations and the out- sharing relevant information and utilizing prob-
comes of employment relationships are made at 'lem-solving methods. The arrangement must be
high or "strategic" levels of organizations, tradi- freelyIvoluntarily entered into-with good faith
tionally off-limits for labor-management rela- and honorable intentions" (Stepp and Schneider,
tions. At the same time, neither labor nor 1997, 55).
management is comfortable operating in this Richard Walton,Joel Cutcher-Gershenfeld,
domain. and Robert McKersie (1994) describe part-
Most managers and their constituents still nerships as a mixture of collaborative problem
want to preserve their autonomy and discretion solving (fostering) and hard or power bargaining
over strategic issues. They are also uncomfort- (forcing). Again, the mixed-motive nature of
able with bringing a political organization into these interactions requires skillful handling if
the highest levels of a hierarchical structure. At these processes are to be robust and useful. A
the same time, the political nature of unions major role for third-party facilitators and
makes it very difficult for leaders to be part of designers of partnerships is to assist the parties
decision-making processes, which sometimes in managing these mixed-motive relationships.
may produce decisions that are unpopular with Partnerships such as those discussed above
their constituents. Yet, increasingly, parties find. are in some ways the equivalent ofJabor-man-
it necessary to overcome these tensions. agement committees that function at other lev-
Addressing these issues is a critical chal- els of the relationship-they are indirect forms
lenge for third parties working with labor and of involvement. So, the same principles apply
management leaders in strategic-level forums or here, as well as several additional ones. However,
structures. We will discuss briefly two emerging partnerships go further because by definition they
types of strategic interactions that neutrals are address deep issues that go to the heart of power
being called on to design, facilitate, or in some and control in the organization-issues that af-
cases serve directly: union-management partner- fect the long-term livelihood of all stakeholders.
ships and employee stock ownership plans As such, this represents a clear expansion of the
(ESOPs). domain of traditional labor relations.
24
20. It is a third party's responsibility to make This is a domain where norms are still be-
partnership normsas transparentaspossibleregarding ing established. Inevitably, strategic choices will
tough issuessuchasviolations of conjidentialit}j infor- be made that will directly undermine the spirit
mation sharing,or controversialunilateral decisions- or substance of partnership activity.Hard choices
<1ndthen to help resolveconflictswhen thesenormsare must be made in helping the parties to properly
violated. balance decisions to abandon the process, hold
the process hostage, or confront the issue.A case
example is provided in Box 15.
Box 15 Managers must share with their union part-
Dealing with Violation of ners information that in the past would have re-
mained within managerial ranks; they must also
Partnership Norms be open to union influence over issue agenda
and resource allocation decisions, which tradi~
A strategic-level partnership council of
tionally have been largely within management's
several years' standing ran into a viabil-
ity-threatening series of issues as the control. Union representatives, in turn, must
result of unilateral action by the manage- accept greater responsibility and be willing to be
ment representatives in proposing dispute held accountable for decisions made jointly and
resolution language for passage by for appropriate treatment of confidential infor-
Congress without advance notice or mation. Box 16 describes the features of one of
discussion with the union. Outrage was the leading examples of a current partnership in
palpable during the first meeting after the Canada.
event as the effect of embarrassment of
union leaders to members was mentioned, Employee Ownership
abrogation of the existing labor contract
was assumed given the congressional Employee ownership has grown in recent
proposal's language, and betrayal of years. Some estimate that in the United Sfates
assumed norms for notice and participa- alone there are over 12,000 firms, covering per-
tion of union leaders in strategicinterac- haps as many as 11 million workers, in which
tion with Congress was noted. After employees own 30 percent or more of the stock
several hours of diatribe, the facilitator (National Center for Employee Ownership,
encouraged the parties to explore the 1997). Only a small fraction of these, however,
underlying causes leaaing to the calami- extend any meaningful role in governance to the
. tous event. workforce. The majority are managed in a tradi-
As is so often the case, a string of
more minor violations of norms had not tional fashion. Experience with employee own-
been fed back to the responsible individu- ership sugg~sts, however, that the motivational
als as a regular course of meetings. (as opposed to the tax or wage reduction) ben-
Further, disputes had been left to fester efits ofESOPs require employee and union par-
at local levels without intervention by the ticipation at all levels of the firm. Box 17
strategic partnership. As a result, the describes the ESOP in place at Algoma Steel.
