Category: Negotiation

BUSTING POLICE UNIONS: NOT A PANACEA FOR REFORM

Less than a month ago, police unions sat, with comfort and arrogance, atop the power pyramid of this country’s labor movement.  Through campaign contributions and endorsements, they curried favor with the politicians who legislate and negotiate their working conditions.  They won job protections most private sector union members could only dream of.

Then, in the eight minutes and 46 seconds it took Minneapolis police to kill George Floyd, all that leverage and power went poof. It may have been the quickest power reversal in labor history. 

Calling for profound structural changes in policing, Minneapolis Mayor Jacob Frey said the first step is to deny police officers the right to bargain collectively.  Black Lives Matter and at least one national labor union have called on the AFL-CIO to kick all police unions out of the country’s labor federation. Scores of progressive commentators have jumped on this binary bandwagon, insisting on the elimination of cop unions (here, here and here). 

I will argue here that the choice is not binary, and that there are far better fixes for this mess than to deny collective bargaining rights to the 800,000 workers – including 175,000 people of color – who police the streets of this country.

Negotiating over employment terms – things like pay, vacation, insurance, discipline and a grievance procedure – is hardly the source of our policing problem. Collective bargaining is content neutral; it is a process, not a result. The content of the agreement produced by that process is largely determined by how much power each side has. 

Mayor Frey’s frustrations are understandable.  Minneapolis’ police union is led by a macho, right wing zealot whose resignation has been demanded by state and national labor leaders.  (Unfortunately, democracy – in a union or a country – is no guarantee that the elected leader won’t be an idiot.) Yet, Frey was being irresponsible and disingenuous when he said collective bargaining had to be abolished in order to achieve meaningful police reform. He, or someone on the city’s behalf, agreed to accept a contract he now says was a bad deal. 

So Mr. Mayor, instead of burning down the union hall, negotiate a better contract.  The power dynamics couldn’t be better for him, and for other cities that want to make it easier to rein in errant cops. A month ago, that wasn’t the case.  The power of police unions flowed from law enforcement’s generally high police favorability ratings. That, in turn, placed a high value on police union endorsements from public officials involved in negotiating contracts and writing laws.  That meant powerful leverage for police unions.

And they used that power well.  Discipline language in police contracts (here and here) goes far beyond the basic standard of fairness and due process used in most private sector labor agreements. For example, many police contracts purge prior discipline from an officer’s record. That means an arbitrator deciding whether to uphold discipline for excessive force will be barred from giving any weight to prior acts of brutality. Other provisions require cops accused of misconduct to be given days or weeks to prepare for an internal investigative interview.  Some contracts prohibit a civilian review board from meting out punishment, and others require police management to complete an officer’s investigation within a defined time period. Since an arbitrator’s job is to enforce the contract, many have overturned discharges on the basis that contractual disciplinary procedures were not followed.

In the three weeks since George Floyd’s murder, the pendulum has swung far and wide, from police union power, to a national consensus favoring massive structural changes in policing.  Polling shows that a substantial majority of Americans support recent protests and want meaningful police reform.  This overwhelming change in public opinion has pulled even Senate Republicans out of their comfort zone. Almost overnight, they developed a sudden dim view of the choke hold and no-knock warrants.

Police union leaders are going through a similar death bed conversion by realigning their goals to comport with the diminution of their bargaining power. The three largest PD unions in California took out full-page newspaper ads this week calling for reducing the use of the force, more officer accountability and a rooting out of racist cops.  Washington, DC police union leaders signaled an interest in loosening some of the contractual restraints on management’s ability to discipline. The national president of the Fraternal Order of Police (FOP), the country’s largest police union, also expressed support for revising disciplinary rules.

The Supreme Court once referred to labor union contracts as “living documents,” meaning the parties can and should modify their agreements as conditions and circumstances change. There is no problem created by collective bargaining that can’t be fixed by more bargaining.  Calling for the abolition of police unions is a grotesque overreach.  More than 90 percent of most police contracts have nothing to do with the issues triggered by the murder of George Floyd.  They cover such matters as pay, clothing and equipment allowance, work schedules, vacations, holidays, sick leave, insurance benefits and drug and alcohol testing.  

