The Basics of Bargaining and Building Your Bargaining Team

2015 MNA Fall ConferenceRobert T. SchindlerLusk Albertson(248) 988-5696RSchindler@LuskAlbertson.comTwitter: @LuskAlbertsonDownload this presentation at www.LuskAlbertson.com/MNAFall2015

The Collective Bargaining Process

Team Labor The Union

◦What are unions trying to achieve? Increase wages and fringe benefits Clarify and reduce duties and work hours Protect those currently working in bargaining unit Limit, or gain input, into management’s decision

making process as it relates to the bargaining unit Maintain and grow membership

◦What is the union’s role? Address divergent pressures from rank and file Gain influence for state organization and use it to

steer legislation “Rally the troops”

Team ManagementManagement

◦What is management trying to achieve? Hold down or reduce costs Improve work product Increase flexibility of operations and ability to

use unilateral discretion in decision-making Ability to maintain or grow itself and the

operation as it sees fit

◦Who is included in “management?” Board of Education Superintendent Executive Administrators – including HR

executive and/or Chief Bargainer

Team ManagementManagement

◦Roles of management: Board of Education

Establish mission, goals, policies, procedures, and parameters under which to operate the District

Superintendent Carry out the District’s mission and goals Deal with community politics Supervise staff (especially executive staff) Resolve conflict

Executive Administrators Help develop issues, carry out the District’s

mission, and support management team

Team ManagementManagement

◦Roles of management Chief Negotiator

Lead negotiating team (at and away from the table)

Represent the Board of Education Prepare proposals Keep Superintendent, Board of Education, and

other necessary parties informed of progress Recommend contract terms, settlements, and

agreements to the Board of Education

Stages of NegotiationsThe Training Stage – Pre-

Negotiation Prep

Stages of NegotiationsThe Training Stage – Pre-

Negotiation Prep◦Much like most things in life, this is

where the game is truly won or lost◦Develop a plan and strategy for what

you want to accomplish and how you are going to do so

◦Prioritize your goals – what are must haves and what can be used as bargaining leverage?

Stages of NegotiationsThe Training Stage – Pre-Negotiation Prep

◦Evaluate existing contract, policies, and procedures

◦Review finances◦Look over grievances and arbitration decisions◦Review recent court decisions or changes in

statutes (NOW MORE THAN EVER!)◦Analyze internal and external data on salaries,

benefits, etc.◦Review previous proposals or bargaining

processes◦Maintain and review file on problematic CBA

provisions

Stages of NegotiationsThe Training Stage – Pre-

Negotiation Prep◦Preparing your team for what is to

come Inform yourself on potential (or likely)

union tactics Let the bargaining team know what they

can expect Prepare the board of education and be

sure they have the will to move forward with the goals of the contract (especially if going through difficult/concessionary bargaining)

Discuss potential outcomes – i.e., settlement, ULPs, mediation, fact finding, impasse

Building a Winning Team

Building a Winning TeamWho should be on your team?

◦A larger team allows for more information and input

◦A smaller team is more efficient◦Either could be proper depending on the

circumstanceConsiderations

◦Relationship with labor◦Anticipated contentious issues◦Knowledge that would aid the

team/process

Building a Winning TeamChief Negotiator

◦Can be anyone (Superintendent, Business Manager, HR, Outside individual/counsel) Consider why a certain individual should

be lead bargainer Temperament, respect, relationship, 0situation,

etc.

◦Should be the lead voice for the team at the table

Building a Winning TeamWho else should be on the team?

◦Superintendent Is face of District. Can be positive or negative

depending on the scenario

◦HR Will be charged with enforcing and interpreting

the contract. Should be at the table

◦Business Manager Will know the finances better than anyone

(and can cost out offers and give financial analysis). Should either be at the table or available for meetings when finances are discussed.

Building a Winning TeamWho else should be on the team?

◦Outside counsel/bargainer Can give different perspective and aid in planning.

Can also be negative focus for union if necessary. Must do cost benefit analysis (the cost will be raised as an issue by the union)

◦Board Member There are times when the Board insists on having a

Board member at the table. Avoid if possible

◦Curriculum Director May want to involve depending on the issues and

relationship with staff Otherwise have available as issues arise.

Stages of NegotiationsOpening Presentations of

Proposals

Stages of NegotiationsOpening Presentation of

Proposals◦Ground Rules

Need not agree to ground rules

◦Exchange necessary information, initial proposals, and rationales (discuss necessary goals)

◦Posturing – sizing each other up

Stages of NegotiationsMiddle Phase

◦Parties look for areas of agreement◦Areas of disagreement/priority become

apparentPre-Crisis (Deadline) Stage: Economics

Take Priority◦Management position often becomes firmer

on “no”◦Union initiates pressure tactics.◦Parties begin to come toward center◦Sidebars become more prevalent and

informal proposals introduced

Stages of NegotiationsFinal Rounds – Tentative

Agreement or Impasse◦Impasse breaking tools – mediation

and fact finding◦“Work to rule” may occur◦Strike a possibility (although illegal)

