OVERVIEW OF NEGOTIATIONS

OVERVIEW OF NEGOTIATIONS2014 MNA AcademyBy: Robert T. SchindlerLusk & Albertson, PLC(248) 988-5696Rschindler@LuskAlbertson.comTwitter: @LuskAlbertsonDownload this presentation at www.LuskAlbertson.com/MNAAcademy2014

The Collective Bargaining Process

In the red corner . . . The UnionWhat are unions trying to achieve?Increase wages and fringe benefitsClarify and reduce duties and work hoursProtect those currently working in bargaining unitLimit, or gain input, into managements decision making process as it relates to the bargaining unitMaintain and grow membershipWhat is the unions role?Address divergent pressures from rank and fileGain influence for state organization and use it to steer legislationRally the troops

And in the Blue Corner . . .ManagementWhat is management trying to achieve?Hold down or reduce costsImprove work productIncrease flexibility of operations and ability to use unilateral discretion in decision-makingAbility to maintain or grow itself and the operation as it sees fitWho is included in management?Board of EducationSuperintendentExecutive Administrators including HR executive and/or Chief Bargainer

And in the Blue Corner . . .ManagementRoles of management:Board of EducationEstablish mission, goals, policies, procedures, and parameters under which to operate the DistrictSuperintendentCarry out the Districts mission and goalsDeal with community politicsSupervise staff (especially executive staff)Resolve conflictExecutive AdministratorsHelp develop issues, carry out the Districts mission, and support management teamAnd in the Blue Corner . . .ManagementRoles of managementChief NegotiatorLead negotiating team (at and away from the table)Represent the Board of EducationPrepare proposalsKeep Superintendent, Board of Education, and other necessary parties informed of progressRecommend 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 PrepEvaluate existing contract, policies, and proceduresReview financesLook over grievances and arbitration decisionsReview 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 processesMaintain and review file on problematic CBA provisions

Stages of negotiationsRound 1 Opening Presentations of Proposals

Stages of negotiationsRound 1 Opening Presentation of ProposalsGround RulesNeed not agree to ground rules, but if agreed to, they must be followedExchange necessary information, initial proposals, and rationales (discuss necessary goals)Posturing sizing each other up

Stages of negotiationsMiddle PhaseParties look for areas of agreementAreas of disagreement/priority become apparentPre-Crisis (Deadline) Stage: Economics Take PriorityManagement position becomes firmer on noUnion initiates pressure tactics.Parties begin to come toward centerSidebars become more prevalent and informal proposals introducedStages of negotiationsFinal Rounds Tentative Agreement or ImpasseImpasse breaking tools mediation and fact findingWork to rule may occurStrike a possibility (although illegal)Bargaining ModelsTraditionalAdversarial in natureQuid pro quoPressure tacticsUse of time crunchChief negotiator and bargaining team rolesUse of caucusesCollaborativeInterest-Based (integrative bargaining, win-win bargaining) parties collaborate for win-winExpedited restrict time and issues on the tableProgressive full disclosure bargaining early start, talk through each issue, early mediation/fact findingPublic employment relations act (pera)

Different Bargaining UnitsUnit decided on by the Michigan Employment Relations Commission (MERC)Individuals in unit must share a community of interestParties may seek unit clarification to add or remove positions from bargaining unit once the unit has been established.Different Bargaining UnitsTeacher/Professional UnitUsual players MEA or MFTSeparate from non-professionalsGenerally includes non-certificated positions such as:Guidance counselorsMedia specialistsOccupational or Physical therapistsSocial workers and psychologistsSpeech pathologistsNursesStill community of interest?Different Bargaining UnitsNon-Professional staff (non-certified, support, etc)Usual players MEA, AFSCME, UAW, Teamsters, etc.Largest appropriate unitCannot include supervisorsGenerally includes:Bus driversCustodians/MaintenanceFood serviceParapros/aides/hall or lunch monitorsSecretariesDifferent Bargaining UnitsAdministrative UnitUsual players MEA, but more often this will be an independent groupAgain, must be separate from those they superviseGenerally includes:Principals and ApsDirectors (i.e., special ed director, athletic director, etc.)Different Bargaining UnitsWho is excluded?SuperintendentExecutive AdministratorsConfidential secretariesThe duty to bargainMust bargain in good faith with regard to wages, hours, and other terms and conditions of employment section 15 of PERAMutual obligation of employer and unionMust bargain in good faithBargaining must agree to bargain over wages, hours and working conditions (mandatory subjects)Employer may not unilateral alter such mandatory subjects unless and until impasseImpasse

