A Question of Balance…The Art of

Contract NegotiationsPresented by:

Darren G. Kermes Superintendent

SouthWest Metro Intermediate 288(952) 567-8102

dkermes@swmetro.k12.mn.us

Materials and Presentation

Developed By:

Greg VandalVox Liberi and PEER Solutions

Where are we going…

§ PELRA§ Two Approaches in Contrast§ Traditional Bargaining§ Interest Based Bargaining§ A Hybrid to Consider?§ Questions§ Wrap-up

PELRA (179A.01-25)§ Public Employment Labor Relations Act§ Purpose: To promote orderly and

constructive relationships between all public employers and their employees

§ Grants public employees the right to organize§ Requires public employers to meet and

negotiate

PELRA Public Policy (179A.01)§ Requires the result of bargaining to be in

written agreements§ Establishes special rights, responsibilities,

procedures, and limitations regarding public employment relationships

PELRA Definitions (179A.03)§ Unit - a classification of employees (teachers, etc.)§ Exclusive representative - a “certified” employee

organization authorized to meet and negotiate with the employer on behalf of all employees in the unit.

§ Meet and Negotiate - mutual obligation to meet at reasonable times with the “good faith intent” to enter an agreement on terms and conditions of employment.

§ Strike - a “concerted action in failing to report for duty…for purposes of inducing, influencing or coercing a change…”

PELRA Definitions• Teacher - any public employee other than a

superintendent or assistant superintendent, principal, assistant principal, or a supervisory or confidential employee, employed by a school district:(1) in a position for which the person must be licensed by the Professional Educator Licensing and Standards Board or the commissioner of education; or(2) in a position as a physical therapist, occupational therapist, art therapist, music therapist, or audiologist.

PELRA DefinitionsTerms and Conditions of Employment – means:• the hours of employment, • the compensation therefor including fringe benefits

except retirement contributions or benefits other than employer payment of, or contributions to, premiums for group insurance coverage of retired employees or severance pay, and

• the employer's personnel policies affecting the working conditions of the employees.

• In the case of professional employees the term does not mean educational policies of a school district.

Employee Rights (179A.06)§ Express views so long as they do not interfere with

duties of employer§ Organize: form and join (or not)§ Meet and Confer regarding policy matters other

than terms and conditions of employment§ Meet and Negotiate terms and conditions of

employment

Fair Share Fees and Janus§ On June 27, 2018, the United States Supreme Court

decided Janus v. AFSCME Council 31.§ The Court ruled that public-sector employers and unions may

not require that an agency fee, or any other payment to a union, be withheld from a non-union member’s paycheck, unless the nonmember clearly and affirmatively consents to the payment.

§ This decision had far-reaching consequences on public-sector employers and unions in Minnesota.

See https://ratwiklaw.com/index.php/2018/07/10/faq-supreme-courts-recent-fair-share-janus-decision/

Employer Rights (179A.07)§ Inherent managerial policy - no requirement to

negotiate:§ organizational policy, § budget, § organizational structure, § personnel selection and placement,§ number of personnel

§ Expressly restricts adoption of contract language which “limits (employer’s) right to select persons to serve as supervisory employees…or requires the use of seniority in their selection.”

PELRA - Unfair Labor Practice (Employee)

179A.13 Subd. 1§ Restricting employer rights under PELRA§ Improper involvement in the election of

board representatives who will meet and negotiate

§ Refusal to meet and negotiate in “good faith”§ Engagement in an unlawful strike

PELRA - Unfair Labor Practice (Employer)

179A.13 Subd. 2§ Restricting employee rights under PELRA§ Involvement/interference in formation,

existence, administration of an employee organization

§ Hiring practices related to employee involvement in employee organization

§ Refusal to negotiate in “good faith”

PELRA - Negotiations Procedures

179A.14§ Written notice given by exclusive

representative at least 60 days before expiration of current agreement

§ Joint negotiations are permitted (arena bargaining)

§ All negotiations sessions are public meetings except as called out specifically by the Commissioner

PELRA – Dispute Resolution

§ Mediation 179A.15§ Interest Arbitration 179A.16

§ Conventional§ Final-Offer Total Package§ Final-0ffer Item-by-Item

§ Strike authorization 179A.18

PELRA – Core Contract Provisions

179A.19 § No Contract Provisions Contrary to Law§ Duration Shall Not Exceed Three Years

§ Teachers Two Years§ Must Include Grievance Procedures§ Terms of Contract Continue In Effect

After Expiration and Prior to Strike

A Quest for Serenity!Grant me the serenity to accept the things

I cannot change, the courage to change the things I can, and the wisdom to know

the difference.