management held the view that there was
no possibility that the union would be 21. Neutralsassistingin the designor imple-
willing to "partner" on these issues-and mentationof an ESOP shouldencouragcereation<1
so the management partnered with the appropriatemeans<1employeeand unionparticipa-
funding sources instead. With thorough tion ingovernancperocesseast theworkplacuepthrough
discussion of respective interest~, needs to thestrategiclevels<1theorganization.
and concerns; the parties developed and Third parties increasingly.find themselves
agreed to a plan of action, which ad-- "at the table" when fundamental changes take
dressed both the need to design joint place in organizations, such as-the establishment
interventions in long-standing disputes as of an ESOP. Our recommendation is based on
well as for the establishment of norms for the underlying principle that a third party has an
regular council meeting feedback, commu- affirmative duty to attend to the interest of all
nication, and conflict management. relevant stakeholders-including those not part
of the intended structure.
Source:Confidential
25
n___-
Box16
Developing a Partnership at Bell Canada
Facilitation was an major unions, the mostly introduce employee teams
important aspect of the blue-collar CEPand the and the creation of a joint
management of mixed-motive mostly white-collar CTEA.The company-level steering
interactions and the evolu- CIFsconsist of three or more committee to oversee the
tion of a move toward senior executives from each initiative. These recommen-
partnership in industrial side. Although there are no dations were accepted with
relations and restructuring in rigid rules about member- some modifications by both
the case of BeLLCanada. ship, most CIFmembershave sides. Subsequently,
HistoricaLLyB, ell Canada been at the president or vice employee teams were
has experienced a fairly president level.TheCIFs introduced in a number of
traditional relationship with provide a structure within work sites.
its major unions, including which leaders from both sides In the process of moving
the Communications Workers can share information about toward a joint approach to
of Canada (the CWC,which issues of strategic impor~ organizational change and
merged later with two other tance to the business and to adaptation at Bell Canada,
unions to form the Communi- the relationship. both the management and
cations, Energy and Paper- The second initiative was union sides relied heavily on
workers [CEP]and the a joint decision to use training in a wide range of
Canadian Telephone Employ- principles of interest~based aspects of human resources,
ees Association [CTEA]). negotiations in collective especially concerning
Competitive pressures were bargaining. The technique process issues, and utilized
minimal in a heavily regu- was first introduced in 1990 the resources of external
lated industry. Generally, and was used repeatedly with third-party neutrals to
before deregulation, tele- both unions during the facilitate the various stages
phone companies were quite 1990s. of the process.
profitable, which afforded the The third initiative was to By the late 1990s, the
major firms the resources to collaborate, in workplace intensely competitive
undertake advanced programs reorganization, as a vehicle environment in the telecom-
such as training and em- to enhance employee and munications industry placed
ployee involvement without union involvement in work strong pressures on BeLL
the pressures of an immedi- redesign. The CEPput forth a Canada, and job security had
ate business crisis. However, set of far-reaching proposals become a key union-man-
in the 1990s competitive for its involvement in work- agement issue. While strains
pressures escalated in the place reorganization at the have developed in the
telecommunications industry 1990 bargaining round. While relationship and the process
as the process of deregu- these proposals were rejected of work reorganization has
lation accelerated. by management at the table, not proceeded as originally
During this period Bell the company agreed at a envisaged, there remains a
Canada and its unions subsequent meeting in 1992 commitment to a joint
gradually tried to create a to form a joint task force approach to labor-manage-
better partnership. Mutual with each union to study the ment issues.
accommodation in three subject and make recommen-
areas was notable. First, the dations. Both the CEPand the Sources: John R. Stepp, cor-
company established a CTEATaskForceson Work- respondenceto the TaskForce;
separate Common Interest place Reorganization recom- Vermaand Chaykowski,1997;
Forum (CIF) with each of its mended adoption of a plan to Chaykowski,1996
26
Box 17
Employee Ownership at Algoma Steel
CoLLectivebargainingat Algomais gov- . The union obtained four of thirteen
erned under provincial legislation. The tone seats on the board of directors.
of coLLectivebargainingat this organization . The employees control (through a vote)
has been, as it has generallybeen throughout any future sale, merger, or dilution of em-
the Canadian steel industry, very adversarial ployee ownership to less than 50%.
