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Collective Bargaining Newsletter 

No. 1, January 2024            

To a negotiator the greatest commodity in the bargaining process is information. Among the five core sources of negotiator power, it is the research and information processing component that creates the most influence. The management of information is central to supporting your bargaining proposals, and the potential to devalue the other side’s.

There are fewer things more toxic to a collective bargaining relationship than the discovery that the other side is trying to deceive you – that they are lying. From your perspective being lied to can create suspicion, resentment, and deep disappointment. By lying to you, the other side is trying to create and benefit from an imbalance of power, and in doing so, inhibit your decision-making process. For many negotiators, particularly those new to the process, being lied to can create self-doubt and a feeling of being taken advantage of or being a victim.

Before going much further, we should properly frame the circumstances in which lying often takes place, after all, collective bargaining is a socially complex process that routinely involves competition over limited resources and workplace power. For example, experienced negotiators know that when we initially table proposals both sides are expected to inflate their bargaining value. Is this lying, is it unethical or an expected part of the process? When you purchase a used car, is it lying or unethical to not disclose that it has transmission issues. Police officers, lawyers and judges routinely see accused persons stand in court and proclaim their innocence – “not guilty” – despite a mountain of evidence to the contrary. Is this not unethical?

Researchers claim that lying has become a regular part of our daily interactions and can begin as early as ages 4-5 years. With all this in mind, it may be more appropriate to consider the scope of deceit (a better term for lying) and how it exists in collective bargaining.

A clinical definition of deceit is an act or omission by one party with the intention of creating or adding support to a false belief in the other party. This can take many shapes; it can be the misrepresentation of a position, like in opening stages of negotiations; it can be “bluffing” where a negotiator falsely takes a position on goals or priorities; it can be a purposeful falsification of details, data, information or facts, or selective disclosure or misrepresentation. In exchanges between two negotiators, we broadly define deceit in two forms - as the result of acts of omission or acts of commission. Omissions include those circumstances where a negotiator protects information by not disclosing it, or deflecting questions that may draw attention to something. Likewise, acts of commission are those situations where the other side purposefully change data/details to support their interests.

What motivates someone to lie in the bargaining process?  

It starts with a negotiator thinking that they can gain a temporary advantage in the process – by influencing the other’s decision-making process. Of course, this occurs within an ethically ambiguous range of possibilities. Deceitful negotiators see this as a pathway to power at the table (an inherently risky tactic given the impact of being discovered).

Negotiators will also consider the use of deception where they think the other side deceives. This is even more so if the negotiator’s general disposition is to be “competitive.” Simply put, the more there is to gain from deception, the more a negotiator may consider its use.

A simple test to evaluate trust is by carefully assessing the negotiator’s use of language and behavior. Does the other person use “inclusive” language, do they consistently present themselves as being motivated by joint interests in negotiations, or just their own? Are expressions of shared interest backed up by consistent performance? Negotiators build trust (and we evaluate trust) on the basis upon which they see the bargaining process as a common exercise. Those who express themselves in predominantly pro-self terms are more likely to engage in deceptive behavior for their own gain.

Understanding and Evaluating Trust

If one negotiator engages in deceptive behavior, it is the other’s assessment of trust that determines whether the deceit is effective. Does the negotiator question the comments of the first negotiator? The first question you should consider is whether the other negotiator is trustworthy.

When assessing levels of trust, you need to consider two questions – what is the actual history between the two negotiators/parties - does it support trustworthiness; and what is the reputation of the other negotiator – is he/she trustworthy?   

Relationship trust is straightforward and based on a history of working together on bargaining or workplace issues. While there may be some predictability based on history, negotiators must also be mindful of the forces that impact the other’s negotiating mandates. What circumstances exist “backstage” for the other negotiator? Could these be the cause of some levels of deception? 

Once a Liar, always a Liar

Sadly, there’s some truth to this old saying. By weighing only the immediate risk of harm, and in assessing whether they are likely to be caught, negotiators who rely on deception are inclined to use it with increasing frequency. The negotiator may start with insignificant “white lies,” but the frequency of use will move that negotiator’s boundaries of what is socially acceptable. They can shift the boundaries of ethical behavior, creating greater levels of self-justification for deception. They may see deception in collective bargaining as merely part of the process or warranted to protect confidentiality or position.

