Presented for the California Public Employers Labor ... · overview of labor relations in the...

Presented for the California Public Employers Labor Relations Association:

Rex Randall EricksonErickson Law Firm A.P.C.

(800) [email protected]

Presented for the California Public Employers Labor Relations Association:

Rex Randall EricksonErickson Law Firm A.P.C.

(800) [email protected]

The purpose of this workshop is to provide an overview of labor relations in the public sector. We will specifically be looking at: The rules and authority governing the

relationship Sunshining Mandatory, Prohibited and Permissive Subjects

of Bargaining Unfair practices and grievances Negotiation Best Practices

December 6, 2017

Labor Relations 101 CalPELRA 2017 Annual Training Conference Rex Randall Erickson - Erickson Law Firm A.P.C. 800.864.8111 | www.EricksonLaw.com

Page 1

EERA / HEERA / MMBA Education and Government Codes Decisions of the Public Employee Relations Board

(“PERB”) Decisions of the California Courts of Appeals, the

California Supreme Court, the 9th Circuit Court of Appeal, and the United States Supreme Court

The Collective Bargaining Agreement (including side agreements and MOUs) and past practices

EERA: Public schools and community colleges HEERA: California State University, University of

California, and Hastings College of Law MMBA: Public agencies, including counties, cities,

districts, and other political subdivisions Dills Act, Trial Court Act, TEERA, Court

Interpreter Act

December 6, 2017


Page 2

These law create a process for groups of employees sharing a “community of interest” to organize and become represented by an exclusive bargaining unit (union)

These laws also define the ground rules and processes by which employers and bargaining agents negotiate, arbitrate, and grieve disputes

Instructors/Teachers/Professors Non-exempt classified employees Substitute teachers Summer school employees Language, speech, and hearing specialists Financial aid coordinators Public information officers Faculty Acting as department chairpersons City attorneys, physicians, engineers, etc. Municipal employees Peace officers Hospital residents and clinical fellows

December 6, 2017


Page 3

Governing Body Members Elected Officials Persons appointed by the Governor Management employees Confidential employees Job applicants (except for retaliation for

exercising rights) Retirees Student interns and graduate student instructors

employed incidentally to their educational concerns

Employee relations laws are administered by the Public Employment Relations Board, or “PERB” PERB has broad authority to investigate and

decide alleged unfair labor practices and approve the establishment of local bargaining units

PERB has exclusive jurisdiction over all matters that are covered by the EERA/HEERA/MMBA, or even “arguably” covered

December 6, 2017


Page 4

SUNSHINING

The EERA and HEERA require that bargaining proposals be made public or “sunshined”The sunshining process recognizes that negotiations are a matter of public concern as well as the importance of public participation in decisions affecting the educational process even as to matters clearly within the scope of representation

No MMBA requirement – but consult charters, ordinances and local laws

December 6, 2017


Page 5

Contents of the Initial Proposal – The public must be informed of the issues that are being negotiated and have a full opportunity to express their views on the issues, and to know of the positions of their elected representatives” PERB interprets this as requiring initial proposals to

be sufficiently developed to allow the public to comprehend them NOT COMPLIANT: Simply stating the subject matter to

be negotiated, such as “Article 17” or "wages” COMPLIANT: Proposing a method of wage calculation

that is tied to the Consumer Price Index

Contents of the Initial Proposal Examples:

ARTICLE 7 - COMPENSATION, SALARY AND BENEFITS – The District intends to submit proposal on compensation and benefits that allow it to remain competitive in the job market while at the same time remaining fiscally responsible. ARTICLE 10 - LEAVES – The District intends to submit proposals bringing this Article into compliance with recently enacted leave laws.

December 6, 2017


Page 6

“Sunshine” Process Step One: The initial proposals of both the union

and employer must first be presented at a public meeting

Step Two: The public must be given an opportunity to express itself at a public meeting after a “reasonable time” has passed following the submission of the initial proposal

Step Three: After the public has had the opportunity to express itself, the public employer must formally adopt its initial proposal at a public meeting

“Sunshine” Process

Meeting and negotiating of the collective bargaining agreement cannot take place until all three steps have taken place

December 6, 2017


Page 7

Reasonable Time Before Negotiation No specific timeline exists for determining what constitutes a

minimum “reasonable time” for the public to become informed and make comment, and that each case should be examined based on the facts

The process may take as little as two meetings a few weeks apart: At the first meeting, both the employer and the union

present their initial proposals At the second meeting, the public is given the

opportunity to comment on both proposals and the Board adopts the employer’s proposal

Distributing Copies of the Proposal PERB holds that copies of the proposal must be

made available at one publicly-held meeting a “reasonable” period of time before the public is given the opportunity to comment

There is no obligation to supply copies at all public meetings at which the proposal is discussed, nor at the first public meeting at which the proposal is discussed

(Los Angeles Unified Sch. Dist. (1994) PERB Dec. No. 1044.)

