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310-312: Traps and Pitfalls

Program 310: Traps and Pitfalls to be Wary of During Bargaining Highlights: There are ten traps and pitfalls to be wary of: Building and protecting your power base against erosion; Dealing with your own side and the other side; Adequate preparation; Bluffing; Impulses to protect the relationship; Modifying the contract language by oral understandings; Trapping yourself when making proposals; Fact finding and inability to pay assertions; Statistics; and Hidden agendas. Program 311: How to Successfully Make Proposals Highlights: How a proposal is formulated determines its acceptability. Don’t anticipate the other side’s negative response in wording your proposal. Don’t use confrontational language in your proposal. When countering a proposal, nudge the other side toward you. Blunt the other side’s enthusiasm. Overcome the mutual hazards of the proposal. Determine what is the kernel of the proposal. Re-polish the proposal to induce the other side to move. Do not mislead the other side so as to engender false hopes. Program 312: How to Extract Concessions from the Other Side Highlights: Compromise can turn disagreement into agreement. Compromise is a form of bartering. Try to extract concessions before giving anything away. Ask the other side what you will get out of its proposition. Use the Socratic Method to get the other side to come to you by realizing on its own the merits of your position. Never make concessions blindly. Never let your concessions come easily.

Format	Three member panel discussion and two lectures.
Length	52 Minutes
Moderator	310 – J. Richard Dempsey, S.J., Arbitrator, Prof. of Industrial Relations, Univ. of Detroit
Management’s View	310 – Daniel DePuydt, former Dir. of Ind. Relations, Sperry Vickers Corp.
Labor’s View	310 – Theodore Valerie, Dir. of Research and Education, American Postal Workers
Presenters	John Tadlock, Esq., General Counsel, Oil, Chemical and Atomic Workers Union James Smith, Industrial Relations Manager, Illinois Bell

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305-309: Entering into Collective Bargaining

Program 305: Entering into Collective Bargaining Highlights: The assumption is that you are well prepared and aware of the personalities and needs of the other side. Apply psychological conditioning to make the other side accept your proposals. Take the initiative; undermine the other side’s initiatives. Begin with minor issues first to foster an air of agreement; purge unattainable demands; and even if you are willing to concede an issue, try to get a concession from the other side for it anyway. Program 306: Bargaining to Wrap-up Agreement Highlights: The Issues: Non-economic issues are dealt with individually. Economic issues are usually dealt with on a package basis and often control the final agreement. Strategies During Bargaining: Once given, concessions are generally irretrievable. Keep the costs of the agreement terms constantly in mind. Strategies at the Eleventh-Hour: Float an offer to see what happens, while framing ultimatums in inferential terms. Induce settlement by alternating between the “carrot and the lash”. Program 307: How to Use Mediation Highlights: The Parties are the masters of their destiny. The FMCS mediator seeks to attain settlement, per se. The Parties seek settlement to their own advantage. How to Use the Mediator: Know the mediator and campaign in your favor. Be aware of innovative paths suggested by the mediator. Use the mediator as a buffer, “trial-ballooner”, and artful proposer. Program 308: How to Face and Deal with Rejection Highlights: An agreement is not an Agreement until it is ratified. Poor timing can be deadly with respect to rank-and-file attitudes. Overcome deadlock by re-wording proposals without changing the content, pursuing a new approach, and offering trial solutions. Program 309: How to Prevail in Collective Bargaining Highlights: Concentrate on how to proceed in order to achieve your goals. Be prepared to extol the virtues of your position. Listen to and understand the position of the other side. The Three Attributes of Bargaining: Climate, Pace and Approach. Work to dampen the other side’s expectancies. Change demeanor to unsettle the other side. Argue harmful effects of the other side’s proposals. Counter with better solutions.

Format	5 lectures.
Length	51 Minutes
Presenters	James Conway, .International Vice President, District 6, IBEW Richard McCracken, former V.P. of Industrial Relations, American Motors Corp. Stuart Wright, Vice President for Industrial Relations, Kysor Industrial Corp. John Schreier, former Director of Region 11, AFL-CIO Robert Carton, Manager of Employee Relations, Iowa-Illinois Gas & Electric Co.