Bargaining ModelsTraditional

◦ Adversarial in nature◦ Quid pro quo◦ Pressure tactics◦ Use of time crunch◦ Chief negotiator and bargaining team roles◦ Use of caucuses

Collaborative◦ Interest-Based (integrative bargaining, win-win

bargaining) – parties collaborate for win-win◦ Expedited– restrict time and issues on the table◦ Progressive – “full disclosure” bargaining – early

start, talk through each issue, early mediation/fact finding

Public Employment Relations Act (PERA)

Different Bargaining UnitsUnit decided on by the Michigan

Employment Relations Commission (MERC)

Individuals in unit must share a “community of interest”

Parties may seek “unit clarification” to add or remove positions from bargaining unit once the unit has been established

Bargaining unit NOT the same as union

Different Bargaining UnitsTeacher/Professional Unit

◦Usual players – MEA or MFT◦Separate from “non-professionals”◦Generally includes non-certificated

positions such as: Guidance counselors Media specialists Occupational or Physical therapists Social workers and psychologists Speech pathologists Nurses

◦Still community of interest?

How the MEA and AFT are organizedMEA – dominated by full-time staff hired by

the central organization◦Uniserv Directors – Assigned by the MEA to

regional areas to handle labor relations within their member districts

◦Regional Directors – Cover larger area and supervise Uniserv Directors. Report directly to executive director

MFT – Locally elected model◦Local leaders tend to determine goals and do

bargaining. Staff reps only called in when needed

◦Tends to end up in more reasonable process

Different Bargaining Units“Non-Professional” staff (non-

certified, support, etc)◦Usual players – MEA, AFSCME, UAW,

Teamsters, etc.◦“Largest appropriate unit”

Cannot include supervisors

◦Generally includes: Bus drivers Custodians/Maintenance Food service Parapros/aides/hall or lunch monitors Secretaries

Different Bargaining UnitsAdministrative Unit

◦Usual players – MEA, but more often this will be an “independent” group

◦Again, must be separate from those they supervise

◦Generally includes: Principals and APs Directors (i.e., special ed director, athletic

director, etc.)

Different Bargaining UnitsWho is excluded?

◦Superintendent◦Executive Administrators◦Confidential secretaries

The duty to bargainMust bargain in good faith with

regard to wages, hours, and other terms and conditions of employment – section 15 of PERA◦Mutual obligation of employer and union◦Must bargain in good faith◦Bargaining must agree to bargain over

wages, hours and working conditions (mandatory subjects) Employer may not unilateral alter such

mandatory subjects – unless and until impasse

Impasse

ImpasseMERC has described as the point

where the positions of both parties have solidified to the point where further bargaining is futile

MERC decides impasse – based on totality of the circumstances

Employer may implement last best offer on subject of impasse

Does NOT end duty to bargain, merely requirement to maintain status quo

Subjects of BargainingMandatory subjects:Must bargain and may take to impasse

◦Wages, hours, and working conditions◦Examples:

Wages, COLA Benefits – insurance, vacations, holiday pay, etc. Grievance procedure Work rules School Calendar (Expedited impasse, Modifications

by statute) Class Size, conferences/planning time, and length

of day Duration of agreement

Subjects of BargainingPermissive subjectsMay bargain but cannot take to

impasse◦Management decisions fundamental

to operation of enterprise◦Examples

Rate of pay for non-unit substitutes Seniority for those formerly in unit Curriculum or educational policy

decisions Bargaining ground rules

Subjects of BargainingProhibited Subjects

◦ Those listed in section 15 of PERA (MCL 423.215) Examples

1249 evaluation system 1248 policy regarding personnel decisions Teacher placement Experimental or pilot programs Contracting for non-instructional support (must give union chance

to bid)

Illegal Subjects◦ Those that would require violation of statutes

Examples Waiver of overtime or minimum wage (FLSA) Union Shop (RTW) Discriminatory clauses Waiver of tenure

Unfair Labor Practices

Unfair Labor PracticesViolations of section 10 of the PERA

◦ Interfering with, restraining, or coercing public employees in the exercise of their protected rights (which now includes not only to organize, but also to not be associated with the union)

◦ Initiating, creating, dominating, contributing to, or interfering with a labor organization (automatic dues deduction - current injunction)

◦Discriminating on hiring or terms or conditions of employment based on protected activity

◦Refusal to bargain in good faith (regressive bargaining, repudiation of the contract, direct dealing, etc.)

Unfair Labor PracticesUnion unfair labor practices

◦Refuse to bargain in good faith◦Restrain or coerce a public employer

in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances.

◦Cause or attempt to cause a public employer to discriminate against a public employee.

Unfair Labor PracticesNew ULP’s that have come about

through recent legislation:◦The union’s proceeding upon a

grievance to arbitration that relates to a prohibited subject of bargaining

◦Denial of an individual’s rights under Michigan’s FTW provision

Unfair Labor PracticesCharges have a statute of

limitation of 6 monthsDecided by the MERC

◦First heard by an administrative law judge

◦Appealed to the full commission (MERC) 3 member panel Given jurisdiction over the PERA

Its Over! Questions?