Collective Bargaining in California Public Schools

Collective Bargaining in California Public Schools The bargaining process

Types of bargaining • When collective bargaining began in California schools, the traditional form of bargaining was what is sometimes called positional bargaining. • Each party came to the table with positions and often with language that they wanted to convince the other party to accept.

Traditional bargaining • The California Teachers Association had a full team of trainers with templates for language to be introduced at the table. • Employers who had previously held almost total control over the way school districts worked tried to either put current practice down in writing or to limit the number of items that would become codified in the contract.

Traditional bargaining • Under traditional bargaining, teams usually have a spokesperson who does most of the talking and break into caucuses when they want to privately react to offers or develop their own offers. • This form of bargaining is also known as positional bargaining and can become quite confrontational.

Interest-based bargaining • Due to the positional and often confrontational nature of traditional bargaining, another form of bargaining known as interest-based bargaining was developed. • In contrast to traditional bargaining where each group trains its own members, interest-based bargaining usually requires three days of joint training before bargaining begins.

Interest-based bargaining • Most training is under the auspices of either the Center for Collaborative Studies ccs@ccscenter.org, which encompasses what was once known as the California Foundation for Improvement of Employer-Employee Relations (CFIER) or • The California Teachers Association which also developed a training program used in many districts.

Interest-based bargaining • Under interest-based bargaining, the two teams meet together, identify common interests and then work to develop mutually agreeable solutions that meet those interests. • Trust is critical during negotiations and between the teams and those they represent. • Teams that become adept at interest-based bargaining apply the same principles to non-contract problem solving.

Interest-based bargaining • Interest-based bargaining is most effective at developing common solutions to issues within the contract. • It is not especially useful in resolving salary settlements and teams often resort to more typical positional bargaining on salary.

Alternative forms of bargaining • Other hybrid forms of bargaining that take pieces from positional and interest-based bargaining are sometimes used. • Districts with high levels of trust and collaboration have extended bargaining into areas not typically included in contracts, such as merit pay, assessment of student achievement, and alternative forms of evaluation.

Bargaining in good faith • Both the employer and the employee organization are expected to bargain in “good faith” in an effort to reach an agreement. • That means making an honest attempt to reach an agreement, meeting face to face at reasonable times, considering all proposals, reaching an agreement and generating a written version of that agreement.

Indicators that one party is not negotiating in good faith There are factors that PERB might see as indicators that one party isn’t negotiating in good faith: • Failure to respond or delaying tactics • Withdrawal of previously offered concessions • Regressive bargaining • Injecting significantly new proposals at advanced stages of bargaining • Lacking the authority to negotiate

Indicators of bad faith bargaining There are other factors that are more likely to be seen as indicators of bad faith bargaining: • An absolute refusal to bargain • Making unilateral changes in conditions of employment • Willfully providing inaccurate information or refusing to provide information • Conditioning proposals on waiver of rights • Bypassing the negotiators • Refusal to generate a written agreement

Unfair labor practices for employers Unfair labor practices for employers include: • Refusal to meet and negotiate in good faith with union representatives • Interference, domination or discrimination among unions • Interference with rights of employees or unions • Refusal to participate in impasses procedures

Unfair labor practices for employee organizations Unfair labor practices for employee organizations include: • Refusal to meet and negotiate in good faith with employer representatives • Causing or attempting to cause the employer to commit an unfair labor practice • Coercing, discriminating against, threatening reprisals or interfering with employees in exercise of their rights. • Refusal to participate in impasses procedures

Establishing a negotiation schedule • Both sides need to clearly develop their priorities and have collected as much information as possible before beginning negotiations • That doesn’t mean that you have to wait until the Governor signs the state budget, but it may mean that the focus in early negotiations is on contract language without a large financial impact.

Negotiating non-financial issues • There are many sections of the contract, including grievance procedures, leaves, transfers, reassignments and evaluation that don’t hinge heavily on finances and could be settled before compensation issues are addressed. • Be cautious about items that do have financial impact beyond salary, such as changing class size, adding preparation time or increasing stipends.