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301-304: Preparing for Collective Bargaining

Program 301: Basic Orientation to Collective Bargaining Highlights: When negotiation breaks down was the impasse avoidable? Were the best positions forwarded? Power conserved is power maintained, power expended is power dissipated. The strike or lock-out is a test of economics. Power to endure a stoppage elicits respect from the other side. The Test of Power should involve irreconcilable differences with survival rights at issue. Be prepared to endure the rigors of the Test of Power. Keep attention attuned to whether the operation can continue without the bargaining unit. Program 302: Considerations Prefatory to Bargaining Highlights: The desire is to change the position of the other side to one’s own position. An endurable solution is achieved through compromise. Initiatives are the keys that unlock favorable compromise. Tentative understandings ordinarily will remain. The chief negotiator should be the principal spokesman. The chief negotiator should be cloaked with an image of limited authority. The kinetic force to compromise is the integrity, competency and credibility of the chief negotiator. Program 303: Overview of the Labor Agreement Highlights: Agreements are frequently arrived at under high pressure. It is often difficult to remove bad language. Watch for errors made in haste; “Weasel words” such as “may” and “normally” are imprecise and invite later testing. Any provision in the contract can become a “bone of contention”. A careful review of each of the major clauses should be undertaken. Program 304: Preparing for Collective Bargaining Highlights: Preparation begins when the prior contract is negotiated. The language should be alertly administered. Consider past practice and disciplinary procedure. Accumulate information on an on-going basis. Watch COLA progressions and industry settlements. Record costs of production, prices and total labor costs, the seniority list, and job descriptions. Preparation includes the quid pro quo for your proposals.

Format	Four lectures.
Length	50 Minutes
Presenters	Robert Johnson, former President of Michigan Council 25, AFSCME William Casstevens, National Secretary-Treasurer, former Director Region 2, UAW Wayne Eifler, Director of the International Assoc. of Machinists, District 116 Harry Lester, Director of District 29, Steelworkers J. Richard Dempsey, S.J., Arbitrator, Professor of Industrial Relations, University of Detroit Raymond Shetterly, former Director of the Arbitration Services Department, UAW

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208: Actual, Live Labor Arbitration Hearing

Highlights: The Company went forward with its opening statement. The grievant was a supervisor and on the executive board of the Union. Each month he attended Union meetings without punching out nor punching in when he returned. The Union reserved making an opening statement. The Company thereupon put forward its main case. The Company called J. Sedor, manager of labor relations, who testified employees were not permitted to work off the clock. After an investigation, the grievant was fired. The Union cross-examined, asking of the propriety of the notices given the grievant; and of no published rule regarding procedure to go to Union meetings. The Company called R. Carter, store manager. Mr. Carter said each department head could allot hours. The Union cross-examined Mr. Carter, who stated some workers were suspended for time card violations. The Company rested. The Union put forward its main case, waiving its opening statement. The Union called the grievant, who stated the assistant store manager knew he was at Union meetings, and that he made up any Union meeting time by working off the clock. The Company cross-examined the grievant, who admitted his actions were an error in judgment. The hearing thereupon closed with the Parties agreeing to submit post-hearing briefs. The Arbitrator’s Award denying the grievance is reproduced in the Guidebook.

Format	An actual labor arbitration recorded live as it transpired. The arbitrator’s award denying the grievance is reproduced in the guidebook.
Length	58 Minutes
The Parties	Chatham Supermarkets, Inc. represented by attorney J. Shepherd vs. Amalgamated Meatcutters, Local 539 represented by attorney T. Iorio
Arbitrator	M. David Keefe, Founder of LMDSI
Issue	Protested discharge of union executive board member for alleged time card violations.

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207: Legal Principles Underlying Arbitration; Raising Objections and Admissibility…

Highlights: Lecture by Mr. St. Antoine: Under Taft-Hartley (1947), federal courts can enforce labor agreements. In 1960 under the “Steelworkers Trilogy”, the Supreme Court held that the arbitrator is uniquely qualified. Under the Norris-LaGuardia Act (1932) courts are given limited authority to order injunctions in labor matters. The NLRB usually defers a claim until a pending arbitration has been completed, and it will honor the award; the EEOC and the courts give the award “great weight”, but are not bound by it. Lecture by Mr. Sembower: Causes for objections arise when the other side brings forward testimony inappropriate to the hearing. Arbitrators often accept evidence “for what it is worth.” Hearsay rules used in arbitration are more relaxed than those used in the courts. Where a witness reads from a document, that document is subject to the scrutiny of the other side. Calling a witness from the other side may be dangerous unless called as a hostile witness.

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206: Conducting Cross-Examination of Witnesses

Highlights: Lecture by Mr. Sachs: Cross-Examination occurs after the other side has used the witness to enter their proofs. Cross-Examination is used to get admissions favorable to your case and discredit testimony unfavorable to your case. Be methodical, but not over zealous. Cross-Examination favors leading the witness. Phrase questions so that they require yes or no answers. Don’t ask questions unless you know what the answer will be. Lecture by Mr. Saxton: Cross-Examination can be especially useful to damage a witness when documents are available to contradict the testimony on Direct. Try to anticipate what witnesses the other side will call, and make a skeletal list of questions for each. Ask friendly questions at first to get the witness off guard. As for your own witnesses, prepare them for cross-examination by telling them what to expect.