with low levelsof trust. Algomaexperienced The plan also included a comprehensive
a major13 weekstrike/lockout in 1990 and and far-reaching program of management
was close to bankruptcyand Dofasco,its and workplace change that included the
steel company parent, expressed its intention establishment of the followingkeyjoint
to write-off its investment. structures:
To resolve the longer-term viability of the . A senior-level Joint Steering Committee
firm, the then Premier of Ontario, Bob Rae, with the mandate to direct the development
struck a task force to examine possibilities for and implementation of a workforce participa-
a business restructuring of Algoma. An initial tion process and plans and programs to
plan forwarded by Dofasco to the provincial redesign the workplace.
task force was rejected by the United Steel- . AJoint Training Committee with the
workers of America (USWA),which then mandate to develop a comprehensive training
proceeded with a comprehensive restructuring plan for new employees. This Committee
and ownership transfer plan of its own; it was completed its work in 1993 and was suc-
ultimately accepted by aLLparties, including ceeded by a union-management Joint Train-
Dofasco, the banks, employers, and other ing Board.
creditors. Under the plan, a new collective Other elements of the change process
agreement was established which included include extensive training, information
details of the restructuring and workplace exchanges, and increased focus on issues
redesign and aLLowedfor worker participation. such as quality of worklife, human rights, the
Under the USWAplan, the ownershipand re-integration of injured workers into the
control of the firm were transferred to the workforce, and the development of pay-for-
emp.loyees (Algoma Steel Inc. N.D.): knowledge compensation systems.The employees obtained 60% control
over the restructured firm. Source: Chaykowski,1996
6
Societal Level
Moving from the firm or industry level to sectoral multi-party councils or forums. In Canada
the societal level involves opening labor-man- and the United States, joint industrial councils
agement relations to a broader set of stakehold- have been established across such diverse indus-
ers and societal interests.A key role of the neutral tries as clothing, construction, railroads, food re-
in this context is to ensure that the broader voices tailing and distribution, and communications,
are involved in labor-management processes. including some dating back as far as the end of
Thus, at this level, labor-'management relations World War I. Most sectoral councils tend to deal
become a highly visible, multi-party process. with issues such as training, worker dislocation,
One important institutional development and economic development. While these efforts
at the societal level involves joint industrial or clearly have benefits far beyond anyone indi-
27
vidual organization, needs tend to vary across One of the major issues associated with
industries (Gunderson and Sharpe, 1998). broader multi-organizational forums is that the
There is also a long history of regional or activity that is supported at the sector level often
community labor-management committees or has direct or indirect linkages to results of
councils that have served to address issuesaround collective bargaining at the firm level. For
labor-management climates, training, and the example, the experience of the Canadian Steel
diffusion of innovation (Chaykowski, 1998). For Trade and Employment Congress suggests that
example, in the late 1980sWisconsin supported positive cooperative relations at the firm level
the formation of a regional tripartite organi- are often necessary to support union-manage-
zation (the Wisconsin Regional Training ment cooperation at the broader sectoral level.
Partnership) aimed at assisting displaced workers Some Canadian sectoral councils have formally
in the Milwaukee area as well as supporting undertaken to establish linkages (direct and
development of human resources through a indirect) between council programs and
Wisconsin Manufacturing Training Consortium. individual workplaces by forming joint labor-
At times, government agencies have cre- management committees in the workplace (e.g.,
ated labor-management committees to solve in the mining and electrical! electronics
problems within a sector. Secretary of Labor manufacturing industries).
George Shultz set up one in construction in
1969-70. The Missile Sites Commission of Private Discussion Groups
'1961~7 was a well-known committee that dealt
with the special issues of that environment. Private labor-management groups in the
In recent years, the Canadian federal gov- United States have a long history, datingback to
ernment has supported numerous sectoral coun- the National Civic Forum that operated in the
cils aimed at human resource and training issues, early years of this century and included John D.