December 6, 2017


Page 8

Counter-Proposals on Sunshined Subjects

There is no requirement that counterproposals made by the other party on a disclosed matter be publicly noticed prior to the commencement of negotiations

(Sacramento City Unified School District (1982) PERB Decision No. 205.)

New Subjects Arising After Presentation of Initial Proposals

Must be made public within 24 hours

If vote is taken, the position of each elected official must be made public within 24 hours

New Subjects may be orally noticed. (Los Angeles Comm. Coll. Dist. (1991) PERB Dec. No. 908.)

December 6, 2017


Page 9

Consequence of Violations

Violations of the public notice procedures constitute an unfair practice

Unfair practice violations have a six month statute of limitations

Any affected member of the public may bring unfair practice charge

However, failure to sunshine does not render an agreement invalid

MANDATORYSUBJECTS OF BARGAINING

December 6, 2017


Page 10

EERA provides that:“The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment.”

HEERA (non-supervisors) provides that:“The scope of representation means, and is limited to, wages, hours of employment, and other terms and conditions of employment.” (non-supervisors)

MMBA and HEERA (supervisors) provides that:“The scope of representation includes all matters relating to employment conditions … including wages, hours, and other terms and conditions of employment.”

PERB has held that the following fall under the definitions of “Wages” Overtime, Extra-Duty, and Severance Pay Special Achievement Awards (monetary) Employee Uniforms, Equipment, and Supplies Use of Employer /Personal Vehicle and Travel

Expenses Timing and Method of Payment Salary Classification Systems Payroll Deductions Others

December 6, 2017


Page 11

PERB has held that the following fall under “Hours of Employment” Hours of work on particular days Distribution of workdays in a week Days worked per year and calendar Shift schedules Breaks and duty-free time during the day Assignment of special duties, extra hours Vacations and holidays Standby or Waiting Time Time Clocks and Sign-Out Policies Call-back or Call-in Time Some Staffing Level Decisions

“Other terms and conditions of employment” are defined as: Health and welfare Leaves Transfer and reassignment policies Safety conditions of employment Class size Procedures to be used for the evaluation of

employees Organizational security Procedures for processing grievances

December 6, 2017


Page 12

PROHIBITED SUBJECTSOF BARGAINING

HEERA: Consideration of the merits, necessity, or organization of

any service, activity, or program established by law or by resolution of the regents, directors, or trustees

The amount of any fees that are not a term or condition of employment

Student admission requirements, certificates and degrees to students, and the content and supervision of courses, curricula, and research programs

December 6, 2017


Page 13

HEERA: Standards, policies, and procedures for the

appointment, promotion, tenure, evaluation, and processing of grievances of members of the academic senate

Subjects that restrict, limit, or prohibit the full exercise of the functions of the Academic Senate or other faculty councils or peer review committeeswith respect to policies on academic or professional matters

MMBA: The scope of representation shall not include: Consideration of the merits, necessity, or organization of

any service or activity provided by law or executive order

Fundamental management decisions outside the scope of bargaining that establish or alter “the amount of work that can be accomplished or the nature and extent of the services that can be provided”

December 6, 2017


Page 14

MMBA: Decisions affect the level of health and safety services provided to the public outside scope of bargaining: Policies governing the use of force by peace officers Decisions made in an effort to implement goals of a federal

consent decree Procedures for processing and investigating citizen

complaints against police department employees Determination of minimum qualifications for fire captain

EERA: Where provisions of the Education Code would be “replaced, set aside or annulled by the language of the proposed contract clause”

(Govt. Code § 3540; San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Ca1.3d 850, 864.)

Where the Legislature specifically sets forth statutes governing the operations of schools and colleges in the Education Code

(Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269.)

