1. DOs and DONTs of Direct Communications in NegotiationsL
40th N U
2017
NEGOTIATIONS
DOs and DONTs of Direct Communications in Negotiations
Dominic D’Imperio
Director of Employer/Employee Relations
Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES 

2. Considerations Contractual Provisions Ground Rules PERB Case Law
Limiting Language
Negotiations Procedures
Ground Rules
What have the Parties Agreed
PERB Case Law
Practical Considerations
Direct Mailers to Staff
Board of Education Meetings

3. Contractual Provisions
What does the CBA say, if anything, about direct communications?
Examples of Limiting Language
“The Parties may only communicate information from negotiations to their respective parties after the parties have reached agreement”
“The Parties will refrain from making any public comments about the content of negotiations until an agreement has been reached”

4. Contractual Provisions
What does the CBA say, if anything, about negotiating procedures?
Examples
“The Parties will have a first date for negotiations by January 31st immediately preceding the expiration of the contract.”
“The Parties will come to the first negotiation session, which will be no later February 1st, with written proposals to exchange.”

5. Contractual Provisions
Violation of a contractual provision can stall and/or hamper continued negotiation efforts?
Could result in a grievance simultaneously while attempting to negotiate
Could result in an Improper Practice charge for bad faith negotiations as evidenced by a contractual violation
Know your contract provisions

6. Ground rules Do you have ground rules in the contract? (See above)
Ground Rules for Negotiations
Application of Ground Rules to impasse and fact finding

7. Ground rules – In general
Ground Rules are a clear NON-MANDATORY subject of negotiations
Insistence on ground rules, i.e., confidentiality of the Parties proposals, as a pre-condition to negotiations is a violation of the Act
Constitutes a refusal to bargain in good faith
Matter of Greenburgh No. 11, 32 PERB ¶4512, 1999 WL (Feb. 2, 1999)

8. Ground rules Advantages for Ground Rules in Negotiations
Sets expectations for the Parties conduct in negotiations
Controls the flow of information from negotiation meetings
Prevents disruption of the process by allowing open and honest communication between the parties
Can establish a level of trust to allow the Parties to reach a negotiated settlement

9. Ground rules Disadvantages for Ground Rules in Negotiations
Sets unenforceable expectations for the Parties’ conduct in negotiations
Allows for unilateral control of information to the District’s employees via the union
Prevents the District from relaying open and honest communications to the District’s employees
Can erode trust between the parties if truthful and accurate information is not being relayed

10. PERB Case law Consequences for Violation of Ground Rules HOWEVER,
Can create the basis for an Improper Practice Charge to PERB for bad faith in negotiations IF THE DISTRICT HAS AGREED TO GROUND RULES in the first instance
HOWEVER,
“A public employer is privileged to meet with its employees, whether singly or in groups, for, among other things, informational purposes.”
Livingston Manor Teachers’ Assoc., 44 PERB ¶4586, 2011 WL (Sept. 16, 2011), citing Dutchess Community College, 41 PERB ¶3029, at 3129 (2008)

11. Perb case law Employer Statements and Direct Communications
“As to employer statements, the Board has held that they would be found to violate §209-a.1(a) of the Act ‘only if they were intended or likely to coerce employees to relinquish rights guaranteed by the Taylor Law....’ Further, an employer may communicate directly with employees about employment issues only ‘so long as the communication does not contain threats of reprisal for their exercise of protected rights and does not promise them benefits for refraining from exercising those rights.’ Finally, in determining whether employer speech violates the Act, the Board will examine statements made ‘by their terms and in context.”
Matter of Buffalo Teacher Federation, 47 PERB ¶4501, 2014 WL (Jan. 9, 2014), citing Town of Greenburgh, supra.

12. Practical considerations
Meeting with Employees 1 on 1
Be mindful of:
Answering questions asked & presenting “facts”
versus
trying to coerce or convince employees to relinquish their rights to representation
Respond truthfully and fully
Be consistent in your messaging to all employees

13. Practical considerations
District prepared information/updates
Provide factual and complete information
Avoid uses of subjective or overtly negative characterizations, i.e., use of pejoratives to describe motivations, methods, demeanor
Make sure the information/flyer/communication clearly identifies that it is District prepared materials
Provide a clear and concise summary of the state of the parties’ negotiations, proposals, packages, and next probable steps

14. Practical considerations
Updates to Boards of Education
Executive Session privilege of confidentiality
Permissive, not mandatory
Public Open Session Updates to Board Members for public review
Same guidelines as written materials
Provide a clear and concise summary of the state of the parties’ negotiations, proposals, packages, and next probable steps
Answer any questions honestly and truthfully

15. Addressing Issue: Round Table
What have you tried?
What have you proposed?
What actually works?

16. Enjoy the rest of your day here inM A S L
40th N U
2017
Thank you!
Enjoy the rest of your day here in