Reinhold Niebuhr

Three Stages of Truth/ChangeThe process of acknowledging a truth is broken down into three stages:

The first stage is ridicule. When a new idea or concept is brought up, it’s so strange that it’s completely absurd. People cannot fathom this idea and how it fits into their lives, so they simply laugh at how impossible it seems.

The second stage is opposition. After a new concept hasn’t made it past the first stage, people begin to worry that it’s here to stay. A few might support the concept, but most will resist because they see it as a threat to everything they’re familiar with.

The third stage is self-evident. There is increasing evidence that supports the idea, which goes from having a few early supporters to entering the mainstream. A majority of people support the fact and come to accept it as a given.

19th century German philosopher Arthur Schopenhauer

Two Basic Approaches…

§ Traditional (Positional) Bargaining

§ Interest Based (Principled) Bargaining

Key Definitions - Both Types§ Issue: The problem at hand; the subject under discussion.§ Interest: A concern expressed by either party. The reason the

issue is being brought up. Interests may be separate or mutual (concern by both parties).

§ Option: A potential solution to the problem expressed by either party. These are typically explored as a part of IBB.

§ Position: A proposed solution to an issue or problem. How the issue should be resolved, according to either party.

§ Proposal: An “official” offer made by either party which reflects that entity’s position(s). These are typically framed as a part of traditional negotiations.

Key Definitions - Both Types

• Iterest Based Collective Bargaining• Focused on issues and options.

• Traditional/Positional Bargaining• Focused on positions and proposals

The Ritual: Side by Side…PositionalBargaining

Disputants are adversaries

Goal is victory

Demand concessions

Dig into Position

Interest BasedBargaining

Disputants are joint problem-solvers

Goal is a wise decision

You work together to determine who gets

what

Focus on interests, not positions

The Ritual: Side by Side…(cont.)PositionalBargaining

Mislead, use tricks

Insist on your position

Apply pressure

Look for win for you alone

Interest BasedBargaining

Be open about interests, use fair principles

Insist on objective criteria, consider multiple answers

Use reason, yield to principle, not pressure

Look for win-win opportunities

Traditional (Positional) Bargaining Basics§ Structured and predictable process§ Strategy involves “fair” exchange§ Fixed ideas or positions held/defended§ Movement toward compromise can be move to the

middle§ As a result, extreme (padded) positions often initially

adopted§ Focus in on Positional Interests§ Compromise may be best aim rather than agreement

on issues

Traditional (Positional) Bargaining Basics

§ TeamsManagementUnion

RolesChief negotiatorBargaining historianLegal counsel??

§ MechanicsExchange proposalsDiscussionClosed caucusCounterproposalsAgreementImpasse resolutionImplementation

Interest Based Bargaining BasicsStep 1: Identify the problem§ What is the issue or problem?§ Why is it a problem?§ What are its possible causes?§ What are the effects on the organization?

Step 2: Discuss all interests behind the issue§ What are management’s interests (the supervisor’s

interests)?§ What are labor’s interests (the employee’s

interests)?§ Which are mutual, conflicting interests?

IBB Basics, cont. Step 3: Set criteria§ What are the standards or criteria for a good

solution?§ What are the priorities for the criteria?

Step 4: Develop solutions (options)§ List all potential solutions.§ Evaluate solutions versus criteria list.§ Agree on solution(s) that best meet(s) criteria

Interest Based Bargaining Structure

§ TeamsManagementUnion

RolesTeam discussion leaderDiscussion historianDiscussion participantLegal counsel??

§ MechanicsIdentification of issuesPrioritization of issues (optional)Development of working planw/issuesOpen “caucus”Identification of optionsAgreement on solutions(Impasse resolution)Implementation

Getting to Yes, the Foundation of IBB

§ Roger Fisher, William Ury, Harvard Negotiation Project 1981 – “Principled Negotiation”

§ Three ways to measure negotiation method:§ Does it produce a wise agreement?§ Is it efficient?§ Does it improve or “hold harmless” the relationship?

Interest Based Process Flow§ Training§ Establish Ground Rules (Process Agreement)

§ Dates, Times, Locations (in advance)§ Food§ Media§ Participants and Resources§ Agendas§ Set Standards

§ Identify Issues§ Take Turns Sharing§ Try to Consolidate

§ Develop and Share Interests§ Brainstorm Options§ Reach Agreement

Interest Based Process - Issues

ISSUE: # 1 How do we recruit and retain high quality staff?ISSUE: # 2 Professional DevelopmentISSUE: # 3 Wages/Compensation/InsuranceISSUE: # 4 Supplemental RetirementISSUE: # 5 SafetyISSUE: # 6 Illness/Bereavement/Personal LeaveISSUE: # 7 Housekeeping

Interest Based Process - InterestsINTERESTS OF UNION INTERESTS OF MANAGEMENTCompetitive compensation. Recruit highly qualified and talented staff.Stronger mentorship program. Retain highly qualified and talented staff.Tuition support to meet student district needs. Ensure quality instruction and services for students.