December 6, 2017


Page 15

Where the Education Code gives exclusive discretion on a subject to the district, that subject may not be a subject of bargaining - any contract provision that contradicts or dilutes district discretion is void and unenforceable

(Sunnyvale Unified School District v. Jacobs(2009) 171 Cal.App.4th 168.) A court may find that a provision in a collective

bargaining agreement is unenforceable beforearbitration takes place

(United Teachers of Los Angeles v. Los Angeles Unified School District (2012) 54 Cal.4th 504.)

Examples of Potentially Illegal Subjects of Bargaining (EERA):

Issues relating to administrator contracts Sale or lease of property Construction projects Discretion to count prior years service as temp towards

tenure Ability to cancel assignments in excess of regular

workload Decision to terminate probationary faculty Termination of temporary/adjunct/part-time employees Union entitlement to leave for union officers District's entitlement to full reimbursement for Union

officer leave

December 6, 2017


Page 16

PERMISSIVE SUBJECTSOF BARGAINING

“All matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating, provided that nothing herein may be construed to limit the right of the public school employer to consult with any employees or employee organization on any matter outside the scope of representation.” (EERA - Govt. Code § 3543.2(a); see also HEERA - Gov. Code § 3562(q).)

December 6, 2017


Page 17

There is nothing illegal about making or agreeing to a proposal on a permissive non-negotiable subject -however, there is no obligation on either party to negotiate

A party may not require agreement on specific mandatory subjects as a prerequisite to further negotiations on other issues

Parties may not insist to impasse over permissive subjects (although objection must be expressed before it is an unfair practice charge)

Once agreement is reached on a permissive subject and it is embodied in a CBA, the parties are bound by the terms of the agreement until it expires or is modified by the parties

However, by once bargaining and agreeing on a permissive subject, the parties do not make the subject a mandatory topic for future bargaining

Examples of permissive matters that are within management’s discretion:

Decision to implement computer use policy Location of employee parking Change in benefit plan administrator not

affecting benefit levels Assignment of Duties within job description Staffing Levels Creation or abolishment of job classification Entity-wide smoking policies

December 6, 2017


Page 18

UNFAIRPRACTICES

An unfair practice charge may be filed by the opposing party if it believes the other party has engaged in conduct in violation of the EERA/HEERA/MMBA

PERB has jurisdiction to determine whether an unfair practice has occurred and if so, what the remedy should be

December 6, 2017


Page 19

Employer Conduct That May Result in an Unfair Practice Charge

Retaliation or Discrimination against Employees Because of Their Exercise of Rights Retaliation Includes: Impose or threaten to impose reprisals on employees Discriminate or threaten to discriminate against employees,

or Otherwise interfere with, restrain, or coerce employees

Rights of Individuals include: The right to form, join, and participate in the activities of

employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations

The right to present grievances


Deny to the union its right to: represent its members use employer’s facilities release time represent members, etc.

Dominate or interfere with the formation or administration of any employee organization

Contribute financial or other support to a union

In any way encourage employees to join any organization in preference to another

December 6, 2017


Page 20


EERA/HEERA: Refuse or fail to meet and negotiate in good faith with an exclusive representativeMMBA: Refuse or fail to meet and confer in good faith

Failure to Meet in Good Faith

Both the requirement to “meet and negotiate" and “meet and confer” in good faith requires a subjective attitude demonstrating a genuine desire to reach agreement

PERB utilizes either a “per se” test or a “totality of the conduct” test, depending on the specific conduct involved and the effect of such conduct on the negotiating process

December 6, 2017


Page 21

Employer Conduct That May Result in an Unfair Practice ChargeUnilateral Changes

Occurs when an employer takes any action to change the status quo on a matter within the scope of bargaining without giving the union notice or an opportunity to bargain before implementing the change

Unilateral changes are considered “per se” violations if:

The employer implemented a change in established policy concerning a matter within the scope of representation;

The change was implemented without providing the union notice and an opportunity to bargain; and

The unilateral change has a “generalized effect or continuing impact” upon terms and conditions of employment for bargaining unit members


Examples of Unilateral Changes

A change that benefits employees is negotiable (e.g. lower health care premiums)

A temporary change is negotiable

Offering to negotiate after the change, or reversing the change does not cure unilateral action

