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Advocacy in Collective Bargaining

Kieran Dowdy

Advocacy in Collective Bargaining
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Representing a union (or management) in collective bargaining is a lot like being a litigation advocate, but with a different set of priorities. You’re not worried about discovery and motions for summary judgment, but you still need a thorough understanding of the law and facts. There are preliminary steps and critical tools throughout the bargaining process to ensure that you get the result you need for your client. Finally, the relationship between both sides of the negotiation—and your own relationship with your client—have a unique influence on the type of advocate you’ll be at the bargaining table. I’ve based my initial observations on five years of public sector bargaining for unions. I suspect similar rules apply in the private sector and on the management side of the table as well.

Learn the Math

The whole point of collective bargaining is to reach an agreement on wages, hours, and other terms of conditions between management and the union. That involves economics, and you need to be prepared to talk the numbers fluently. Run the numbers yourself (or find someone who can). Know what the current inflation rate is and where it’s headed. Figure out how to at least read an actuarial study so you can know if the retirement plan is about to go under or where the employer revenue is coming from (and where it’s headed). A bonus tip? Learn how to use Excel quickly and effectively, with something like Excel for Dummies. The internet has plenty of tips too.

Learn the Business

Similarly, learn your client’s business and industry. Just like you’d run a background check about a personal injury client, you need to understand the ins and outs of the work. Understand the employees’ lives and the challenges on which management is focused. Know the specifics of how the company works and how the employees perform the work on behalf of the company. Identify areas of common interest and be prepared to highlight proposals that will solve everyone’s problems.

Manage Your Client

The only thing harder than getting concessions from the other side is getting your client to understand what is and isn’t possible. You don’t just work to get your client the best deal possible, but show your client that they’ve successfully reached the best possible deal. Understand early on your client’s actual goals, not just the positions they want you to take. Is it more money? Are they actually concerned about fairness? To be successful at the bargaining table, take the time to analyze their positions and find the fundamental truths behind those positions.

Almost every time, the union will dismiss the first offer as outrageous and an insult. It’s OK for everyone to feel upset, but you have to be calm and point to the long game. You’re just beginning. Just as a trial attorney cautions his client about the risks of trial, you’ll have to spend time cautioning your clients about the risks of no deal. A strike (if your union has the legal authority to strike)? Expiration of the agreement? A lockout? These are real risks, and as the parties reach their final positions, keeping a fine eye on the risks of no agreement—just like the risks of trial—is critical.

Make Good Impressions

Finally, just like in the courtroom, being a good advocate means being a forceful, well-prepared attorney ready to make your case to the other side (and your own). But remember: you’ll be back. Labor agreements don’t end with a verdict; they last for a period and then come up for renegotiation. There will be issues with the contract throughout the agreement. For example, what everyone thought was an explicit agreement about bidding for shifts based on seniority forgot people who left the company and came back. Everyone can file grievances and argue, but a good relationship with the other side can solve this with a phone call. What does that mean? Be aggressive but reasonable. You’ll see these people again. Burning a bridge now may work in the short term, but it’ll set you and your client back in the long term.

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