Format	Two lectures
Length	56 Minutes
Management’s View	William Saxton, Esq., Butzel, Long, Gust, Klein & Van Zile, P.C.
Labor’s View	Theodore Sachs, Esq., Sachs, Nunn, Kates, Kadushin, O’Hare, et al, P.C.

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205: Conducting Direct Examination of Witnesses

Highlights: Part I: Kelsey-Hayes and the UAW have formed a joint partnership to help troubled employees. Traditional progressive discipline does not cure the root of the problem causing infractions. The program involves a Center for Counseling and Guidance which functions much like a medical department. The theory behind Union-Management substance abuse programs is the common goal of helping the troubled employee. Part II: To be effective, rules should not be drafted restrictively. For example, “possession of marijuana” is better than “smoking marijuana”. Evidence to support a charge of drunkenness can be based upon Management’s observations of impairment, odor, etc. An employee who reports for work and is sent home for being under the influence results in an unexcused absence. Drinking on premises is most serious, but is frequently burdened by evidentiary problems. Being intoxicated or “high” on drugs is frequently viewed as serious a matter as bringing firearms into the plant.

Format	Two lectures
Length	59 Minutes
Management’s View	William Saxton, Esq., Butzel, Long, Gust, Klein & Van Zile, P.C.
Labor’s View	Theodore Sachs, Esq., Sachs, Nunn, Kates, Kadushin, O’Hare, et al, P.C.

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204: Credibility of Witnesses

Highlights: Part I: Credibility as viewed by the Parties: Where a foreman and an employee scuffle and it is the foreman’s word against the employee’s with no other evidence, the arbitrator will use his life experience to gauge who is truthful. Nonetheless, the weight of arbitral opinion would favor the foreman. Credibility Issues as Perceived by the Advocates: Witness demeanor is not conclusive. Too much consistency can indicate testimony is rehearsed. Outside records can be used to attack credibility. Personal and institutional interests should be considered. Part II: Credibility as viewed by the Arbitrator: Credibility is more detection of an honestly believed distortion. Demeanor is unreliable. Forthright testimony is more credible than evasive. Consistency with earlier statements is indicative. Credibility Techniques Used by Arbitrators: “Inherent Probability” is used where two witnesses give differing accounts, but there is agreement at junctures. Perceiving the interest of the witness. Using intuition emanating from the life experience.

Format	Part I is a three member panel discussion; Part II is a dialog
Length	57 Minutes
Moderator	Richard Mittenthal, Labor Arbitrator, past Pres., National Academy of Arbitrators
Management’s View	James Tobin, Esq., Miller, Canfield, Paddock & Stone
Labor’s View	Bruce Miller, Esq., Miller, Cohen, Martens & Ice, P.C.
Other Experts	M. David Keefe, Labor Arbitrator, Founder of LMDSI Richard Mittenthal (supra)

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203: Persuading the Arbitrator

Highlights: The Pre-Hearing Stage: Know your own case and your opponent’s case as best you are able. Carefully select an arbitrator having knowledge in the area of the dispute. Carefully screen potential witnesses for maximum credibility. Develop a theory of your case, all preparation should be guided by it. Analyze all documents that may be used as exhibits thoroughly. The Hearing Stage: The arbitrator is looking for an orientation as to the fundamental issues at the outset of the hearing. The opening statement is a critical tool. The sequence of the testimony is important. Consider a witness sequestration request. Begin with a persuasive witness; end with a dramatic one.

Format	Three member panel discussion
Length	61 Minutes
Moderator	Rolf Valtin, Labor Arbitrator, former President, National Academy of Arbitrators
Management’s View	William Saxton, Esq., Butzel, Long, Gust, Klein & Van Zile, P.C.
Labor’s View	Theodore Sachs, Esq., Sachs, Nunn, Kates, Kadushin, O’Hare, et al, P.C.

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202: Procedural Problems in Case Presentation

Highlights: Documents: The witness may want to use his/her own notes. Depositions have the problems of expense and delay. An affidavit is usually accepted “for what it is worth.” Authenticity should be established by witness testimony. Pictorial materials can frequently be very helpful. Witnesses: The Federal Arbitration Act allows the arbitrator to issue a subpoena, which is enforceable through the courts. Testimony can’t be forced, but silence can be an inference. An expert is permitted to give opinion testimony. Admissibility: The issue of materiality and relevancy will usually be decided by the arbitrator. In situations of hearsay testimony, it is important to object. Standard of Proof: The standard of proof is preponderance of the evidence. In cases of discharge, the standard of proof is frequently advocated by the Union to be beyond reasonable doubt.

Format	Three member panel discussion
Length	58 Minutes
Moderator	Theodore St. Antoine, Labor Arbitrator, former Dean, U. of Michigan Law School
Management’s View	James Tracy, Esq., Dykema Gossett
Labor’s View	Gordon Gregory, Esq., Gregory, Moore, Jeakle & Heinen