The unilateral change need not be unit wide - a unilateral change at one facility or to a small number of employees will suffice to meet the generalized effect requirement

December 6, 2017


Page 22

A single administrative error that the employer stands ready to correct is not a refusal to negotiate in good faith

A threatened change, standing alone, does not constitute bad faith bargaining

If the employer offers reasonable written notice and an opportunity to bargain, but the employee organization does not respond, the public employer may unilaterally act


Other Per Se Violations

Absolute Refusal to Bargain on Negotiable Issue Conditioning Proposals on Waiver of Rights i.e. Withdraw grievance or drop right to file a grievance

Failure to Execute Ratified Agreement Insistence to Impasse on Non-Mandatory

Subjects of Bargaining

December 6, 2017


Page 23


Totality of the Conduct– “Indicia of Bad Faith”

Failure to Exchange Proposals or Attempt to Reconcile Differences

Dilatory Tactics Negotiators Without Adequate Authority Bypassing Representatives Surface Bargaining Regressive Bargaining

A written allegation that there has been a misinterpretation, a misapplication, or a violation of a specific provision of the collective bargaining agreement

Every bargaining unit each has its own grievance procedures

December 6, 2017


Page 24

Common Examples of Grievances

Changing an employee’s schedule without following procedures or providing scheduling preference

Issuing reprimands or discipline without following progressive discipline

Failure to follow evaluation procedures

Grievances result in mediation or arbitration Grievances can allege a single violation of the

CBA Unfair Practices can allege violations of binding

past practice Grievances require an informal conference

between the supervisor and the employee –TAKE ADVANTAGE

December 6, 2017


Page 25

Options: Accept Remedy, Respond and Deny Grievance, or Refuse to Process Grievance

When the employer refuses to process the grievance, the Association can file an unfair practice charge before PERB or it can file a writ of mandate in Superior Court seeking a court order compelling the employer to proceed to arbitration

Untimely Failure to follow grievance procedures Does not allege a violation, misinterpretation, or

misapplication of a provision of the collective bargaining agreement

Conduct is authorized by the collective bargaining agreement, binding past practice, or the law

December 6, 2017


Page 26

Affirmative Defenses:LachesUnclean HandsDispute subsumed under pending PERB complaint

or lawsuit Remedy would require an arbitrator to alter, amend

or change the collective bargaining agreement Remedy is precluded by the law

Note: all appropriate defenses should be raised at the earliest opportunity as defenses may be waived if not asserted

Parties may enter into a written agreement providing procedures for final and binding arbitration of disputes on the interpretation, application, or violation of the agreement. If the written agreement does not include procedures for final

and binding arbitration, the parties may agree to submit any disputes involving the interpretation, application, or violation of the agreement to final and binding arbitration pursuant to the rules of the governing body.

An arbitration awards under these provisions are final and binding on the parties and any award made pursuant to such an agreement is enforced pursuant to Code of Civil Procedure 1280, et seq.

If an agreement to go to arbitration is breached, either party may apply for a court order directing that the arbitration proceed.

December 6, 2017


Page 27

NEGOTIATIONBEST PRACTICES

Whether to have legal counsel at the table?

Legal Counsel’s (biased) Point of View Collective bargaining agreements are legally binding

documents interpreted by lawyers (PERB) CBAs govern the working relationship between

management and the employees, as well as establishing each other’s respective rights

CBAs frequently impact 80-85% of the employer’s budget

Fees and expenses can be a reimbursable Mandated Cost

December 6, 2017


Page 28

Legal Review of Current Contract Legal changes to contract

Leave policies comply with changes in law Release time for union officers Discipline and arbitration procedures Right of assignment Adjunct reemployment rights Recapture other management rights

Identify existing provisions which are permissive or prohibited subjects of bargaining

Adequately Prepare for Negotiation: The single most important ingredient for ensuring that proposals and ideas are adequately explained at the bargaining table is advance preparation: Thoroughly examine the current circumstances Reviewing specific past problems is extremely helpful in

explaining why a contract clause is important and how that clause will operate

Actively debate the advantages and disadvantages of each proposal within the bargaining team and collaborate in the drafting of the language

December 6, 2017


Page 29

Review Existing Contract Thoroughly Conference with management to determine what

provisions of the contract regarding day-to-day operations have not been “working”

