Facing a Union Strike Notice: How Should We Navigate Negotiations Amidst Pandemic Challenges?

Negotiations with the Union

We have entered into negotiations with the Union after the period of the previous LTA was completed, and the Union had submitted CoD. We did not initiate talks as the Management was busy ensuring the safety of workmen during the pandemic. After a lot of push from the Union, we agreed to initiate talks and also submitted our Management requirements.

Challenges in the Negotiation Process

The Union is unwilling to discuss Management requirements, saying this is a new practice. We are insistent that Management Requirements are as much the right of the Management as is the CoD of the Union. We have also appealed to the Union to cooperate during the pandemic due to dwindling orders and the repeal of some incentives by the Government recently, impacting the company's profits by more than 40%. The Union was contemplating a strike notice. We had earlier requested the Labour Dept. to conciliate on the matter last week.

Current Situation and Request for Advice

The Union is going ahead with the notice to strike. The Labour Dept. had already directed the Union to appear in 1-2 days at the conciliation meeting.

Wanted your views on the matter and how to resolve the issue and the action to be taken? We have reiterated to the Union that there can be no preconditions to talks, and we will discuss every single point.

I would like to quote here the reply of Samuel Gompers, the great President of the American Federation of Labor, to a reporter's question during the first quarter of the last century: "What does the AFL stand for?" Gompers replied succinctly: "MORE!" That is the objective and purpose of any trade union. It does not mean that unionists are impractical or adamant. They possess as much native intelligence and knowledge of the industry's downsides as the management does. Everyone knows the logic behind the saying, "If you aim at the star, then you'll reach at least your grandma's nose." Therefore, let the negotiating team of the management first have the mindset that the union is right with their demands and the management is right with their counter-demands, whereas the situation is not right.

In any negotiation, particularly in a critical situation, the BATNA (Best Alternative to a Negotiated Agreement) - WATNA (Worst Alternative to a Negotiated Agreement) Analysis is more important to choose the best options from either side to create a win-win result. Since the matter is before the Conciliation Officer, I hope that he would guide the parties appropriately to avoid any stalemate.

You are right and justified in the stand taken. Now that the conciliation has started, any strike will be illegal with consequent actions. There are various methods to end the stalemate situation. As management, be prepared to come up with multiple alternatives between BATNA and WATNA, as pointed out by the learned Umakanthan Sir.

Dear colleague, your current situation is that the Union has served a COD. Management has also presented its demands, but negotiations have reached a deadlock. The union is considering going on strike (it's not clear if a notice has been served), and the Government Labour machinery has called parties for discussion.

I would like to add to what Mr. Umakanthan has advised. The positive point I see emerging is that if the matter is admitted to Conciliation, then the strike will be prohibited.

Therefore, before the Labour Conciliation officer, your goal should be to get management's demands (generally referred to as Management's Expectations) admitted in Conciliation and to initiate the proceedings early so that the threat of a strike is postponed until the proceedings are pending.

Due to the pandemic weakening the financial power of the company, you should continue to seek third-party interventions - Conciliation/Adjudication in this matter.

Simultaneously, maintain informal dialogue with the union committee members for a possible breakthrough.

Regards, Vinayak Nagarkar HR and Employee Relations Consultant

Please ensure that the conciliation starts in this matter quickly so that the union refrains from going on strike. Management demands are a common factor in negotiations today; therefore, refusal to negotiate on this ground will not be accepted by the authorities. Also, the matter in conciliation or mediation by the Authority will ensure negotiations proceed in a legal manner. Finally, if there is a checkmate, the demands will be referred to the Tribunal for adjudication so we can buy time in these tough times. As far as the IR issue is concerned, you can examine if an interim raise is possible until a final settlement is reached, so that the union has a reason not to strike.

These types of issues are to be taken seriously, and any correspondence or stand has to be taken after consultation with a Labour Law expert. You may consult any expert of your choice. I am also consulting many employers on these types of issues professionally.

Further to this thread, the Union has given a notice for a strike. We had approached JCL, but the Union has refused to meet with JCL after three rounds. Honestly, the Union's demands are unjustified (although they have come down from a 5x increase in salaries to now almost 2x of the current salary despite multiple rounds of persuasion).

Ideas and Suggestions

a) To prevent the strike
b) Strategies to quickly highlight to the court to declare the strike unjustified.

We also apprehend some disturbance if we attempt to run with managers and non-unionized staff.

If your establishment is a public utility service, upon reference of the dispute for adjudication, the State Government can issue orders prohibiting the strike as per the amended provision of Section 10-B of the IDA, 1947.

Our unit was a public utility service, being notified as such (100% EOU) until 2018. I do not think the government has re-notified it in TN. Is there any part of the unit that can be declared as a public utility on grounds of safety? Any further advice on how to approach the court or government regarding the justifiability of demands and declare the strike illegal would be helpful. We have been continuously negotiating but do not see any progress as the Union introduces a new set of demands each time.

Dear Ved, Generally, I insist that people provide essential details connected with the query. Unfortunately, many questioners provide the relevant details in installments only. Particularly in strike issues, the date of issuance of the strike notice and the proposed date of the strike, the nature of the manufacturing or services of the industrial establishment, the state wherein it is located, the total number of workmen, the number of trade unions, whether the demands include a revision of wages, whether the current wages are on par with the industry wages in the region, and whether any trade union is recognized. In the case of counter demands put up by the management, whether they relate to workload and whether the nature of work could be standardized, the existence or possibility of a production-linked incentive scheme as a supplement to normal wages, the age of the industry and the average age of the workers, whether any dispute has been raised before the area conciliation officer after unsuccessful bilateral negotiations, if any, and the present stage of conciliation and the like.

Section 10-B of the IDA, 1947

Coming to your issue, Section 10-B of the IDA, 1947, as amended by the State of Tamil Nadu, provides for the prohibition of the continuance of a strike, if any already commenced, while referring the issues for adjudication and prescribing terms and conditions of employment to be observed by both the employer and workmen until the disposal of adjudication. For further clarification, you may please go through the amended provision of 10-B.

You can request the conciliation officer to try his level best to resolve the dispute amicably and if not, submit his failure report to the appropriate government recommending invocation of Section 10-B, if necessary, as soon as possible.

You cannot come to a hasty conclusion that the demands of the union are totally unjustified and maintain a rigid stand. An amicable settlement of an industrial dispute is a win-win phenomenon. Therefore, whether it is the management or the workmen, whoever is not part of any reasonable solution becomes part of the problem.