as well as the problem of worker dislocation. Rockefeller and Samuel Gompers. And, even in
Two of the most prominent of these are the these early years, neutrals such as Professor John
Canadian SteelTrade and Employment Congress R. Commons from the University ofWisconsin
and the Electrical/Electronics Manufacturing provided staff expertise and/or helped to
Industry Sectoral Council. facilitate. Throughout the 1970s and 1980s,
Box 18
Neutrals and the WOrk of the British Colitmbia Labor Relations Review Panel
In 1997, the Government of British to specific adjustments tp the labor code,
Columbia established a Labor Relations and those relating to broader "innovative
Review Panel that was co-chaired by two solutions." Among the innovative solutions
leading arbitrators. The mandate of the was a recommendation that joint industry
committee was to review the B.C. Labor advisory councils be established and that
Relations Code and, more generaLLya, ssess funds be allocated for facilitators to work
the state of labor-management relations in within sectors to develop the models under
British Columbia. The work of the committee which these advisory councils would operate.
began in 1997 and extended through to the In the course of its work, the committee
beginning of 1998. The work of the commit- also commissioned a major public opinion
tee proceeded through several stages: first, poll on various aspects of industrial relations.
written submissions were widely sought and While the public opinion research indicated
r~ceived; second, the committee undertook a that there appeared to be increased polariza-
range of public meetings with the various tion between business and labor, it also
stakeholders in industrial relations; third, the revealed that there was broad-based support
committee undertook to develop a discussion for innovative employee-management
paper that identified the major issues arising relations-including such practices as
from the work of the committee; and fourth, employee involvement. There seems to be
after receiving and considering comments on public support for improving the tenor of
the discussion paper, a final report was labor-management relations and neutrals are
written and submitted to the government. well positioned to facilitate this.
The recommendations of the committee
were broadly divided into those that related Source: Readyet al., 1998
28
former Secretary of Labor John T Dunlop promote new ideas, bring expertise to bear on
chaired a national-level "Labor-Management the discussions, search for areas of consensus,
Group" of CEOs and union leaders. and clarifY areas of disagreement that warrant
Since 1986, a group of CEOs and union further dialogue.
leaders have come together in the Collective
Bargaining Forum. Malcolm Lovell, president of Public Policy Commissions
the National Policy Association (formerly called or Study Committees
the National Planning Association), chairs the
forum. These groups have generally proven useful 23. Neutrals need to assist in broadening the array
in enabling labor and business leaders to interact if alternatives to consider ones that may have merit but
in a private, informal setting and from time to are not within the range if "acceptability" to labor or
time to develop broad statements of principles management.They shouldalsointroducethefull range
on topics of national importance, including on if stakeholdersinto discussionsofpublicpolicy issues.
the future of collective bargaining and labor- From time to time governments ask neutrals
management relations. The goal of these groups to serve on commissions or study groups to ad-
is to facilitate dialogue, explore areas of potential vise on changes in labor or employment laws or
agreement, clarifYareas of disagreement needing related policies.This is a special opportunity both
further discussion,and, when feasible,make public to build consensus among the stakeholders in
statements that encourage positive labor- these matters and to bring new ideas into the
management relations. policy-making process. Indeed, it is the special
Neutrals can contribute to such forums by responsibility of neutrals to do two things that
facilitating discussions, providing expertise, or the parties are unlikely to do in most of these
drafting statements for di~cussion by the parties settings, namely, to consider new ideas that nei-
in search of areas of potential consensus. In do- ther labot nor management may favor and to
ing so, th~etask is both to reflect the views of the introduce the voice of other stakeholders who
parties and to move their discussion forward. share a deep interest in workplace issues.
Adding value while facilitating .such a forum re- In Canada, several recent important gov-
quires the neutral to listen actively and atten- ernmentallabor relations commissions have been
tively to the discourse among the principals, to co-chaired by neutrals. At the federal level, a re-
reflect the areas where agreement among them view of Part 1 of the Canada Labor Code was c
might lie, and to bring research findings and new recently undertaken by a task force which, after
ideas to bear on the discussion. The facilitator broad national consultation, submitted a report
can be a source of ideas but in the end must that formed the basis for new legislation t passed
seek consensus among the parties. by the Canadian House and Senate in 1988. In
1997, the British Columbia government estab-
22. Neutrals need to encourage creation of more lished a Labor Relations Code Review Com-
forums for dialogue among 7aborand management rep- mittee, which has formed .recommendations that
resentatives over the future if collective bargaining as are currently before the government (see Box
well as other issues if importance to their industries, 18). In both cases, the government sought out
communities, and society. prominent neutrals who had an established record
Fostering increased dialogue among the of experience and acceptability to both labor
full range of stakeholders in the future oflabor- and management, as well as a broad range of
management relations (a role often played by experience in progressive/cooperative approaches
local chapters of the Industrial Relations to labor relations.