Encourage managers throughout the year to report any issues with the existing CBA as they occur

Track prior grievances and other employee/supervisor complaints for possible contract changes to avoid issues in the future

Compile Data Necessary to Support Terms Offered in the Proposals

Legal requirements What are other area employers paying for similar

positions? State budget information, LAO forecasts PERS/STRS forecasts Number of personnel eligible for early retirement Total compensation – step/column, fringe benefits,

longevity increases, stipends, paid leaves

December 6, 2017


Page 30

Compile Data Necessary to Support Terms Offered in the Initial Proposal Account for increased costs and uncertainty Assume increases for step/column movements and

COLA Anticipate utilities, insurance, and other fee increases Consider establishing a minimum fund balance

percentage Accurately assess financials“Inability to pay” does not mean “unwillingness to pay”Consider program cuts or other sources of funding

before you tell employees you have no money

Keep the Governing Body informed Update and consider their recommendations Highlight areas that could lead to an impasse early

in the process so they understand management position

Provide new members a history so they know that management does not ignore union concerns

Keep management informed

December 6, 2017


Page 31

Thank You!

December 6, 2017


Page 32

AREAS OF CONCERN

CHECKLIST

A. SEEK ADVICE FROM HUMAN RESOURCES/LEGAL COUNSEL IF

CONTEMPLATING THE FOLLOWING EMPLOYMENT ACTIONS:

1. Disciplining an employee for something he/she communicated.

2. An employee being disciplined has communicated matters which may be of public

concern (i.e., whistleblowing)

3. An employee being disciplined has communicated concerns about unlawful

harassment or discrimination (race, gender, religion, ethnicity, etc.).

4. An employee being disciplined has been active in any employee organization

activities.

5. An employee being disciplined has sustained a work injury or reported a work injury

recently or has a pending claim.

6. An employee being disciplined has not been properly evaluated.

7. An employee being disciplined for performance or conduct has no adverse

information in his or her personnel file.

8. An employee being disciplined has put the District on notice of a disability.

9. An employee being disciplined has required or has used Family Medical Care Leave

within the prior year.

10. An employee is being disciplined for conduct which occurred off the job.

11. A disciplinary action against an employee would not be consistent with disciplinary

actions imposed against other employees similarly situated.

B. SEEK ADVICE FROM HUMAN RESOURCES/LEGAL COUNSEL IF THE

FOLLOWING LABOR/UNION EVENTS OCCUR:

1. Transfer of Bargaining Work:

a. The district wishes to assign work previously conducted exclusively by one

bargaining unit to an employee outside of that bargaining unit who has never

performed that work.

b. The district wishes to completely stop assigning work to employees of a

bargaining unit who have previously performed the work, yet continue to assign

the work to employees outside of that bargaining unit who also have previously

performed the work.

c. The district wishes to contract out to a private party work typically performed by

union employees.

2. Unilateral Change:

a. The district wishes to make any changes in operations, procedures, or practices

that may directly or indirectly have an impact on a bargaining unit member

without first negotiating the change with the appropriate bargaining unit.

b. The district is contemplating a reduction in workforce or a reduction in the hours

of a bargaining unit employee.

December 6, 2017


Page 33

3. Interference/Retaliation

a. Employees begin discussing or asking questions about changing unions or

certifying a new bargaining unit.

b. The District threatens, reprimands or wishes to take disciplinary action against

any employee (or applicant) who has recently (i.e., within the past 2-3 years) been

active or vocally involved in union matters, filed or been a participant or witness

to a recent grievance or unfair practice charge, or otherwise exercised rights

guaranteed under the EERA.

c. A union threatens or retaliates against its own employees or employees of another

bargaining unit because of union related matters (i.e., refusing to support a union

position)

d. The district is considering assisting or interfering with the formation or

administration of an employee organization, contributing financial or other

support to it, or in any way encouraging employees to join one organization in

preference to another.

4. Litigation

a. A union or unit member initiates the grievance process beyond the informal

meeting with his/her supervisor

b. A union or unit member threatens to file an unfair practice charge against the

District.

