ACSA’s 2015 Symposium for Negotiators & Negotiation Teams

INTEREST-BASED BARGAINING

JANUARY 14th, 2015

Presented byMichelle L. Cannon, Shareholder

Ryan Davis, Assistant Superintendent,Western Placer Unified School District

HOW DID WE GET HERE?

Background of Traditional CollectiveBargaining and Statewide MovementTowards Interest-Based Bargaining.

A. Federal/Private Sector and State/Public Sector.

1. The National Labor Relations Act of 1935 (NLRA) and Labor Management Relations Act of 1947 (LMRA) were both sources of California’s Rodda Act for public schools in 1976.

2. Distinct Bargaining Units

a. Division among the workplace; different bargaining units, “thinkers” v. “doers.”

Distinct Bargaining Units (cont.)

b. Union-management cultures on different “planets”; hierarchical v. egalitarian; salary

v. hourly rate; open-ended commitment v. time clocks, contractually structured

workday/workyear.

3. Limited Scope of Bargaining

4. Unfair Labor Practice Enforcement Mechanism

5. Duty to Bargain in “Good Faith” – Not to Reach Agreement

a. Positional approach.

1. Each side starts by taking positions.

5. Duty to Bargain in “Good Faith” – Not to Reach Agreement (cont.)

2. Positions are not genuine – each side must “build in” room to compromise to avoid per se unfair

labor practice.3. Table teams prepare separately.

5. Duty to Bargain in “Good Faith” – Not to Reach Agreement (cont.)

4. Meet at table, table discipline imposed, caucus for decision making, reach tentative agreements, final agreement, or impasse.

5. Duty to Bargain in “Good Faith” – Not to Reach Agreement (cont.)

5. If talks break down, impasse mechanism with assistance of mediation. Pressure tactics, (strike, slowdown, work to rule, picketing, leafleting, etc.) and/or unfair labor practice charges by exclusive representative; counter-

pressure tactics (delay, impasse, unfair labor practice charges, public campaign, etc.) by

employer.

5. Duty to Bargain in “Good Faith” – Not to Reach Agreement (cont.)

6. Ultimate failure to resolve bargaining brings public sector fact-finding and/or intensified pressure and counter-pressure tactics. In private sector, strike and replacement of strikers issues.

5. Duty to Bargain in “Good Faith” – Not to Reach Agreement (cont.)

7. Management may theoretically adopt “last-best” offer.8. Power and leverage are the key methods of traditional bargaining resolution.

New Approaches in the Private Sector (1980s)

Foreign and domestic competition leads to search for different ways of doing business.

“Getting to Yes.” Harvard Negotiations Project.

1989 PERB SURVEYGood Relationships Tended to Include:

Mutual commitment to solving problems. Readily sharing information with each other. Listening to each other with open minds and a

willingness to understand the other’s point of view. Trusting each other’s word.

1989 PERB SURVEYPoor Relationships Tended to Include:

Key individuals who have hurt the relationship. One of both parties not skillful in the practice of good

labor relations. Inability to count on information being correct. Little or no employee involvement in decision-making.

State/Public Sector

PERB survey (1989) PERB workshops (1989-1990) “Win-Win” trainings (1990’s) CFIER successor to PERB (1990-present).

CTA/Management Training (1992-present). Training continues statewide.

IBB Right For You?

What are your goals? How are your relationships? What issues do you need to address? How much time do you have? Can you invest in training?

Key Principles of IBB from “Getting To Yes”

Don’t bargain over positions Separate the people from the problem Focus on interests not positions Invent options for mutual gain Insist on using objective criteria

IBB Assumptions

Bargaining enhances the parties relationships Both parties can win in bargaining Open discussion expands areas of mutual interests

and thus options Mutually developed standards for evaluating options

can move decision making away from a reliance on power.

Elements of IBB

Define the problem Discuss the situation Interests Options

Brainstorming Alternatives BATNA Standards Fitting it all together to

reach consensus.