The policing problem now before the country, of course, goes far beyond a few incorrigibly abusive officers. The “defund the police” rhetoric of Black Lives Matter, and others, speaks wisely to a need to completely reimagine the role of dealing with public safety.  Why would we want to break all of the police unions before doing the reimagining?  Wouldn’t it be better to involve them in helping to alter the paradigm so that whatever we call them – cops, public safety specialists, social workers, facilitators – they will have an ownership stake in the change?

There has never been a better time to rewrite police disciplinary rules. The old ones were products of a different era, if only weeks in the past.  The union power propelling those lopsided agreements has turned into a public mandate for deep structural police reform.  

As a retired union negotiator, I remember what it feels like to go to the bargaining  table with less power than you’d like.  I also know that the choice in those circumstances is clear:  Sacrifice the merely nice in order to hang on to the essential.  In this case, that means union concessions on disciplinary rules in exchange for the right to continue bargaining collectively. 

That would be a win for both sides, and for the rest of the country.

THE REAL ART OF THE DEAL: NEVER EMULATE TRUMP’S NEGOTIATING STYLE

If Donald Trump were a car, he could be immediately disposed of under the lemon laws of most states. Not only is he congenitally incapable of functioning as president, he sold himself to America on the blatantly fraudulent claim that he would be the best deal maker to ever occupy the White House. As it turns out, this guy couldn’t negotiate his way out of a paper bag.

Forget about The Art of the Deal, Trump’s ghostwritten ode to his delusional prowess as a master negotiator.  With this one-trick pony, it’s all about the art of the threat. His singular approach to conflict resolution is to fire off a volley of threats at his opponents, like something out of the Godfather movies.  The only difference is that most Mafia dons are adept strategists. Trump is not.  He simply huffs and puffs and indiscriminately hurls threats with all of the dexterity of an angry drunk denied bar service at last call. 

Rarely a day goes by without this president lobbing a new threat at a perceived adversary.  He’s threated both North Korea and Iran with economic sanctions and/or nuclear annihilation but is nowhere close to an agreement with either country.  He threatened immigrants with an array of Draconian retributions for entering the country illegally and they have continued to storm the borders in record-breaking numbers.  He threated Mexico with all sorts of mayhem if didn’t pay for the wall, which it steadfastly refuses to do.  After first threatening to close the Mexican border as leverage to get that country to stop the flow of immigrants, he backed away and threatened to slap tariffs on imported goods from our neighbor. Then he dropped the tariff threat in exchange for an agreement that merely codified the status quo. For all of his verbal fire and fury, he got nothing he didn’t already have.

The list, of course, goes on and on.  He threatened former FBI director James Comey with releasing tapes that didn’t exist. He threatened to:  end the NFL’s tax cuts;  impose a tax on European cars; cut off aid to countries he doesn’t like; stop health insurance payments for members of Congress until they pass an Obamacare replacement; pull NBC’s licenses because he doesn’t like their coverage of him. In some cases, he actually made good on his threats, like shutting down the government to get his border wall funding. None of these threats, executed or not, delivered the outcome Trump was looking for.  

He does, however, reap a valuable dividend: love and adoration from diehard supporters who worship their action hero president for having the alpha male fortitude to man-up and take on a political system they have grown to despise.  The more Trump threatens and bellows, the more his base loves him.  Yet, remove the smoke and mirrors from the Trumpian bargaining process and you will find nothing resembling a serious, effective negotiation. Just an agitated old man braying at the moon. 

Donald Trump is a cartoonish stereotype of what many people think of when they hear the word “negotiator”, an angry, red-faced, table-pounding blowhard barking demands and hurling insults at the other side. Nothing could be further from the truth. 

“The world’s best negotiators,” said Marty Latz, a well-respected conflict resolution trainer, “are also empathetic, as they deeply listen, understand and appreciate their counterparts’ needs and interests without necessarily agreeing with them.”  Trump, according to Latz, “has undermined (his) effectiveness for years with his lack of preparation, spontaneous gut-level moves, threats, name-calling, an adversarial win-lose approach, and an extremely aggressive and often mean-spirited tone.”