Research Association) is especially important In the US., the most recent example of a
today given the paucity of public debate and policy task force was the Commission on the
understanding of these issues.As facilitators and Future of Worker-Management Relations
as participants in these forums, neutrals need to chaired by John T. Dunlop (see Box 19).
29
Box19
The Commission on the Future of Worker-Management Relations (Dunlop Commission)
Shortly after the Clinton administration took American business and labor leaders over the
office in 1993 it created the Commission on the future of collective bargaining and labor-manage-
Future of Worker-Management Relations to assess ment relations policy. Therefore, given the balance
options for updating U.S.labor laws. Former of power in the Congress and the administration,
Secretary of Labor John T.Dunlop chaired the there was no acceptable compromise possible
commission. Its members included three other within the existing structure of the Lawor between
former cabinet secretaries, a CEOof a large busi-; these two powerful interests.
ness, a CEOof a small business, a former president .The vast majority of the American public knew
of a major national union, and several academics. nothing about the work of the commission or how
The Dunlop Commission sought to break the the issues being discussed affected their work or
nearly twenty-year impasse' over nationallaboT interests. Therefore, there was no political con-
policy by holding national and regional hearings. stituency outside, of the well-established business
Most of those testifying were business, labor, and and labor interest groups engaged in'the policy
government leaders; researchers and neutrals with debate or urging change.
long experience and recognized expertise in . Ideas that were not likely to be of interest or
collective bargaining and labor-management acceptable to either business or labor were' not
relations; or front-line workers and managers seriously considered or aired in the commission's
chosen as spokespersqns for views advocated by hearings or recommendations since the approach
either business or labor. After two years of study and taken was to search for solutions to the problems
hearings, the commission's recommendations'were that would b~ acceptable to the business and labor
issued but rejected by both business and labor; its community or that could be viewed as fair trade-
legislative recommendations were not acted on by" offs between these parties.
Congressor the administration. The commission's The key implications from this experience for the
recommendation to expand the use of ADRhas been future are that breaking the impasse in labor policy
implemented by several agencies and courts. It wilLrequire:
remains to be seen whether the commission's work . ideas that reframe the nature of the problem and
will influence fufure policy debates. terms of the debate and propose alternatives that
The commission sought to find a middle ground cause all interested parties to rethink their views and
on labor law that would be responsive 'to the that do not appear to be "compromises" from their
problems it documented with current law (inad- fixe.d current ideologies or positions on the issues;equate protections for workers seeking to organize involvement of new "multi-party" voices in the
a union and negotiate first contracts, outdated policy-making process, including the voice of the
limitations on employee participation in union and workforce and voting public in order to elevate
non-union settings, and lack of effective means for these issues to a higher priority and level of
enforcing and adapting the growing array of visibility in national politics, and'
workplace regulations). . a solid theoretical and analytical research base
Three lessons were learned from the lack of to support new thinking and approaches to break
support generated for the commission's work and the view that labor policy is merely "special-
recommendations: interest politics."
. There are deeply embedded ideological and
substantive disagreements separating most Source: Commissionmember ThomasKochan
30
Conclusion: Looking Ahead
This report attempts to capture the fron- and skills discussed throughout this report. Simi-
tier of neutral roles in labor-management rela- larly, new roles are likely to emerge in the con-
tions as they are evolving today.We expect these text of cross-national trade arrangements, such
roles will continue to change as new challenges as NAFTA or the World Trade Organization. In
and opportunities arise. For example, one emerg- this respect, these recommendations are the be-
ing role for neutrals is serving on corporate boards ginning of a much-needed dialogue among pro-
of directors as employee-nominated members. fessionals in dispute resolution operating in
This role calls for many of the same principles labor-management contexts.
31
GuidiJ;1gPrinciples for Dispute Resolution Professionals
Working in Unionized Operations
Workplace Operations
.Facilitating Employee Involvement and Workplace Innovations
1. The facilitator must be acceptable to both union and management leaders' and to other key
stakeholders. '
2. The facilitator must ensure that the joint activities have appropriate, formal sanction via the
colle\=tive bargaining agreement Or other joint policy documents.
3. Facilitatorsneed to ensure active joint '"ownership" of the process,
4. Facilitators' need to ensure that mechanisms for dispute re~oh;ltionand other forms of due
process are built into any participative initiative.