5. During Collective Bargaining

a. The District has any questions about what are mandatory, permissive, and

prohibited subjects of bargaining.

b. The District considers refusing a request to meet with a union.

c. The District considers refusing a request to discuss an issue or proposal.

d. The union refuses to meet with the District upon request.

e. The union refuses to discuss an issue or proposal requested by the District.

f. The District cannot immediately provide information that is requested by the

union (i.e., within 3-4 days).

g. The District does not wish to provide information requested by the union.

h. The District is uncertain as to the absolute accuracy of financial information it

provides to the union.

i. The District believes a union is stalling, undermining, or otherwise failing to

negotiate in good faith on a mandatory subject of bargaining.

j. The District is considering stalling, undermining, or otherwise failing to negotiate

in good faith on a mandatory subject of bargaining.

k. A union demands to negotiate a permissive subject of bargaining (e.g.,

management prerogatives).

l. A union proposes a contract clause during negotiation of a collective bargaining

agreement that would replace, set aside or annul a provision of the Education

Code (i.e., a prohibited subject of bargaining).

December 6, 2017


Page 34

m. A union attempts to cause or attempt to cause the District to commit an unfair

labor practice (e.g., attempting to negotiate issues which interfere with the rights

of other bargaining units)

n. The district wishes to back out of a previously-reached tentative agreement during

the negotiation of a collective bargaining agreement.

o. The district and union have reached impasse on a mandatory subject of

negotiation.

p. The district wishes to implement its last, best, final offer following the statutory

impasse procedure.

December 6, 2017


Page 35

NEGOTIATIONS CHECKLIST

Preparation for Negotiation ____ In-service training sessions for supervisors and administrators.

____ District philosophy regarding labor relations ____ Explanation of EERA, the District’s employer-employee organization

relations system, and relevant rules. ____ Role of administrators and supervisors in the process

____ Specify procedures for management input. ____ Specify procedures for keeping management informed as to the progress

of negotiations. ____ If there are one or more new members of the governing body, individual meeting(s) or

closed session to brief such new member(s). ____ Establish agency approach to labor relations. ____ Explanation of EERA, the agency’s employer-employee organization

relations system, and rules. ____ Background on unions, union officers, and history of negotiations. ____ How the process works; role of governing board members; closed

sessions; what to expect. ____ Developing negotiation data

____ Gather salary and other benefit survey data. ____ Other “comparable” schools/colleges and public entities ____ Private business in the area

____ Multi-year agreements in effect ____ Recent settlements ____ CPI ____ Compile current payroll costs for unit.

____ Unit “profile” ____ Number ____ By class ____ Single, one dependent, multiple dependents ____ Distribution on salary schedule

____ Total base wages ____ Total wage related by item (e.g. retirement, overtime, “incentive” pay etc.)

____ 1% factor ____ Total non-wage related by item (e.g. insurance, flat dollar premium pay,

etc.) ____ Cost of salary range movements in forthcoming year ____ Average unit wage ____ Paid leave time usage ____ Turnover

____ Review with management present or prior contract ____ What provisions adversely affect efficiency? ____ What provisions result in excessive grievances? ____ Problems caused by ambiguous provisions ____ Provisions restricting management’s right to act. ____ Unforseen costs ____ Excessive costs

____ Establish coordination channels with other pubic employers in area

December 6, 2017


Page 36

____ Coordinated positions? ____ Review each other’s negotiations, collective bargaining agreements, and

“brainstorm” new ideas. ____ Anticipating union demands. ____ Same demands by same union in another district. ____ Resolution passed at union convention. ____ Speeches by union officials ____ List of grievances filed Analyzing/Costing the Union Package ____ Cost impact of compensation and benefit items ____ Meeting with affected management to assess operations impact(s) of working condition

items. ____ Is there a real bona fide problem? ____ Is it a continuing problem? ____ Is it general in nature or specific and limited? ____ Will the proposal change the problem? ____ Is the proposal the same size as the problem? ____ Is the proposal free from unacceptable operating effects or unanticipated

costs, now or in the future, and does it infringe on management’s rights? ____ Is the cost reasonable in relation to the problem? Analyzing Union Negotiating Team ____ Learn as much as possible about the union’s outside negotiator ____ Check with other management negotiators who have dealt with him/her ____ Does the negotiator live up to his/her commitments? ____ What approach does he/she take in the negotiating process? ____ Will he/she control his/her committee or will they control him/her?