Of course Trump and his merry band of MAGA voters offer a far different narrative of the all-powerful deal maker, one that reflects illusions created by theater of the mind. Take North Korea, for example. The president would have us believe that his bellicose threats to destroy that country with the “fire and fury” of his nuclear button brought North Korean leader Kim Jong-un to his knees, begging for a negotiated peace.  With grandiose visions of the Nobel Peace Prize dancing in his head, Trump has spent the past two years in repeated photo ops with Kim.  To hear the Donald tell it, he is now “in love” with Kim and the two are endowed with a “very special relationship” that, of course, ensued directly from Trump’s threats to bomb Kim and his country into oblivion.  Just yesterday, Trump made front page news by becoming the first U.S. president to set foot in North Korea.  

Yet, we are not an inch closer to a deal ending North Korea’s nuclear capabilities than we were when Trump was threatening to blow the country up.  Kim may be a brutal, murdering dictator, but he, unlike our president, is an effective negotiator. Kim knows his opponent and he is giving him what he needs right now: political cover through the illusion of peace.  Without making a single concession, Kim has elevated his own status on the world stage. More amazingly, he has transformed his relationship with Trump from one of threatened annihilation to that of a bumbling bromance. 

A number of law school professors who specialize in conflict resolution have expressed concern that their students will be influenced by Trump’s approach to deal-making, which is pretty much the antithesis of everything they teach, namely listening, empathy, relationship building and problem solving.  Andrea Kupfer Schneider, director of the Dispute Resolution Program at Marquette University Law School, said she emphasizes to her students, that Trump’s objectives in a negotiation are aimed singularly at his political goals, not at the interests of his client, namely the American people. 

“Although the president might appear to be engaged in negotiating with a counterpart, his goal does not appear to be changing that particular counterpart’s mind,” she wrote. “Instead, his negotiation behavior is often calculated, not necessarily to result in successful negotiations, but to boost his political ratings.”

Remember those days, when America was truly great, and the president was seen as a role model for students?  They have been replaced with a new warning:  If you want to be an effective negotiator, pay no attention to Donald Trump. Alas, there is no art in his deals.

ODE TO A HERO WHO JUST HAPPENS TO BE MY WIFE

Melissa Nelson is retiring this week as director of collective bargaining for The NewsGuild-CWA, the union representing media employees and other workers. In the infamous words of Joe Biden – as cleansed by the AP – that’s a big f—ing deal. So big, in fact, that this space is giving a temporary pass to the inanity and profanity of national politics, in order to pay tribute to a genuine hero.

So as to avoid being Sean Hannityized, let me disclose a potential conflict of interest: I have a spousal relationship with Melissa. But I also spent 31 years working for the same union, and copiously followed her amazing journey, drawing more and more awe with every step she took. In other words, I’m an expert witness. This is my testimony:

When I met her, Melissa was an advertising artist at the Hearst paper in Albany, NY. The labor movement really needs to build a monument to the Hearst Corporation. If that outfit hadn’t paid its women artists considerably less than their male counterparts, the NewsGuild would be without one of its greatest legends. Worse, I would still be single. Fortunately, the injustice of pay inequity ignited a passion in Melissa that propelled her into the calling of union activism. It was an all-consuming tour of duty that went from rank-and-file agitator, to local president, to full-time Guild staffer in Philadelphia, to directing the national union’s collective bargaining operation in Washington, DC.

That last sentence, particularly for those who don’t know her, is opaquely encyclopedic. Every union has activists and staff. What Melissa brought to the table was a unique package of style, substance, class, and grace, all served with a special sauce of forceful and respectful advocacy.

Melissa Nelson teaches new Guild leaders about collective bargaining.

To me, Melissa’s breakout moment came about 25 years ago. This is when I knew for sure that she was destined to play a key leadership role in the union. It started as an ordinary exchange at the bargaining table. She was making a pitch for one of our proposals. A boorish, over-testosteroned management guy, accustomed to the centuries-old rooster game of one-upmanship through interruption, tried to cut her off. Melissa was in mid-sentence when he flashed a sneering smirk and said, “Well, that isn’t true . . . “ Without skipping a beat, Melissa leaned across the table to face her adversary. In a quiet, calm-but stern voice, she said, “No, no, no. Do not interrupt me. I wasn’t finished. You need to listen to what I am saying, and then it will be your turn to talk.”