Recognize additional education obtained during time of employment.

Retain a blend of veteran staff to mentor and train new staff.

Maintain quality programs. Maintain fair compensation for all staff.Maintain adequate staffing. Ensure expenditures do not exceed revenue.

Maintain cost effective programs.Maintain solid entry level salary to insure recruitment of best qualified entry level teachers.

Retain and expand mentoring program.Encourage ongoing professional development.Achieve benefit package supported by member districts.

Encourage current non-member districts to participate in our programs.

Fair and equitable insurance contributions for all employees.

Be cost competitive so we don’t lose or recruit staff to or from member districts based largely or solely on compensation factors.

Be cost competitive so we retain or possibly add member districts.

Interest Based Process - Standards§ Identified in process agreement

§ May be developed Issue-by-Issue

Legal, Easy to understand, Practical, Acceptability, Fairness, Industry Practice, Common Area Practice, Internal Practice, Trends, Historical Practices, Equitable.

Interest Based Process - Options1. Training program for mentors.2. Enhanced compensation for mentors.3. Limit number of mentees per mentor.4. Consider multiple buildings vs single buildings in mentor assignments.5. Write a mentor/mentee mission/vision statement.6. Be more visible in recruiting at regional colleges/universities.7. Look within current team to “grow our own” professionals in low incidence/hard to find areas.8. “Finder’s Fee” bonus for recruiting hard to find staff.9. Partner with colleges/universities to recruit student teachers.10. Design a paraprofessional program under CTE to encourage current students to become paras.11. Signing bonus for hard to fill positions.12. Granting additional steps for hard to fill areas in lieu of experience.13. Provide more opportunity for supervisors to be able to do team building within all programs they are responsible for.14. Move starting step to Step 2.15. Involve teachers and professional staff with administrators in the interviewing process.

Interest Based Process - Agreement§ Produce a TA (Tentative Agreement) for Each Issue

§ All participants sign off§ Copies made and distributed§ Celebrate (literally) each TA

The parties agree to implement an MOU regarding mentoring as attached.

Article VII, Section 1, Subdivision 2 is amended to read:Subd. 2. Longevity Pay:

a. Full-time teachers entering their first year of tenure will receive a $1,000 one-time only stipend payable in September of the teacher’s first year of tenured employment. The one time stipend payment above shall be deposited into a 403b plan selected by the teacher. This one-time deposit does not require an employee matching contribution. The teacher may request a cash payment in lieu of the 403b deposit by notifying human resources on or before June 30th prior to their first year as a tenured teacher.

b. Full-time teachers, employed by either CSEC or MRVSEC prior to June 30, 2010, entering the 10th 8th

(eighth) consecutive year of employment will receive a $1,000 one-time only stipend payable in September of the 10th (tenth) 8th (eighth) year of employment. The one time stipend payment shall be deposited into a 403b plan selected by the teacher. These one-time deposits do not require an employee matching contribution.

A Hybrid: Adapting the IBB Approach to Traditional Bargaining

Preparation Phase§ Make sure your side is committed to using the

process§ Before bargaining team is picked, get approval to use IBB to

ensure it will not be derailed.

§ Make sure the other side agrees to use the process§ Reflect the agreed approach in ground rules.

§ Orient everyone on IBB § Everyone must be trained

§ training is available free from BMS

Adapting the IBB Approach, cont.

§ Incorporate traditional preparation techniques with IBB§ Drill down hard on issues§ Identify criteria§ Invent options – stop short of proposals§ Use IBB within the team as well as with the other side§ “Proposals” can be crafted in the form of criteria.

Determine “easy” issues versus “tough” issues; identify issues most susceptible to quick, amicable resolutions

§ Decide where IBB will fit best§ Consider IBB for non-financial language; traditional for

the rest

Parting Thoughts§ Best part of using traditional is that it provides a “safe”and/or “predictable” process§ IBB can be riskier

§ Worst impact of traditional may be the negative effect on the relationship§ IBB tends to maintain or even build relationships

§ IBB is flexible enough to use as a:§ Comprehensive process§ A “part time” tool in conjunction with traditional § An intra-team technique for identifying your most

important needs to develop traditional proposals§ Knowing the primary interests of both parties is essential –

IBB helps§ The end is really the beginning of the next round!

Resources§ Getting to Yes, 2nd edition, Roger Fisher, William Ury,

Bruce Patton, Penguin Books, 1991 (rev 2011)§ The Bargaining Book, 5th edition,

Phillip A.Varnak, FPMI Solutions, Inc., 2003§ Minnesota School Board Association Management

Services Manual (hard copy or web-based services)§ Minnesota Statute 179A.01-179A.025 (PELRA)