FacilItating the Design and Operations of New Work Systems
5. It is inappropriate for third-party neutrals to assist employers in setting up greenfield sites
intended in part or primarily to avoid unionization. Doing so destroys th~ facilitator's neutrality and
acceptability in labor-management relations. .
6. Facilitators need to assistthe parties in reaching agreements governing the process for decid-
ing whether or not workers in'a new facility will be represented by the union.
7. To 'effectively facilitate the implementation of new work systems in an existing operation, a
facilitator must legitimize and help address the formal and informal rights and expectations among
stakeholders who benefit and who .are at risk as a result of proposed changes.
Workplace Dispute Resolution
8. Dispute resolution professionals have a larger responsibility to work with the parties in rede-
signing their procedures and dispute resolution systems to better accommodate the types of issues
and conflicts that arise in today's workplaces. '
9. Mediation of grievances should ,be done either (1) as part of a negotiated agreement that
outlines how mediation fits into the existing grievance and arbitration process. or (2) by joint agree-
ment of the parties. "
10. Third parties must be aware of the boundaries between statutory rights, collective bargain-
ing, and dispute resolution procedures. Third parties who ,help resolve issues that cross this boundary
need to have deep substantive knowledge of the relevant law, as well as expertise in collective bar-
gaining procedures and workplace practices. .
11. Third parties involved in workplace alternative dispute procedures in unionized settings
need to manage the boundary between the ADR and. informal and formal contractual processes.
12. To facilitate effective di~pute systems designs utilizing ADR processes in the organized
workplace, third parties must iclentiJY and involve key workplace participants (supervisors, union
stewards, past disputants, representative employee constituencies) in the full scope of the design
effort. '
Collective Bargaining
Mediation of Contract Negotiations
13. Labor mediators need to hold themselves and the process accountable for achieving out-
comes that address the parties' underlying interests ;md enhanc~ their relationship.
32
Interest-Based Negotiations Training and Facilitation
14. Facilitators of interest-based negotiations processes should ensure that both parties are ad-
equately trained in appropriate skills and methods.
lS.lnterest-based negotiation facilitators'need to address the roles of constituents in the pro-
cess.
16. Facilitators need to ensure that interest-based processes are adequate to handle issues on
which there are deep conflic,ts of interest and in which the exercise of power is central.
17.Third parties have to strike .an appropriate balance between abandonment and dependency.
Labor-Management Committees
18. Labor-management committees, like workplace participation processes, should be linked to
the collective bargaining agreement and other labor-management forums so as to support (and not
undermine) the bargaining relationship and negotiations process.
19. Neutrals need to ensure that labor-management committees have clear goals, adequate
resources, and shared commitment in order to achieve their assigned mandate.
Strategic Level
Union-Management Partnerships
20. It is a third party's responsibility to make partnership norms as transparent as possible re-
garding tough issues such as violations of confidentiality, information sharing, or controversial uni-
lateral decisions-and then to help resolve conflicts when these 'norms are violated.
Employee Ownership
21. Neutrals assisting in the design or implementation of an ESOP should encourage creation
of appropriate means of employee and ,un,ion participation in governance processes at the workplace
up through to the strategic levels of the organization.
Societal Level
Private Discussion Groups
22. Neutrals need to encourage creation of more forums for dialogue among labor and man-
agement representatives over the future of collective bargaining as well as other issues of importance
to their industries,communities, and society. .
Public Policy Commissions or Study Committees
23. Neutrals need to assist in broadening the array of alternatives to consider ones that may
have merit but are not within the range of "acceptability" to labor or management. They should also
introduce the full range of stakeholders into discussions of public policy issues.
33
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34
About the Authors
Richard Chaykowski received his Ph.D. from Cornell University and is currently an
associate professor in the School of Industrial Relations at Queen's University. He has been a
visitor at the University of Toronto and at McGill University and a visiting scholar atMIT. He is
also a cofounder and is currently a co-chair of the Canadian Workplace Research Network,
which supports a national network of human resources and industrial relations researchers in
Canada.
Chaykowski's teaching and research interests include public policy in North American labor.
markets, industrial relations, cooperative approaches to labor relations, the transformation of
labor markets and industrial relations systems, and innovation and technological change in the
workplace. He is frequently requested to speak on these issues in a wide range of forums in both
the private and public sectors, including union and senior management groups, as well as branches
of the government of Canada. His two most recent books, published in 1999, are Contractand
Commitment (coedited with AnilVerma) and Women and Work (coedited with Lisa Powell).