I braced myself for a major explosion. I had verbally dueled with this troll many times and knew he was not easily quieted. There was a momentary silence, the two of them leaning deeply into their respective sides of the table, just staring at each other. Finally, the management guy spoke, using a tone that reflected a meekness and contrition I’d have sworn was not in him: “I’m sorry, Melissa, please continue.” Damn! I later asked the troll about the exchange. He called it a “flashback to elementary school”, adding that he almost said, “Yes, teacher.” It was an amazing moment.

The anecdote perfectly captures Melissa and her rare and immensely effective communication style, one that is firm, assertive and honest, yet delivered totally free of threat or hostility. The volume is low, the tone pleasant, and the verbiage tight and succinct. The result is a message laced with respect, thus inviting respect in return. When it comes to managing conflict, it doesn’t get much better than that.

Melissa has spent decades using that style to make life better for so many people: victims of sexual harassment, unequal pay, unjust discipline, discrimination and mistreatment; employees in search of better pay and working conditions, dignity and respect. Her voice, so carefully crafted in her estimable manner, has carried with it all the voices of the workers she represents.

But that’s not all, not by a long shot. Melissa’s real gift – her legacy – to this union is her uncanny ability to connect with members, local leaders and staff in a way that amps them up, makes them stronger, better, more confident. She has spent years perpetually plugged into the lives of Guild activists from coast to coast. She knows their strengths and weaknesses, the content of their contracts, their management’s every quirk and idiosyncrasy. She also knows the names and ages of their children, their family vacation plans and how their parents are doing. To her, leadership is, at its core, relational.

Somehow, without the use of a single algorithm, Melissa has spent the past decade using all of that instinctively processed data to guide, mentor and advise an entire national union, one person at a time. We’re in the middle of dinner, and someone from Kenosha calls in a panic over contract negotiations. Or a bankruptcy in Boston. Or more massive layoffs in Denver. Or the sale of the paper in Akron. And in each case, I smile with wonder and pride as Melissa calmly and confidently listens, reassures, offers needed information and counsel, and then guides the caller to land the plane safely. Each time that happens, the union grows a little stronger because the folks on the other end of those phone calls are learning and building confidence, secure in the knowledge that they are not alone.

This has not happened without taking a toll on Melissa. The stress has been enormous, and its chief cause has been the exponential increase in the demand for help, and an insufficient number of hours in a day to provide it. As a result, her voicemail and email inboxes are perpetually jammed by cries for help. How do you triage all that? Is a layoff more critical than a bankruptcy? Which do you take first, the pay cuts call or the pension freeze? This has been her life. And despite the stress, it has brought her enormous satisfaction from knowing that she has made a difference.

Through it all, Melissa never once unplugged – not from her phone, her email, or any other form of engagement. She is constitutionally incapable of disconnecting. She knew that most of the people reaching out to her had workloads every bit as hectic as her own. They were counting on her. There is no way she wouldn’t be there for them. That’s because Melissa saw her work, not as a job, but as part of a movement. For the movement to succeed, leaders need to keep on moving. And that’s just what she did. As a result, she can retire now fully assured that the movement she nourished with every ounce of energy she had will keep right on moving. After all, those movers learned from the best.

LEADERS WHO IGNORE PROCESS WILL END UP BEING TRUMPED

Donald Trump’s most crippling deficiency as president is his innate inability to understand process. His abject failure to even embrace the concept of process, let alone direct and nurture it, is the main reason for his subterranean poll numbers, a dismal legislative scorecard and a rapidly declining base.

Process is everything when it comes to effective organizational leadership. It’s how people interact, manage conflict, decide and work toward accomplishing shared goals. And therein lies the problem for this president. As the closest thing to a genuine solipsist to ever occupy the White House, the Donald is barely cognizant of other people, let alone able to direct productive interactions with them. He simply doesn’t do process.