____ Quick settlement or will he/she wait until there is no other alternative? ____ Learn as much as possible about the union team members ____ Job ____ Employment history with the District ____ History of union involvement ____ Personality ____ Emotional? Militant? Reasonable? ____ Check with supervisors ____ Which item(s) in union package are of personal interest? ____ Any “special axe(s) to grind”? ____ How much influence ____ With leadership ____ With rank and file Establish Roles of Negotiating Team Members ____ Note taking responsibilities ____ Observe union team ____ Participation in at-the-table negotiation ____ Communicating with Chief Negotiator Establishing Negotiating Goals and Authority

December 6, 2017


Page 37

____ Under guidance and direction of Superintendent/President, thoroughly prepare an extended closed session with the Govenring Board to establish its role, general negotiating goals and review upper limits of overall authority

____ Explain process to Governing Board; the “whys” and “hows” of their policy direction role under it.

____ Provide Board members with all relevant information ____ Analysis of union package, including cost and other impacts ____ Survey data ____ CPI data ____ Other settlements ____ Budget data ____ Proposed goals ____ Proposed upper authority for total compensation package ____ Proposed positions on key non-economic policy issues Sunshining ____ Present initial proposal of both District and Union to the Board at a notice meeting ____ At a second board meeting, provide an opportunity for public comment on the District

and Union’s initial proposals (after a “reasonable” time) ____ Board approval of the District’s initial proposal at the second meeting (after public

comment) Establish Communication Procedures to be Followed During Negotiations ____ With Governing Board ____ With Superintendent/President and key managers ____ With District management and supervisors ____ Question of factual negotiation bulletins to employees Initial Meeting ____ Create constructive, friendly, professional atmosphere ____ Introductions ____ Basis for rapport between chief negotiators ____ Discuss negotiating procedures (ground rules) ____ Total union package?

____ Meeting schedules and locations ____ No “docking” of pay for reasonable number of employees during working

hours ____ Confidentiality until agreement or impasse? ____ Union communications to unit employees? ____ Tentative agreement procedure ____ Union negotiating team authority? ____ Union team recommendation. Ratification procedure. ____ Submission of agreement to Governing Body. ____ Set cut-off dates? Successor Meetings ____ Review union items

____ Ask who, what, where when, why and how questions to determine for each proposal…

December 6, 2017


Page 38

____ Basic thrust ____ Justification ____ Importance to union team

____ By questioning begin process of eroding employee expectations ____ Submit affirmative management proposals

____ Be prepared to assume good faith obligation to explain and justify. ____ Keep union team on management’s affirmative proposals ____ Management counter proposals ____ Seek to negotiate from own proposals ____ Initially resolve easier items ____ Set positive tone

____ But consider holding back in order to have enough to bargain with later on ____ Tradeoffs ____ Know your priorities ____ Determine union’s priorities ____ Determine areas of possible compromise

____ Maximize “ante” to get as much as possible from agency concessions (make union feel they won major victory)

____ Tactics: Depends on such factors as… ____ Personalities of negotiating teams ____ Relationship between chief negotiators ____ Agency’s employee relations atmosphere

____ Politics and political relationship between Governing Board and union ____ Significance of issue ____ Parties’ previous dealings ____ Respective negotiating objectives

____ Parties’ perception of detriment of no agreement compared to detriment of making concessions

____ Relative power factors ____ Negotiating approaches ____ Have a high aspiration level ____ Demonstrate good faith by: ____ Justifying positions

____ Treating union representatives with respect ____ Be flexible to meet changing circumstances and District concessions

(make union feel like they won a major victory). ____ Be alert to union team comments, facial expressions, “body language.” ____ Distinguish between union’s majority interests and vocal minority

positions ____ Negotiate significant money issues as a package

____ Tie together as many unresolved issues as possible at the time major issues fall into place

____ Clearly restate tentative agreements and reduce them to writing in clear language.

____ Maintain on-going communications with Superintendent and Governing Board to assure their positions are being clearly reflected.

____ Avoid ____ Being pressured into making a proposal or responding to

one on the spur of the moment. ____ Representing facts of which you are not sure.

December 6, 2017


Page 39

____ Making commitments you cannot keep. ____ Describing a proposal as the last, best offer unless you

mean it

December 6, 2017


Page 40

Presented for the California Public Employers Labor ... · overview of labor relations in the...

Documents

Transcript of Presented for the California Public Employers Labor ... · overview of labor relations in the...