IMPASSE CRACKERS

What’s an impasse cracker?  It is one of those tactics seasoned negotiators pull out when bargaining seems hopelessly deadlocked to create an agreement.  FEDSMILL.com has listed ten of our favorites for you to consider and use.

Think back to a tough negotiation you went through; focus particularly on the last few hours.  The parties had probably tossed several rounds of counter-proposals at one another over weeks of bargaining, neither side was moving significantly, folks were angry, and the only option seemed to be to turn the dispute over to the impasse neutral to make the decision for the parties.  You weren’t sure whether the other side was as worried as you about what could be lost or were they delighted to be rolling the dice for a chance to win big with a proposal that could really hurt you.  

Experienced negotiators recognize that moment as the time to try one last idea to get a deal.  Typically, those ideas look like one of the following six ways of cracking an impasse.

PILOT OR TEST—  Management wants to implement something big now and the union does not.  So, consider implementing a pilot; that enables management to at least show that the change is underway.   Suggest that the change goes into effect for 90, 180 or even 365 days in a limited portion of the unit; data be generated throughout the pilot that both parties get; and that the union gets to reopen negotiations if management wants to expand the pilot at its conclusion.

If you can’t sell management on implementing the change for only a portion of the unit, then get the right to reopen negotiations after a short period of time.  If management will not agree to a reopener after a set number of days, tie the reopener to the achievement of milestones.  For example, if management alleges that the change will be saving employees one hour a day within three months, propose that you can reopen if that does not happen after 90 days. Or propose that the change be suspended if it is not meeting milestones.

SIMULATION—  Think about a simulation if the change can be implemented alongside the current practice without impacting the employee.  For example, if management wants to implement a new appraisal system, propose that it can do so but must continue the old one as well and at the end of the appraisal year the parties will examine the results.  Armed with better data they will bargain once again before final implementation and replacement of the old practice.  The data also may enable you to show that the change is not worth the effort and cost—or that it is actually costing more than it saves. That sets the union up to whistleblow or to attract media attention.

CONDUCT AN AUDIT—  Let management implement in exchange for lots of data about how the change works and its impact.  The odds are that if the change is examined closely you will find aspects about which management never gave the union advanced specific notice.  That enables you to file a ULP charge and seek to undo the change through a status quo ante order.

DANGLE A DIFFERENT DEAL—  Step outside the scope of the issues you have been discussing and propose that the union will accept management’s offer on the details of the proposed change, but demand something in return—even if it is totally unrelated.  You cannot insist to impasse on a concession in an unrelated area, but you can “dangle the opportunity for a voluntary deal” at any time.  And never let management forget that the union has the right to initiate a mid-term change proposal just like it does. Toss in an example of a demand or two you are on the edge of initiating.

TRUST BUT INSURE—  If management orally agrees to do something, but can’t put that in the formal contract, suggest that it rewrite the proposed notice of the change to include it as an aspect of management’s proposal.  Once management commits the details of a proposed change to writing and you permit implementation, it cannot change the terms of what it proposed until it renegotiates with you.  Or, suggest that management send you an e-mail with its pledge to do the thing it cannot put into the formal agreement. 

If the problem is that management says it will do something, but that it just can’t put it in writing anywhere, think about accepting management’s oral commitment in return for a letter that you ask it to trust you not to release. The letter can describe the thing management says it cannot put in writing or it can describe some unrelated benefit that would be put into effect upon demand by the union. For example, suppose a manager asks you to trust him to run his proposed credit hour system so that employees can effectively have a 4-10 schedule, but refuses to put it in writing.  Counter with a demand for a letter from him.  It would specify that if the management proposed system does not produce a 4-10 schedule, the union can reopen negotiations to get a 4-10.  (If you are feeling particularly gutsy, ask for a letter that requires management to replace the agreed credit hour system with a 4-10 schedule upon request of the union.)  Or, this secret letter could even say that the union will be allowed two more full-time representatives at the request of the union president.  If the manager wants you to trust him to do something, it is only fitting that he trust you not to release the letter.

Just as you can offer management a deal if it gives the union something that is unrelated to their proposed change, you can also offer to give them an unrelated concession on something they have wanted in return for a concession on the original proposed change.

SPEED LITIGATE—  If you can’t get everything you want to soften the impact of the change, propose a quick, inexpensive way to resolve grievances you expect from the change.  Also toss in guarantees of substantial remedies.  For example, if management wants to change from a five-level to four-level evaluation system and you cannot get all the substantive impact protections you want, think procedural.  Propose that an employee’s rating under the new system be stayed if she grieves and that the agency pay the entire cost of an arbitrator to deal with first year evaluation disputes under the new system.  Offer an expedited arbitration process and the presumption of an increased rating should the arbitrator find management violated the contract.

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Never underestimate what you can get from the other side once it sees you are serious enough to take the dispute all the way through impasse—even though the odds of you winning are small.  By initiating impasse, management knows that not only does it have at least some risk of losing more than it wants to, but that its plans will be delayed for many more months until the Panel finishes its work and agency head approval is provided.  That is a deal-making moment.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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