Take the latest example: Trump brought crowds to their feet last year by characterizing undocumented immigrants as the scourge of the earth. He insisted that they all be deported and that a wall be built to keep them out. “Send Them Home!” and “Build the Wall!” were iconic chants at his rallies. (Here and here.) Once elected, Trump softened a bit on 800,000 young people who grew up in America after being illegally brought into the country as children. These are the “dreamers” who were saved from deportation by the Obama administration in 2012. Trump’s base spent the past eight months pushing him to pull that plug and send the dreamers packing. That’s exactly what he did two weeks ago. He, in effect, nullified Obama’s order, but gave the dreamers a six-month reprieve, allowing Congress to do what it has been unable to do for two decades: enact an immigration bill addressing the issue.

Then, just last week, Trump, over dinner with Democratic Congressional leaders, supposedly indicated he was ready to support a bill allowing the dreamers to remain in the country in exchange for some border security measures that would not include his infamous wall. And all hell broke loose. Red Trump hats are being torched by their disgruntled owners, one of whom tweeted, “Put a fork in Trump. He’s done.” Breitbart News, the ultraconservative website run by Trump’s former chief strategist Stephen Bannon, called the president “Amnesty Don.” Ann Coulter, a provocateur for all things very right of center and one of Trump’s most steadfast supporters, turned on a dime with this tweet: “At this point who DOESN’T want Trump impeached?”

The president was crushed by the reaction, and has seesawed back and forth on his position ever since, creating the most bipartisan confusion this town has seen since Alexander Haig contended he was in charge of the Regan White House. But Trump brought this turmoil on himself by paying no attention to process. This guy spent 18 months pumping up his xenophobic fan club about all those rotten drugged-up, thieving, raping illegals and now he’s telling them to love 800,000 of them and let them stay.

I learned quickly as a union rep that it was much easier to get a group of mistreated workers up the mountaintop of a contract campaign than it was to get them down again. In collective bargaining, as in politics, you get nowhere without a mobilized base. At the same time, you can accomplish nothing for that base without making a deal that falls short of your campaign rhetoric. Effective leadership means managing expectations and helping your troops slowly descend that mountain. It’s far more art than science, and it requires leaders to prepare folks for gains that are more incremental than revolutionary.

Barack Obama’s 2008 election was a seminal moment in American politics. Against significant odds, a black man promising hope and change was elected president. An enormous crowd gathered in Chicago, chanting “Yes We Can!” while waiting to hear from the president-elect. Obama, an astute student of process from his days as a community organizer, had this message for his cheering supporters: “There will be setbacks and false starts. There are many who won’t agree with every decision or policy I make as president. And we know the government can’t solve every problem.” Contrast that with this line from Trump’s acceptance speech at the Republican National Convention, “Nobody knows the system better than me, which is why I alone can fix it.”

The truth is that this president doesn’t understand the system at all. America is not a sole proprietorship where the owner calls all the shots. Sadly, that is all that Trump has ever known about process. That’s why he is exasperated with Congressional rules, and with votes that don’t go his way. He wants his campaign platform implemented by fiat. Every president does. Trump is the only one who actually believed it would happen. All his predecessors were frustrated by the time consuming process of governing, of listening and talking with others, having to know what buttons to push, when to come on strong and when to back off – the basic nitty-gritty of playing well with others. Yet, they persisted. That’s because they grasped the power of process.

Leaders who ignore process do so at their own peril. Take Lemuel Boulware, for example. As head of General Electric’s labor relations in the 1960s, Boulware decided to dispense with the normal rituals of contract negotiations. He saw no reason to engage in drawn-out meetings and an endless give-and-take. He opened – and closed – negotiations with what was seen then as a fairly generous offer and made it clear that the company would neither change nor discuss it, resulting in a very ugly strike. It also coined a new term in the lexicon of collective bargaining: “Boulwarism”, a take-it-or-leave it proposal that usurps process.

The superhero image of Donald Trump singlehandedly draining the swamp was obviously a successful campaign narrative. Like all superhero stories, it was pure fiction. This country’s founders, the people who actually did make America great, constructed a process, complete with three branches of elected and appointed players. Process is not always pretty, or fast, or easy. Neither is democracy. But it is far better than either Boulwarism or Trumpism.

TRUMP’S REAL ART OF THE DEAL: DON’T NEGOTIATE, BLOVIATE

One of the biggest boasts behind last fall’s election died suddenly last week. Now buried in the Republican Graveyard of Wishful Thinking is the congenitally defective assertion that Donald Trump is a master negotiator.