Joel Cutcher-Gershenfeld is .a visiting associate professor at the Sloan School of
Management, Massachusetts Institute of Technology. He is also co-chair of the Negotiations in
the Workplace initiative at the Program on Negotiations, based in the Harvard Law School.
His scholarship includes five books and over sixty articles on new work systems, labor-
management relations, negotiations, conflict resolution, public policy, and economic development.
His most recent book, written with a cross-cultural, interdisciplinary team of fourteen scholars, is
Knowledge-Driven Work: Unexpected LessonsJromJapanese and United States Work Systems (1998).
Along .with Richard Walton and Robert McKersie, he is coauthor of Strategic Negotiations:A
Theory of Change in Labor-ManagementRelations (1994) and Pathways to Change: Case Studies in
StrategicNegotiations (1995). He also has extensive experience in leading large-scale systems change
initiatives around the implementatiop of "lean" enterprise principles, team-based work systems,
continuous quality improvement processes, dispute resolution systems, and other workplace
innovations. He has worked with a wide range of public- and private-sector employers and
unions in the United States, Canada, Poland,]apan, South Africa, New Zealand, and Bermuda.
Cutcher-Gershenfeld holds a Ph.D. in industrial relations. from the Sloan School of
Management at the Massachusetts Institute of Technology and a B.S. ITom the New York State
School of Industrial and Labor Relations at Cornell University.
Thomas A. Kochan is the George. M. Bunker Professor of Management at the Sloan
School of Management, Massachusetts Institute of Technology. He came to MIT in 1980 as a
professor of industrial relations. From 1988 to 1991 he served as head of the Behavioral and
Policy Sciences Area in the Sloan School. He also served as a member of the MIT Commission on
Industrial Productivity. Kochan came to MIT from Cornell University, where he was on the
faculty of the School of Industrial and Labor Relations from 1973 to 1980. In 1973, he received
his Ph.D. in industrial relations from the University of Wisconsin. Since then he has served as a
third-party mediator, fact-finder, and arbitrator and as a cpnsultant to a variety of government
and private-sector organizations and labor-management groups.
His recent books include After Lean Production:EvolvingEmployment Practicesin theVJlorldAuto
Industry (1997) and Managingfor the Future:OrganizationalBehaviorand Processe(s1996). The
'Traniformation<iAf merican IndustrialRelations (1986) was selected by the Academy of Management
as the best scholarly book on management.
Kochan is a past president of the International Industrial Relations Association and the
current president of the Industrial Relations Research Association. In 1996 he received the
Heneman Career Achievement Award ITom the Human Resources Division of the Academy of
Management. He was named the Centennial Visiting Professor from the London School of
Economics in 1995. From 1993 to 1995 he served as a member of the Clinton administration's
Commission on the Future ofWorker/Management Relations.
35
Christina Sickles Merchant is most widely known for her work in 'fostering sustainable
partnerships between labor an'd management throughout the private, public, and international arenas.
She has recently entered private practice as a dispute resolution consultant after 26 years as a mediator,
facilitator, dispute systerns designer, and program manager. Her experience was acquired with several
federal agencies, including the Federal Labor Relations Authority, the Federal Mediation and
Conciliation Service, and the U.S. Department of Labor. Until 1996 she was the project director,
labor-management cooperation, for the Department of Defense.
Merchant coauthored a popular book, DesigningConflictManagementSystems:A Guide to Creating
Productiveand Healthy Organizations (1996), which won the Best Applied Book Award of 1997 from
the International Association of Conflict Management. Sbe is a fellow with the Maxwell School,
Syracuse University, and a past president of the International Society of Professionals in Dispute
Resolution (SPIDR). She graduated in 1971 from the New York State School of Industrial and
Labor Relations at Cornell University and received her masters in human resource and organization
development, with honors, in 1990 from the joint program of the American University and the
NTL Institute forApplied Behavioral Science.
In her private consulting practice, Merchant offers dispute resolution and conflict management
systems design services;provides training and coaching of groups and individuals in dispute prevention
and resolution processes; and serves directly as an expert facilitator and mediator in negotiations,
work groups, aI}dmeetings.
36
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