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Union workers circled around burn barrels outside John Deere Seeding Group on Saturday in Moline, Ill., discussing the new “last, best and final offer” Deere made to the UAW on Friday afternoon.
“Hopefully this will be over soon,” one worker said, his hood wrapped around his head and his gloved hands in his pockets to ward off the 30-degree weather. “Everyone wants to get back to work with the holidays.”
Workers said the media probably “knows more than they do,” but they’d heard the third agreement included “modest modifications,” and they were hopeful it would be enough to end the strike.
Deere made its last, best and final offer to the UAW negotiating team Friday night.
UAW spokesman Brian Rothenberg said the new offer contains modest modifications to the last tentative agreement presented for ratification on November 2. He did not specify what the changes were.
The UAW rejected the second tentative agreement on a 55 percent to 45 percent vote, but gained majority support from some Quad-City union locals. It was rejected by locals in Waterloo and Dubuque.
‘Last, best, and final offer’
The modified agreement isn’t just a tentative agreement, according to Rothenberg. With the second tentative agreement, Deere announced it was their “last, best, and final offer” after the vote. This time, Deere officially declared this the last, best and final offer at the negotiating table, which could potentially trigger legal action, Rothenberg said.
“I know it’s caused a lot of confusion,” Rothenberg said. “I’ve had people say, ‘Well, you know, is it a tentative agreement?’ Well, yes, it is. But it just has a different connotation to it if it goes down.”
James Cooney, employment law expert at Rutgers University, said although declaring best and final offers isn’t unheard of, it doesn’t take place in every labor negotiation.
“Employers often claim to be making a last, best, final offer as leverage in bargaining to try to intimidate the union,” Cooney said.
Cooney said an official best and last offer could signify Deere is at an impasse in negotiations. The National Labor Relations Board requires an employer and unions to actively negotiate on employment terms “until they agree on a labor contract or reach a stand-off or ‘impasse.’ ” An impasse is a total breakdown of the bargaining process that occurs after good-faith negotiations and exhausted perspectives, according to the NLRB.
“That’s not an agreement with the company when saying ‘Hey, this is our last, best, final offer,’ ” Cooney said. “A union may take that back to the membership but, on the other hand, may choose not to, especially if it’s perceived as more of a threat. And that’s why there’s probably more going on behind the scenes than certainly I’m aware of, on both sides.”
If they are truly at an impasse and the union votes this offer down, Deere has the ability to implement the terms of it with employees working during the strike, Cooney said. Workers would be expected to continue their strike even if the agreement is implemented for remaining employees.
“If there is a true impasse, the law does allow an employer to unilaterally impose the conditions, but very often, there’s not a true impasse, and a third party, such as the National Labor Relations Board might disagree that there was no further room for bargaining,” Cooney said.
The UAW could file an unfair labor practice charge with the NLRB if the new agreement is implemented, he said.
In such cases, NLRB investigates, and if a company is found guilty of refusal to bargain, the NLRB can restore the old agreement and force the parties back to the negotiating table.
But if the NLRB decides the parties are at a true impasse, the company is legally allowed to implement the new agreement and hire replacement workers.
“It depends on so many moving parts,” Cooney said.
To keep negotiations open, Deere and the UAW could bring in a third-party mediator, like someone from the Federal Mediation and Conciliation Service, if they haven’t already.
“I hope the parties would be open to a mediator getting involved,” Cooney said. “But that’s really up to them.”