Preparing for and responding to common union strategies There are a number of common tactics that can undercut negotiations. Make sure that your management team and Board are aware of these before they occur so they can be addressed effectively.

Practices that can undercut negotiations • Direct interaction between union negotiators and the Board or individual Board members • Appeals sent out to parents through students, which is something that can be considered an unfair labor practice • Establishment of unrealistic expectations that cannot be met in the current financial situation • Attempts to call interim or final budgets fiction and guesswork. Be prepared to defend and explain the budget.

Union tactics during difficult negotiations If the contract negotiations drag on, expect these tactics: • The union encouraging teachers to “work-to-rule” by only working their required hours and failing to attend meetings, performances, athletic events or other activities in afternoons and evenings. This can sometimes work against teachers if student performances get cancelled. • Employee sickouts in which large numbers of teachers call in sick on a particular day, draining the sub pool and causing administrators to combine classes and or teach classes themselves.

Union tactics during difficult negotiations • “Informational” picketing in which the union tries to get a message to parents or Board members by carrying picket signs near a school, at a local shopping area or near the homes of Board members or the superintendent. At schools this usually means teachers from another school with a different dismissal time come to picket at a given school.

Communication before and during negotiations • Effective communication during negotiations is dependent on setting up an effective communication plan well before the negotiations get rocky. • There must be communication plans to assure that each of the stakeholder groups receives appropriate communication.

Communication when “Sunshining” your proposal • An often missed opportunity to share the district’s stand on key issues is when the positions are shared and “sunshined” at a Board meeting. Districts often let this opportunity slide by just listing briefly the topics to be covered. Take the time to show how your core values and principles are the source of your positions.

Communication with employees • Since they are the people represented by the organization across the table, communication with the district employees needs to be firmly in place. • Frontload employees with the facts through written communication and your website early and often so that when the union issues their version of the facts, there will at least be two versions for employees to consider rather than to simply accept the union information.

Communication with employees • The employees need to know that steps and columns have already used some of the new money or that special education is taking more of the funding or that declining enrollment is impacting the available money. • Be sure that you are communicating clearly about your full educational program and everything else going on in the district so you don’t give the impression that negotiations are the only thing you’re dealing with.

Communicating with parents and the community • Parents are a little tougher to reach but establishing an informative and dynamic website is a good place to start. • Regular communication through email or notes should also be something that is done from the outset and not just done when things get rough.

Establishing a good working relationship with local media • An excellent way to communicate with the community is through a regular column in the local newspaper, usually something featuring monthly updates from the superintendent. If you don’t have such a column, work with your local paper to establish one.

Establishing a good working relationship with local media • Education reporters are usually fairly low on the pecking order and may not have much expertise on education when they take over. • Do all you can to inform and educate reporters, much as you inform and educate new Board members. A study session with the local editor and the education reporter can pay dividends later when stories demonstrate an understanding of your program and positions.

Communication with your management team • Don’t forget to keep your management team in the loop. • They don’t need every detail, but should know the basic positions being discussed and the rationale for district positions. • They need to feel like their input is valued, even if they’re not sitting at the table.

Communication with your management team • Ideally, the management team can be the eyes and ears of the district, keeping you informed about what is being said by the average employee. • They should know enough to squelch rumors and misinformation, but should defer to the designated public spokesperson for the district if there are serious negotiation questions.

Communication with the Board of Trustees • The Board of Trustees needs to be fully informed and involved in the core values and principles that are established at the outset of negotiations and need to understand the basic positions being taken by the negotiation team. • The Board shouldn’t hear every detail of what was said at the table, but they should know positions that are being championed by either team and understand the underlying issues.

Communication with the Board of Trustees • Study sessions early in the process can be done at open meetings that might bring employees or the public in to again hear your explanations and standards for negotiations. • During negotiations, you can talk about negotiations in closed session or even call special closed session meetings with negotiations as the only topic.