Problem/Issue

Develop a list of issues Decide what to work on first

Discuss the Situation

Develop description of the facts of the situation Complete any needed research

Interests

The underlying motivation for what the parties want out of negotiations

The answer to the question, “Why?”

AUTOMOBILE DIALOGUE #1

OPTIONS

Possibilities that require agreement of both sides Brainstorming options produces more options than

one person or side can produce in isolation

OPTIONS

Potential solutions to the issue/problem.

The goal of “brainstorming” options is to unlock the creativity of participants in the negotiations/problem solving.

The option or combination of options which best meets the most interests will result in a consensus resolution of an issue/problem.

OPTIONS (con’t)

“To invent creative options, then you will need (1) to separate the act of inventing options from the act of

judging them; (2) to broaden the options on the table rather than look for

a single answer; (3) to search for mutual gains; and (4) to invent ways of making their [group] decisions easy.”

AUTOMOBILE DIALOGUE # 2

BRAINSTORMING

Brainstorming allows participants to propose creative suggestions to resolve an issue/problem without (ideally) criticism, evaluation, or ownership.

BRAINSTORMING (cont’d)

Brainstorming Techniques: Open Person to Person Paper Method

Alternatives

What you can do on your own without agreement of the other side

Alternatives are far more limited than options

BATNA

BATNA = Best Alternative To a Negotiated Agreement

It is your best choice of action to take if you cannot reach agreement

Is it better than or worse than the negotiated options?

Don’t forget the relationship part of the equation

Standards/Criteria

Identify some objective standards/criteria before getting too far into the options

Data can help the parties assess if the option is reasonable

LCFF “Standards” – codes, state priorities, LCAP Look at the standards a fact-finding panel would use,

as examples

Fact-Finding CriteriaGovernment Code §3548.2

1. Applicable state/federal laws2. Stipulations of the parties3. Interests/welfare of public and financial ability of

district4. Comparison with similar positions in similar districts

Fact-Finding Criteria (cont’d)

5. Consumer Price Index6. Overall compensation currently received by

employees, including benefits7. Other facts normally taken into consideration

“STRAWMAN” FORMAT OR SUBCOMMITTEE REPORT

Group delegates task(s) to subcommittee, subcommittee drafts “framework” agreement which then may become an option.

DECIDING UPON A CONSENSUS OUTCOME

The resolution of theissue/problem is reachedby consensus.

Deciding Upon A Consensus Outcome

The resolution of the issue/problem is reached by consensus.

The by now almost standard definition of consensus in the interest-based contest is:

“Everyone in the group supports, agrees to , or can live with a particular decision. In the end, everyone can say: ‘I believe you understand my point of view. I believe I understand your point of view. Whether or not I prefer this decision above all others, I will support it because it was reached fairly and openly.’”

(W. Ouchi)

CONSENSUS DECISION-MAKING TECHNIQUES

BRAINSTORMING OPTIONSThe initial stage of creating options.

COMBINING OPTIONSA group member proposes a new combined option.

CONSENSUS CHECKSThe facilitator or group member asks for consensus check.

WEIGHTED VOTINGEach group member assigned a number of “votes” to cut down

options.Options with the most support remain.

MATRIX COMPARING INTERESTS TO OPTIONS OR CRITERIA/STANDARD TO OPTIONS

STEPPING BACK FROM OPTIONS MAY HELP RESOLUTION

Helping Forces What are the forces

assisting resolution of the problem?

Hindering Forces What are the forces

frustrating resolution of the problem?

STEPPING BACK FROM OPTIONS MAY HELP RESOLUTION (con’t)

Secret Ballot Each group member is asked to anonymously record his/her

honest assessment of the problem on a piece of paper. The facilitator/record writes the results on the flip chart.

Visioning The group “brainstorms” the perfect solution.

Fishbone Analysis What are the causes and what are the effects of the

problem? Elephant

Is there an elephant in the room?

IBB Meeting Protocol

Check-in Rumor control [optional] Set agenda by consensus Prioritize Agenda Work through each item (table as necessary) Next Agenda Check-out (plus/delta)

[Process check requested as necessary]

Questions/Closure