Collective Bargaining 3: Effective Negotiations, Background Information
Preparation of demands (changes to the CBA)
There are two aspects of the process of preparing bargaining demands or proposals. One is the question of what to propose, and the other is a matter of how to phrase those proposals. The substance of the proposals should reflect a balance between economic and non-economic issues and should be a realistic reflection of the broad concerns of the membership. Unrealistic dreams should be avoided as should proposals that offer no real benefit to the membership or the union as an organization. Contradictory goals of different groups of members should be resolved prior to the preparation of proposals. If a union has to make a choice between potentially conflicting interests, it should do so before entering into negotiations with the company.
The starting point for the drafting of a package of bargaining proposals is the old agreement, if there is one. In the negotiation of second and subsequent contracts, there will be many parts of the old agreement that will not be changed. A general proposal to leave those provisions of the old contract unchanged should be prepared.
For areas of the contract where changes are anticipated, the specific problems experienced under the old language should be identified. In some cases, problems arise over poor drafting of the old language. In other situations, the language is clear, but the union is dissatisfied with the provision as written. In either case, the "mischief rule" of contract interpretation provides guidance on how to draft new language. Under the mischief rule, it is presumed that all language is included in a contract for a reason. Some problem existed that lead to the language in question. The language was a proposed solution for that problem. The goal of drafting language is to curb the mischief and advance the remedy agreed to by the parties. If the union has a clear understanding of the problem that needs to be addressed and a clear solution for that problem, the proposal should be developed as a succinct statement of the solution.
Other rules of contract interpretation are also helpful in drafting proposed language. Careful drafting of proposals should avoid ambiguous language. Ambiguous language is language than can be read in more than one way. Draft language should be read as cynically as possible. If there is any way that a proposal could be read in a manner other than that which is intended by the union, it should be rewritten.
Unlike ambiguous provisions, the language of collective bargaining agreements is often vague by design. The parties negotiate broad provisions designed to address problems that may arise in different contexts. If language is unduly vague, drafting of proposals should be directed at the goal of providing more specificity, particularly when specific applications of that language has created problems. Particularly during early phases of negotiations, economic proposals are kept vague by design. It is customary not to put a dollar figure on the first submission of economic proposals. Because economic terms will likely be negotiated in late bargaining session, initial proposals often call for the "payment of a substantial wage increase" rather than a specific amount. This, of course, is subject to the custom and traditions of the parties.