“There’s going to be health insurance for everybody,” the new president declared in January, insisting it will cost far less than it does now. Asked how Trump could be so confident of those claims, his resident sycophant, Sean Spicer, had a quick-but-ludicrous answer: “He knows how to negotiate great deals.”

Nothing is ever final in Washington, but hopefully the Republican healthcare debacle of 2017 has forever put an end to the utter foolishness that Donald Trump is a world class negotiator. The guy huffed and puffed his way through real estate sales, insulting, assaulting or suing anyone who got in his way. That’s not a skillset that translates into effective leadership on the world stage.

Yet, there is this lingering myth, a distorted caricature, of what an effective negotiator looks like, and the composite, unfortunately, bears a strong resemblance to guys like Trump: a loud, brash, boorish, bullying slug who pounds the table while lobbing loud threats and insults. The archetype represents an archaic bargaining style that was occasionally effective in limited circumstances involving one-shot transactions and no ongoing relationship. It has absolutely no application to resolving conflict with Congress or foreign leaders.

Here, thanks to Politico’s reporting, is all you have to know to conclude that President Donald J. Trump is a terrible negotiator: In a last ditch effort to change the minds of conservative House Republicans, Trump The Closer summoned the 30-some members of the Freedom Caucus to the Cabinet Room of the White House.

Although these folks had been a thorn in House Speaker Paul Ryan’s side, they liked Trump and were excited about the opportunity to get the president to make some changes in the healthcare bill in exchange for their support. They thought they could deal with him. After all, he knew how to negotiate. So they laid out their problems and sent some clear signals about what needed to be changed and why it mattered to them. And here is what the master negotiator told them: “Forget about the little shit. Let’s focus on the big picture here.” The “big picture”, Trump told them, was that the bill’s failure could imperil his reelection chances in 2020. Self-absorption might have served The Donald well in his mogul life, but it’s one of the worst traits a negotiator can bring to the table.

I don’t profess to be an expert on legislative negotiations but, over a career of more than 30 years, I helped bargain hundreds of contracts in the news industry. In order to get a deal, I had to know everything I could about the little shit. I wallowed in the little shit because somewhere in all that excrement was a key that would unlock the door to settlement. Obviously, I had to know what was important to our side, but I also needed to know management’s issues and what it needed in an agreement. That was the only route to a resolution that would have value for both sides.

Most negotiations are long and drawn out. Arguments are repeated ad nauseam, and it often appears that agreement will never be reached. There are, however, rare moments when the parties tire of the conflict and really want a deal. A good negotiator knows how to recognize those moments and seize them. Trump had that opportunity in the meeting with the Freedom Caucus and he totally blew it. Not only that, he blew it for the worst reason imaginable: he didn’t understand any of the issues. He acknowledged he was “not up on everything” in the bill. Hardly the mark of a master negotiator.

In his much touted book, “The Art of the Deal”, Trump offers this pearl of wisdom on his style of conflict resolution: “I aim very high, and then I just keep pushing and pushing and pushing to get what I’m after.” If he doesn’t get what he wants, he says he walks away and gets it someplace else. That might work for building casinos and hotels, but it’s a recipe for disaster in government. Trump views a negotiation as a zero-sum transaction, one that produces a winner and a loser. Virtually all of the academic literature on effective dispute resolution rejects that approach (here, here and here). Effective negotiating in an ongoing relationship – which is to say 95% of all negotiations – means doing the very things Trump disdains. For example: show respect for the other side; never lie; forget about an “amazing” deal so you can focus on getting one that works for all sides; try to overcome mistrust; find a way to let everyone win a little; and help your adversary save face if they back down on an issue.

Obviously, those of us appalled at the prospect of 24 million Americans losing health insurance, can find easy solace in the president’s incompetence as a negotiator. Sadly, the feeling won’t last long. If this guy can’t find common ground with members of his own party, what happens when he takes on Iran, North Korea, China , or other hot spots? With a bag of tricks consisting of aiming high, pushing and walking out when you don’t get your way, don’t count on world peace anytime soon.