The Negotiation Process

One of the things that became clear in the discussions following the negotiation of the recent CTA is that the membership needs more information on exactly how negotiations are conducted. Here are some of the questions asked...

Why can't we get X, or make Y happen?
Negotiation is the development of mutually agreeable terms for member engagement and related activities. We do not have the ability to go into negotiation and demand anything, any more than the other party does. The other party is not compelled to give us whatever we ask for, and neither are we compelled to give them whatever they ask for.

Sometimes, achieving a goal is just not possible, or only partially possible, or only possible on terms that we believe the members would find unacceptable. This is almost never a situation of mere mule-headedness or obstruction on either side. Not that this is news to anyone, but theatre negotiations invariably take place in a context of constrained resources – every new benefit for one party has a tangible cost for the other.

If that's the case, how can we expect to make any improvements at all?
Negotiation is a delicate balance of give and get. Remember that both sides are seeking improvement, and most of our agreements are mature agreements. That means there are basically no aspects of the contractual relationship that have not been mapped out already, wall to wall.

In that context, both parties need to be willing to give something in order to get something. Our biggest negotiation stalemates over the years have been where gets were expected by one party or the other, with no willingness to give. There is never a get without a corresponding give.

What, never?!
Well, hardly ever. Sometimes there is a negotiation topic for which neither party is seeking any particular advance, beyond a general improvement in how the whole thing works. The recent CTA revision in dealing with new and old media is a great example of that.

We agreed to fix this by basically dumping the utensil drawer out on the kitchen table and working our way through it to find the things we all agreed were needed and that worked, and reorganising them so they were more accessible. That process took quite a while, but in the end it involved very little "give" for either side in order for both sides to "get" a more workable agreement.

When there is a major new proposal on the table, why can't we have a national discussion and vote on it before negotiations begin?
The goals for negotiation begin with member input accumulated over the term of the existing agreement, so members are definitely in on the ground floor. However, from that point on, it's all up to the negotiation team (including staff and members) for several reasons.

The first is that, in most cases, a concrete proposal doesn't even exist before negotiation begins. Although we may have a clear idea regarding a goal we would like to achieve, such as greater employment opportunity for members, the actual mechanics of getting there are far from settled. Major proposals developed in detail in advance never make it out the other side of negotiation without significant changes being made.

That being the case, if we get membership approval in advance, we're effectively locked in. Once members pre-approve Proposal X, any change to that equals Not Proposal X, and is by definition unapproved. We can't realistically keep going back to a few thousand members every week or so for three months for re-approval on Proposal X-1, X-2, X-3, etc. as they get worked out.

Also, any proposal approved by the membership in advance is essentially public knowledge. That means that we go into negotiations with only one result we are able to contemplate, and that do or die proposal is completely visible to our negotiation partner.

Negotiations are not just about trading A for B; they are also about problem-solving for both parties. If our negotiation team has no latitude to innovate, no ability to work things out, then there is not much point in going into something called "negotiations."

Why do the members have to ratify the agreement as a whole? Why can't we ratify it in pieces, so we can approve what we like and reject what we don't?
Simply put, that's not how negotiations work. Anywhere. The final product of negotiations is an intricate balance of costs and benefits for both sides.

Consider the matter in any other negotiation context with which you may have experience. Think about purchasing a house. How would it work if the buyer could unilaterally say "no" to the high price, "yes" to including the spiffy new appliances, "yes" to re-shingling the roof, etc., and the seller had to accept whatever terms the buyer chose? Ok… I guess we can dream, but that's not how negotiation works.

The final product of negotiation is a single document, representing all the points of consensus on change to the existing scale agreement. We draw all amendments to the members' attention, with explanations for each, so that no aspect of is it buried or hidden. There are always some gives on each side, but both parties expect equal value gets for all of them. We have to ratify it as a whole as do our negotiation partners, and neither gets to cherry-pick in ratification.

Agreement Ratification Process

The root of the current ratification practice of negotiated agreements can be found in Equity's bylaws, which stipulate that changes to a negotiated scale agreement must be put out for ratification by the members who have worked under the expiring agreement.

This approach has been in place for many years, and it predates anyone currently on Council or staff. It was already in place when the bylaws were compiled into their current format in 1988, and was ratified by a referendum of the whole membership on January 17, 1989. Since then, it has received regular attention by Council, since no year goes by without the ratification of one or another of our negotiated agreements.

In 1996, the bylaw was modified to allow the ratification pool to be expanded, first at the discretion of Council, and then at the discretion of the Executive Director. The change was intended to allow members who would imminently be represented by an agreement, such as fight directors under the CTA, to vote on it. In the 30 or so ratification votes since then, Council has faced that situation only twice.

Here is what I understand to be the rationale behind the current process:

• The existing bylaw is designed to provide equal ratification rules across all of our negotiated scale agreements. Creating special rules for the CTA alone (as proposed by some) would suggest that some agreements are "more equal" than others.
• The list of members who have worked under any given agreement in its most recent incarnation is relatively stable, whereas the list of members who used to work under the agreement expands with each passing year. Costs would escalate endlessly for each successive ratification vote, were we to expand the pool along with the list.
• The purpose of the ratification vote is to determine if, on balance, the membership working under the agreement finds the proposed changes to current rules to be acceptable. Since the agreement changes with each round of negotiation, the members in the best position to compare the old and the new rules are those who have most recently worked under them. Importantly, the negotiations are also driven by input coming exclusively from those with current work experience.
• In the 2012 CTA ratification, for instance, the pool will include roughly 2700 members, which gives a margin of error of somewhere around ±2%, providing a very high degree of confidence in the results. It’s worth noting that, historically, these votes tend to pass by enormous margins (85-95%). Even the most recent CTA, which was quite contentious, passed by 74%, well within the margin of error.

In summary, the current approach exists to ensure: equal rights across all negotiated agreements, a ratification processes within our financial resources, a decision made by members with most current knowledge and who largely shaped the negotiations, and a ratification pool providing for a very small margin of error.

This is not to say that the bylaws can’t change going forward to formally redefine the ratification pool to something larger, and a request has recently gone in to do that. Council will be examining this in the new term.