OVERVIEW OF NEGOTIATIONS

1. OVERVIEW OF NEGOTIATIONS 2014 MNA Academy By: Robert T. Schindler Lusk & Albertson, PLC (248) 988-5696 Rschindler@LuskAlbertson.com Twitter: @LuskAlbertson Download this presentation at www.LuskAlbertson.com/MNAAcademy2014

2. The Collective Bargaining Process

3. In the red corner . . . • 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. And in the Blue Corner . . . • 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. And in the Blue Corner . . . • 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. And in the Blue Corner . . . • 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 • 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

9. Stages of negotiations Round 1 – Opening Presentations of Proposals

10. Stages of negotiations • Round 1 – Opening Presentation of Proposals • Ground Rules • Need not agree to ground rules, but if agreed to, they must be followed • Exchange necessary information, initial proposals, and rationales (discuss necessary goals) • Posturing – sizing each other up

11. 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 becomes firmer on “no” • Union initiates pressure tactics. • Parties begin to come toward center • Sidebars become more prevalent and informal proposals introduced

12. 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)

13. 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

14. Public employment relations act (pera)

15. 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.

16. 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?

17. 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

18. 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.)

19. Different Bargaining Units • Who is excluded? • Superintendent • Executive Administrators • Confidential secretaries

20. 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

21. Impasse

22. 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

23. 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

24. 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 (again, if bargained you must live by them)

25. 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

26. Unfair labor practices

27. Unfair labor practices • 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.)

28. 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.

29. 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

30. 1994 Public Act 112 • PA 112 was a 1994 amendment to the PERA • Its main purpose was to eliminate strikes, but made other changes as well • Strikes were illegal prior to PA 112, but still common • To prevent strikes: • Definition amended to include work stoppages done to protest real or perceived unfair labor practices • Fines for each strike day for employee and union • Management rights provision • “A 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.”

31. 1994 Public Act 112 • Added list of prohibited subjects of bargaining to the PERA • Incorporated into section 15, and includes: • Who is the policyholder of employee insurance plan (MESSA) • Decision to allow inter or intra district open enrollment • Contracting out of noninstructional support • Decision, staffing, or impact of experimental or pilot programs or use of technology in instruction • Several more have been added since PA 112 • Know these prohibits subjects and use them. They are your friends!

32. Freedom (Right) To Work • Public Act 349 of 2012 – effective March 28, 2013 • Makes 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.

33. 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

34. Important terminology • Collective Bargaining • To meet and confer over terms and conditions of employment • Fact-Finding • Non-binding impasse breaking tool where an independent fact finder hears both sides and recommends a solution • Grievance Arbitration • Binding 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 correct

35. Important terminology • Impasse • As previously noted, is the point where the positions of both parties have solidified to the point where further bargaining is futile • Interest Arbitration • Similar to fact finding, but binding • In Michigan it is part of the law for Police and Fire (Act 312 Arbitration), but not school districts • Mediation • Non-binding process whereby an independent third party is brought into negotiations to help to resolve issues and ease an agreement

36. Its over! Questions?