Labour: Everyone's interests

Prevent disputes with smart labour talks.

At 10:40 p.m. on April 10, unionized workers at Canadian National Railway voted overwhelmingly to reject their new contract. By midnight, rolling strikes began in Kamloops, B.C., and Vancouver, threatening a repeat of the 15-day general strike in mid-February that exacerbated a fuel supply shortage and cost the economy millions of dollars. CN management swiftly responded with lockouts, and expressed disappointment. Talks between CN and United Transportation Union reps the following Saturday yielded no results. Ultimately, the federal government legislated workers back to their jobs, but the issues remain unresolved.

Clearly, there's no silver bullet to resolve this particular dispute. But for future discussions, CN managers and their labour counterparts might want to consider talking to Joel Cutcher-Gershenfeld before they reach an impasse. The co-chair of Harvard University's Project on Negotiation in the Workplace and Dean of the Institute of Labour and Industrial Relations at the University of Illinois, Cutcher-Gershenfeld wrote the book on strategic negotiating in industrial relations, a component of which is interest-based bargaining—a negotiation strategy that is becoming increasingly popular in the United States. The goal of such bargaining? A collective agreement that, as Cutcher-Gershenfeld puts it, “maximizes interests on both sides.”

In traditional bargaining, the two sides take positions that overstate their needs. Each side then grudgingly concedes points as they inch toward a deal. This may radically change the original list of demands, potentially undercutting a negotiation team's mandate to its constituents. Combine that with imprecise contract language and no wonder such deals often fall apart. Interest-based bargaining opens up the process, explains Cutcher-Gershenfeld, generating a wider range of solutions that more accurately reflect and satisfy both sides' interests.

Here's how it works. At the preparation stage, the two sides consult all the parties they represent and figure out where to be flexible and where to be more firm. Teams then bargain over how to bargain, setting ground rules and reducing the scope for misunderstandings. Both sides might even choose to jointly gather information on contentious issues—or keep shared minutes that are typed on overhead projectors—so everyone in the room is, quite literally, on the same page.

When negotiations start, teams begin with an open-ended opening statement, perhaps designed as a question, rather than a list of demands. A sample question: How can union membership and management enforce a work environment that is both safe and productive, in which members feel appropriately compensated for deadline-intensive work? Starting this way means both sides implicitly take responsibility for the problem, and keeps discussions focused on each side's interests, rather than inflexible positions. Instead of going in with, say, specific restrictions on subcontracting, teams could discuss how the union can be the workforce of choice. Both sides then come up with a range of options to resolve the problems.

Finally, Cutcher-Gershenfeld encourages embedding a feedback loop into the contract. Teams define how the contract's terms will be implemented, using surveys and task forces to determine where a deal is working and where it might need to be changed.

All this may sound impossibly touchy-feely to ears long hardened by labour battles. But at Harvard's most recent seminar in Boston in mid-April, interest was palpable. One management representative from the city of Miami's Fire Department, Tarlesha Smith, said she could see how these ideas would help her solve more intractable labour problems. Likewise, Senator David Massiah, general secretary of Antigua & Barbuda Workers' Union, believed more groups need to try the strategy. Cutcher-Gershenfeld has been teaching four such two-day seminars a year since 1997, to some 4,000 students in total. Since the seminars began, several successful collective labour agreements have been signed based on principles of strategic negotiation and interest-based bargaining; the most high-profile of which was the 2003 deal between insurance megalith Kaiser Permanente and eight unions that resolved a decades-long dispute.

Whether interest-based bargaining could help CN now is debatable. At issue are wages, safety concerns and protests against what union spokesman Frank Wilner describes as excessively strict discipline enforced through employee surveillance. Meanwhile, management told employees that the union “tabled huge settlement proposals that were far and away from any settlements in the rail industry.” CN also says it won't budge beyond the wage increase negotiated in the rejected deal. That said, interest-based bargaining could be used on the enforcement issue, if both sides agree to jointly conduct a quick survey on how management is disciplining attendance. Showing the extent to which the issue is a problem would build trust and—ideally—generate a solution. Both sides would also have to put aside their public demands in favour of a broad discussion on wages and attendance expectations.

In light of the animosity that has built up, such tactics may not be useful. But with the right combination of openness and commitment, anything's negotiable.

Interest-based bargaining

1. Prepare — and be clear on constraints and points of flexibility.

2. Bargain over how to bargain to establish the ground rules.

3. Open with a question to determine common and competing interests.

4. Focus interests using informed experts to generate the best possible range of solutions.

5. Establish feedback mechanisms to evaluate how terms of the deal are being enforced.