impasseMERC has described as the point where the positions of both parties have solidified to the point where further bargaining is futileMERC decides impasse based on totality of the circumstancesEmployer may implement last best offer on subject of impasseDoes not end duty to bargain, merely requirement to maintain status quoSubjects of bargainingMandatory subjects:Must bargain and may take to impasseWages, hours, and working conditionsExamples:Wages, COLABenefits insurance, vacations, holiday pay, etc.Grievance procedureWork rulesSchool Calendar (Expedited impasse, Modifications by statute)Class Size, conferences/planning time, and length of dayDuration of agreement

Subjects of bargainingPermissive subjectsMay bargain but cannot take to impasseManagement decisions fundamental to operation of enterpriseExamplesRate of pay for non-unit substitutesSeniority for those formerly in unitCurriculum or educational policy decisionsBargaining ground rules (again, if bargained you must live by them)

Subjects of BargainingProhibited SubjectsThose listed in section 15 of PERA (MCL 423.215)Examples1249 evaluation system1248 policy regarding personnel decisionsTeacher placementExperimental or pilot programsContracting for non-instructional support (must give union chance to bid)Illegal SubjectsThose that would require violation of statutesExamplesWaiver of overtime or minimum wage (FLSA)Union Shop (RTW)Discriminatory clausesWaiver of tenureUnfair labor practices

Unfair labor practicesViolations of section 10 of the PERAInterfering 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 activityRefusal to bargain in good faith (regressive bargaining, repudiation of the contract, direct dealing, etc.)Unfair labor practicesUnion unfair labor practicesRefuse to bargain in good faithRestrain 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 practicesCharges have a statute of limitation of 6 monthsDecided by the MERCFirst heard by an administrative law judgeAppealed to the full commission (MERC)3 member panelGiven jurisdiction over the PERA1994 Public Act 112PA 112 was a 1994 amendment to the PERAIts main purpose was to eliminate strikes, but made other changes as wellStrikes were illegal prior to PA 112, but still commonTo prevent strikes:Definition amended to include work stoppages done to protest real or perceived unfair labor practicesFines for each strike day for employee and unionManagement rights provisionA public school employer has the responsibility, authority, and right to manage and direct on behalf of the public the operations and activities of the public schools under its control.

1994 Public Act 112Added list of prohibited subjects of bargaining to the PERAIncorporated into section 15, and includes:Who is the policyholder of employee insurance plan (MESSA)Decision to allow inter or intra district open enrollmentContracting out of noninstructional supportDecision, staffing, or impact of experimental or pilot programs or use of technology in instructionSeveral more have been added since PA 112Know these prohibits subjects and use them. They are your friends!Freedom (Right) To WorkPublic Act 349 of 2012 effective March 28, 2013Makes it unlawful for anyone to:Compel anyone (through force, threats, or coercion) to join a labor union, financially support a labor union.Makes it unlawful for an employer to:Discriminate against an employee based on, or make a condition of employment, the support or membership in a labor union.

How the MEA and aft are organizedMEA dominated by full-time staff hired by the central organizationUniserv Directors Assigned by the MEA to regional areas to handle labor relations within their member districtsRegional Directors Cover larger area and supervise Uniserv Directors. Report directly to executive directorMFT Locally elected modelLocal leaders tend to determine goals and do bargaining. Staff reps only called in when neededTends to end up in more reasonable processImportant terminologyCollective BargainingTo meet and confer over terms and conditions of employmentFact-FindingNon-binding impasse breaking tool where an independent fact finder hears both sides and recommends a solutionGrievance ArbitrationBinding process by where a grievance (generally defined as an alleged violation of the contract) is brought before an independent 3rd party to determine who is correctImportant terminologyImpasseAs previously noted, is the point where the positions of both parties have solidified to the point where further bargaining is futileInterest ArbitrationSimilar to fact finding, but bindingIn Michigan it is part of the law for Police and Fire (Act 312 Arbitration), but not school districtsMediationNon-binding process whereby an independent third party is brought into negotiations to help to resolve issues and ease an agreementIts over! Questions?