1. The Basics of Bargaining and Building Your Bargaining Team 2015 MNA Fall Conference Robert T. Schindler Lusk Albertson (248) 988-5696 RSchindler@LuskAlbertson.com Twitter: @LuskAlbertson Download this presentation at www.LuskAlbertson.com/MNAFall2015

2. The Collective Bargaining Process

3. 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”

4. Team Management Management ◦ 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

5. Team Management Management ◦ 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

6. Team Management Management ◦ 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

7. Stages of Negotiations The Training Stage – Pre-Negotiation Prep

8. Stages of Negotiations The 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?

9. Stages of Negotiations The 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

10. Stages of Negotiations The 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

11. Building a Winning Team

12. Who 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 circumstance Considerations ◦ Relationship with labor ◦ Anticipated contentious issues ◦ Knowledge that would aid the team/process

13. Building a Winning Team Chief 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

14. Building a Winning Team Who 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.

15. Building a Winning Team Who 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.

16. Stages of Negotiations Opening Presentations of Proposals

17. Stages of Negotiations Opening 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

18. Stages of Negotiations Middle Phase ◦ Parties look for areas of agreement ◦ Areas of disagreement/priority become apparent Pre-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

19. Stages of Negotiations Final Rounds – Tentative Agreement or Impasse ◦ Impasse breaking tools – mediation and fact finding ◦ “Work to rule” may occur ◦ Strike a possibility (although illegal)

20. Bargaining Models Traditional ◦ 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

21. Public Employment Relations Act (PERA)

22. Different Bargaining Units Unit 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

23. Different Bargaining Units Teacher/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?

25. How the MEA and AFT are organized MEA – 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

26. 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

27. Different Bargaining Units Administrative 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.)

28. Different Bargaining Units Who is excluded? ◦ Superintendent ◦ Executive Administrators ◦ Confidential secretaries

29. The duty to bargain Must 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

30. Impasse

31. Impasse MERC 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

32. Subjects of Bargaining Mandatory 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

33. Subjects of Bargaining Permissive subjects May 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

34. Subjects of Bargaining Prohibited 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

35. Unfair Labor Practices

36. Violations 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.)

37. Unfair Labor Practices Union 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.

38. Unfair Labor Practices New 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

39. Unfair Labor Practices Charges have a statute of limitation of 6 months Decided by the MERC ◦ First heard by an administrative law judge ◦ Appealed to the full commission (MERC)  3 member panel  Given jurisdiction over the PERA

40. Its Over! Questions?