Negotiations

First of all, I am sorry for my absence from this discussion to date. Last Thursday, I had an unfortunate incident involving a sidewalk. The result (among other things) was a broken bone in the little finger in my left hand. (I have started a blog to track my hoped-for recovery from this unplanned collision in the hopes that other collidees in the future may find my experience useful: you can find it at http://theafmobserver.typepad.com/onehanded_violist/ ).

Fortunately one of the miracles of modern science is voice recognition software. Unfortunately, not only does it not work all that well (although it is good for an occasional laugh (just by way of example, that came out “occasional wife”) but I’m finding that dictating is a lot different from and, oddly enough, much more difficult way to write than is typing.

Chris Durham, who has become our de-facto house negotiator here at Local 8, made some interesting comments about IBB which deserve a response. He wrote:

“The proponents of IBB appear to believe that IBB replaces collective bargaining and try to show collective bargaining in a negative light. First the right to bargain collectively is a lawful right. It is designed to balance power between an employer and its employee’s. IBB is akin to a dialect within a language. It is a style of bargaining which can and should be incorporated from time to time in collective bargaining. It can also be used effectively in buying a car, reasoning with your children or spouse and other day to day negotiations. It does not and should not replace collective bargaining.”

I think that Chris’s analogy to interest – based bargaining being equivalent to a dialect form of a language it is exactly on – point. I have not seen the belief that IBB can “replace” collective bargaining, however. Certainly those who propose IBB do so in the belief that it can work better in a given situation then can so-called ” traditional” bargaining; otherwise, why propose it? And, in some situations I have seen, it does work better than traditional bargaining. I think it is an appropriate tool in situations where many of the facts are not fully understood by the parties, and perhaps in situations where one or both of the parties has become so ” dug in” that it’s impossible to talk about anything but “positions,” even in private. But I’ve never heard anyone propose IBB in the belief that it was not collective bargaining.

Chris went on to write:

“…The problem is, we still see situations where people do not understand how to listen, accept criticism or present a problem to be resolved. When we bargain we sometimes make a proposal which contains a solution to a problem. Other times it is more effective to just lay out the problem and attempt to convince the parties to embrace or agree that the problem exists and work mutually to find a solution.”

It is true that proposals represent solutions to problems. Unfortunately those solutions are often in a kind of code that call for a fair amount of sophistication on the part of the other party to accurately decode. If the other party is not so sophisticated, or one has misgauged one’s proposal, it can be quite easy to set the process back, rather than move it forward. One of the things I like about interest – based bargaining is that it’s a lot easier to get one’s real message across accurately. Certainly, in IBB, one is less likely to have to ask, as Metternich once asked when informed of the death of the Russian ambassador, “I wonder what he meant by that.”

Chris went on to write:

“The best way to bargain is to be honest, to understand each other’s needs and to use common sense. I see too many negotiations where the employer and the musicians are both trying to intellectually out-wit the other with disastrous results. ”

Also absolutely on-point. My own experience, however, has been that the out-witting has been more about trying to establish a defensible legal position should negotiations break down. Primarily this involves by avoiding what’s known as “regressive bargaining” and other forms of illegal bargaining, which means in practice that it’s very hard to speak honestly and openly at the table, for fear of giving something away that you may need to take back later, thereby opening oneself to a plausible NLRB charge. One other nice things about interest – based bargaining is that an absolute prerequisite to IBB to agree in advance that nothing that’s said or proposed or discussed will be the basis for a charge of regressive bargaining by the other side.

In short, it’s hard to be “honest, to understand each other’s needs and to use common sense” when your first concern it is to cover your butt.

“You can call your style of bargaining anything you want but whatever style you wish to use, if you allow it to divide your orchestra, your committee or your union, you are going to suffer greatly.”

Once again, absolutely correct. But, as we all know, traditional bargaining techniques can very effectively divide a bargaining unit as well. What divides a bargaining unit is not a bargaining technique but poor leadership. I know any number of musicians who are quite uncomfortable with the kinds of confrontations that sometimes occur in traditional bargaining. I also know any number of musicians who are quite uncomfortable with interest – based bargaining. No doubt many of these musicians, regardless of the source of their discomfort, are actually more unhappy with past results then with current process.

“The unfortunate side of the “IBB negotiations” as we have been seeing it in our industry for the past few years is the way in which it is used and the manner in which it is facilitated. When their is facilitation, the balance of power is shifted to the facilitator. When we sit “boy/girl, boy/girl” in the meetings, throw out the offensive proposals, jointly agree on the meeting notes and agree not to have individual caucus we divide ourselves. When we are divided we are weak.”

As I pointed out in my original article on IBB, there are a number of different ways to conduct such bargaining, some of which I think can indeed be harmful. But “interest-based bargaining” is not a precise term, and does not involve following anyone’s cookbook. Chris seems most concerned by the notion of facilitation, and indeed it does sometimes shift power to a facilitator from some of the participants. On occasion, this can be a very good thing for the musicians. If, for example, the facilitator is someone who can make valid points to the other side in a way that they’ll hear, that the process has been advanced and not harmed, and not just from the musicians’ standpoint.