Negotiators prone to deception will look for opportunities where verification of their statements are difficult, where differences between the parties is great, where the other side lacks resources to resist deception, of where there’s no (or less) regard for the longer-term relationship between the parties.

What to do about deception?

Since deception is about the self-serving management of information, the most important and effective method to counter deception is your own level of preparation and research. Attention to detail, meaningful analysis of your and the other side’s proposals, careful review of factual accuracy, and anticipating employer positions arm you with the best counters to deception. It is also useful to inquire about the other negotiator’s reputation from other negotiators. 

Another powerful response to possible deception is asking carefully layered questions – who, what, why, when where and how? Ask questions in different ways and assess the consistency in the answers. You can also ask questions for which you already know the answers – especially framed in precise language. 

There’s little question that in the labour-management relationship the employer will possess more information that can be relevant to the negotiation process. In support of effective bargaining, legislation in the police sector also provides for Association access through production procedures. Labour boards and arbitrators have directed that information that is arguably relevant to the negotiations should be produced to the Association (even more so where the employer’s argument relies on some internal information).

It is also helpful to carefully assess your best alternative to the negotiated agreement – what we commonly refer to as the BATNA. While this may not empower you to counter deceptive behavior, it does give you a sense of what options exist if you can no longer tolerate improper bad faith bargaining, where settlement possibilities are low. In a sector where compulsory arbitration is the required dispute resolution model, negotiators think twice about trying to deceive an arbitrator.

The Response

If you detect lying, it must be identified and claimed, to prevent its further use. This can take different forms – typically beginning with a very diplomatic correction on a fact or statement. If there’s repeated use, the levels of diplomacy may change to the point where you must challenge the accuracy of data in very precise terms. This is a judgement call by your negotiation team, understanding the impact of such “calling out” in front of the other negotiator’s team. Regardless, negotiators must never allow bad behavior of this kind to persist. 

You should also be mindful of levels of preparation and competence before challenging deceptive behavior. Ask yourself, is this person trying to mislead me or is this just their lack of preparation or lack of skill? Sadly, those are not always exceptions. In those cases, you will be required to take a greater lead on the production of information that is reliable.

Short Success…Long Term Consequences

Sometimes a crafty negotiator will get away with deceptive tactics, where they are not detected. This is particularly so where a negotiator has power or status within a workplace, such as a CAO, or Senior Manager. There may be a perception that this person has exclusive access to relevant information, which enhances their positional strength. Depending on the circumstances, the discovery of deceptive behavior can prime a deteriorating cycle of retribution. The impact of deceit can be measured on a scale of how personal it was, how serious and what was the level of consequences – if each of these measures was high, the impact of deception on trust will be significant and long-lasting.

Concluding Thoughts

The collective bargaining process is, by definition, prone to bluffing, puffing, and potentially lying. Since most negotiations involve conflicting positions on resources or workplace power, some deception falls within the normative expectations of the process. But there is still a boundary on this generous definition of normative. The ethical line is drawn where a negotiator changes facts, data, or information – especially if that information is relied upon in shaping an employer proposal.  

During their 1987 negotiations over a nuclear treaty, U.S. President Ronald Reagan expressed his approach to dealing with Russian General Secretary Mikhail Gorbachev. Reagan quipped that it was best to “trust but verify.” Words that are equally applicable to the collective bargaining process.

     Copyright - Cole Labour, January 2024

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COLE LABOUR

Bill Cole created COLE LABOUR in early 2023 to focus on collective bargaining, interest arbitration, negotiation training and organizational development for labour unions, with a particular focus on first responders and health care. Bill has extensive experience representing unions in collective bargaining in the police, firefighter, health care, airline pilot, hotel workers, steelworkers, broader public and private sectors.  He has wide-ranging experience in mediation and interest arbitration in multiple sectors and jurisdictions across Canada. Bill has developed and delivered introductory, intermediate, and advanced negotiation training to thousands of union representatives across North America. He is the co-author of The Art of Collective Bargaining available at Thomson Reuters.  

 

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