Confidentiality and unfair labor practices • Honor the confidentiality of negotiations by not sharing out the more outrageous things people say or propose during negotiations. • However, you are not breaking confidentiality, or performing an unfair labor practice, by sharing the positions you are taking at the table and your rationale for those positions. Don’t be afraid to communicate.

The Board inserting itself into negotiations • The Board should give you direction and parameters to work within, but should not get directly involved in negotiations. • Discourage separate conversations between representatives of the union and individual or pairs of Board members.

The Board inserting itself into negotiations • Board members need to know from the start that they should redirect the union back to the table for negotiations and that at most they should only listen to input. • Individual board members have no authority to do anything and board members in general need to be sure that they never grant promises or assurances of a certain outcome at the table.

Don’t take it personally • One of the most difficult things to remember is to not take what goes on during negotiations personally. • Keep the focus on the issues and don’t let the emotions move you away from core values and principles. • Reasonable people will say and do very unreasonable things during difficult negotiations and then go right back to being those valued employees you once knew.

What’s your BATNA? • The Best Alternative To a Negotiated Agreement (BATNA) is a term that came from interest-based bargaining to describe the best thing you can do if you don’t settle the contract. • This is something you need to fully develop so you have something to weigh offers against. Sometimes you are better off to stick with your BATNA instead of accepting an unreasonable attempt to resolve a contract.

Impasse and mediation • First of all, remember that impasse, mediation and factfinding are attempts to end negotiations, and aren’t the end of the world. • Accept them and prepare for them as simply part of the negotiation process.

Impasse • Impasse is reached when the parties have reached a point in negotiations where negotiations have been so prolonged or differences are so substantial that agreement doesn’t seem possible. • Either party can request that PERB appoint a mediator to come in to help resolve the differences.

Impasse • PERB will review the number and length of bargaining sessions, the extent to which the parties have presented and discussed counter proposals and reached tentative agreements and the extent to which issues are still unresolved and appoint a mediator if they agree it is necessary. • There are only a few available mediators, so this process can take some time to even begin. • Negotiations can continue during impasse.

Impasse • The mediator will generally begin with the two teams in one room so he or she can hear the unresolved differences and get a feel for how the teams are working, or not working, together. • After the initial joint meeting, the majority of mediation time occurs with the two teams in separate rooms and the mediator traveling back and forth between the two groups, carrying offers and encouraging concessions.

Impasse • The impasse process is advisory only so the mediator can only try to encourage settlement and work with the two teams to come up with creative solutions that haven’t already been tried. • The mediator can choose to come back for further sessions or can reach a point where he or she doesn’t believe resolution is possible and can certify the process on to factfinding.

Factfinding • Factfinding is the last step in the collective bargaining process. • Under factfinding, each party chooses one panel member and PERB appoints a neutral chairperson to run the factfinding panel. • Each team is asked to present a case and share specific information with the panel.

Information for factfinding panel In preparation for the presentation to the panel, each team needs to prepare input on: • Applicable state and federal laws • The current agreement and any MOU’s • The “interests and welfare of the public and the financial ability of the public school employer.” • A comparison of wages, hours and conditions of employment with comparable communities • The consumer price index for goods and services • The overall compensation of employees • Any other important facts like parcel taxes, foundation support and other local funding

Panel findings • Just as in impasse, negotiations can continue during factfinding • At the end of its review, the chairperson will issue his or her findings and allow the other members to share their agreement or disagreement with the findings • The findings must be made public within ten days, but they are not binding on either party

Still no resolution • If there is still no resolution after factfinding, the district can unilaterally implement its “last, best and final offer.” • After factfinding, the union can consider taking a strike vote.

Teacher strikes • A teacher strike is a rare, but exceptionally disruptive event. • Plans need to be made well in advance to hire enough substitutes and to keep the educational program running as smoothly as possible during the strike. • More details will be contained in a strike manual that will be updated by ACSA.

Collective Bargaining in California Public Schools