OVERVIEW OF NEGOTIATIONS

Report
2014 MNA Academy
By: Robert T. Schindler
Lusk & Albertson, PLC
(248) 988-5696
[email protected]
Twitter: @LuskAlbertson
Download this presentation at
www.LuskAlbertson.com/MNAAcademy2014

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”
 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
 Management
• Roles of management:
 Board of Education
 Establish mission, goals, policies, procedures, and parameters
under which to operate the District
 Superintendent

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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
 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
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 The Training
Prep
Stage – Pre-Negotiation
 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
 Round
1 – Opening Presentations of
Proposals
 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
 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
 Final
Rounds – Tentative Agreement or
Impasse
• Impasse breaking tools – mediation and fact
finding
• “Work to rule” may occur
• Strike a possibility (although illegal)

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
 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.
 Teacher/Professional Unit
• Usual players – MEA or MFT
• Separate from “non-professionals”
• Generally includes non-certificated positions such
as:
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
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
Guidance counselors
Media specialists
Occupational or Physical therapists
Social workers and psychologists
Speech pathologists
Nurses
• Still community of interest?
 “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
 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.)
 Who
is excluded?
• Superintendent
• Executive Administrators
• Confidential secretaries
 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
 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
 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
 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)

Prohibited Subjects
• Those listed in section 15 of PERA (MCL 423.215)
 Examples

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
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



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Waiver of overtime or minimum wage (FLSA)
Union Shop (RTW)
Discriminatory clauses
Waiver of tenure
 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.)
 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.
 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
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.”
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!

 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.
 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
 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
 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

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