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A Question of Balance…The Art of
Contract NegotiationsPresented by:
Darren G. Kermes Superintendent
SouthWest Metro Intermediate 288(952) 567-8102
Materials and Presentation
Developed By:
Greg VandalVox Liberi and PEER Solutions
Where are we going…
§ PELRA§ Two Approaches in Contrast§ Traditional Bargaining§ Interest Based Bargaining§ A Hybrid to Consider?§ Questions§ Wrap-up
PELRA (179A.01-25)§ Public Employment Labor Relations Act§ Purpose: To promote orderly and
constructive relationships between all public employers and their employees
§ Grants public employees the right to organize§ Requires public employers to meet and
negotiate
PELRA Public Policy (179A.01)§ Requires the result of bargaining to be in
written agreements§ Establishes special rights, responsibilities,
procedures, and limitations regarding public employment relationships
PELRA Definitions (179A.03)§ Unit - a classification of employees (teachers, etc.)§ Exclusive representative - a “certified” employee
organization authorized to meet and negotiate with the employer on behalf of all employees in the unit.
§ Meet and Negotiate - mutual obligation to meet at reasonable times with the “good faith intent” to enter an agreement on terms and conditions of employment.
§ Strike - a “concerted action in failing to report for duty…for purposes of inducing, influencing or coercing a change…”
PELRA Definitions• Teacher - any public employee other than a
superintendent or assistant superintendent, principal, assistant principal, or a supervisory or confidential employee, employed by a school district:(1) in a position for which the person must be licensed by the Professional Educator Licensing and Standards Board or the commissioner of education; or(2) in a position as a physical therapist, occupational therapist, art therapist, music therapist, or audiologist.
PELRA DefinitionsTerms and Conditions of Employment – means:• the hours of employment, • the compensation therefor including fringe benefits
except retirement contributions or benefits other than employer payment of, or contributions to, premiums for group insurance coverage of retired employees or severance pay, and
• the employer's personnel policies affecting the working conditions of the employees.
• In the case of professional employees the term does not mean educational policies of a school district.
Employee Rights (179A.06)§ Express views so long as they do not interfere with
duties of employer§ Organize: form and join (or not)§ Meet and Confer regarding policy matters other
than terms and conditions of employment§ Meet and Negotiate terms and conditions of
employment
Fair Share Fees and Janus§ On June 27, 2018, the United States Supreme Court
decided Janus v. AFSCME Council 31.§ The Court ruled that public-sector employers and unions may
not require that an agency fee, or any other payment to a union, be withheld from a non-union member’s paycheck, unless the nonmember clearly and affirmatively consents to the payment.
§ This decision had far-reaching consequences on public-sector employers and unions in Minnesota.
See https://ratwiklaw.com/index.php/2018/07/10/faq-supreme-courts-recent-fair-share-janus-decision/
Employer Rights (179A.07)§ Inherent managerial policy - no requirement to
negotiate:§ organizational policy, § budget, § organizational structure, § personnel selection and placement,§ number of personnel
§ Expressly restricts adoption of contract language which “limits (employer’s) right to select persons to serve as supervisory employees…or requires the use of seniority in their selection.”
PELRA - Unfair Labor Practice (Employee)
179A.13 Subd. 1§ Restricting employer rights under PELRA§ Improper involvement in the election of
board representatives who will meet and negotiate
§ Refusal to meet and negotiate in “good faith”§ Engagement in an unlawful strike
PELRA - Unfair Labor Practice (Employer)
179A.13 Subd. 2§ Restricting employee rights under PELRA§ Involvement/interference in formation,
existence, administration of an employee organization
§ Hiring practices related to employee involvement in employee organization
§ Refusal to negotiate in “good faith”
PELRA - Negotiations Procedures
179A.14§ Written notice given by exclusive
representative at least 60 days before expiration of current agreement
§ Joint negotiations are permitted (arena bargaining)
§ All negotiations sessions are public meetings except as called out specifically by the Commissioner
PELRA – Dispute Resolution
§ Mediation 179A.15§ Interest Arbitration 179A.16
§ Conventional§ Final-Offer Total Package§ Final-0ffer Item-by-Item
§ Strike authorization 179A.18
PELRA – Core Contract Provisions
179A.19 § No Contract Provisions Contrary to Law§ Duration Shall Not Exceed Three Years
§ Teachers Two Years§ Must Include Grievance Procedures§ Terms of Contract Continue In Effect
After Expiration and Prior to Strike
A Quest for Serenity!Grant me the serenity to accept the things
I cannot change, the courage to change the things I can, and the wisdom to know
the difference.
Reinhold Niebuhr
Three Stages of Truth/ChangeThe process of acknowledging a truth is broken down into three stages:
The first stage is ridicule. When a new idea or concept is brought up, it’s so strange that it’s completely absurd. People cannot fathom this idea and how it fits into their lives, so they simply laugh at how impossible it seems.
The second stage is opposition. After a new concept hasn’t made it past the first stage, people begin to worry that it’s here to stay. A few might support the concept, but most will resist because they see it as a threat to everything they’re familiar with.
The third stage is self-evident. There is increasing evidence that supports the idea, which goes from having a few early supporters to entering the mainstream. A majority of people support the fact and come to accept it as a given.
19th century German philosopher Arthur Schopenhauer
Two Basic Approaches…
§ Traditional (Positional) Bargaining
§ Interest Based (Principled) Bargaining
Key Definitions - Both Types§ Issue: The problem at hand; the subject under discussion.§ Interest: A concern expressed by either party. The reason the
issue is being brought up. Interests may be separate or mutual (concern by both parties).
§ Option: A potential solution to the problem expressed by either party. These are typically explored as a part of IBB.
§ Position: A proposed solution to an issue or problem. How the issue should be resolved, according to either party.
§ Proposal: An “official” offer made by either party which reflects that entity’s position(s). These are typically framed as a part of traditional negotiations.
Key Definitions - Both Types
• Iterest Based Collective Bargaining• Focused on issues and options.
• Traditional/Positional Bargaining• Focused on positions and proposals
The Ritual: Side by Side…PositionalBargaining
Disputants are adversaries
Goal is victory
Demand concessions
Dig into Position
Interest BasedBargaining
Disputants are joint problem-solvers
Goal is a wise decision
You work together to determine who gets
what
Focus on interests, not positions
The Ritual: Side by Side…(cont.)PositionalBargaining
Mislead, use tricks
Insist on your position
Apply pressure
Look for win for you alone
Interest BasedBargaining
Be open about interests, use fair principles
Insist on objective criteria, consider multiple answers
Use reason, yield to principle, not pressure
Look for win-win opportunities
Traditional (Positional) Bargaining Basics§ Structured and predictable process§ Strategy involves “fair” exchange§ Fixed ideas or positions held/defended§ Movement toward compromise can be move to the
middle§ As a result, extreme (padded) positions often initially
adopted§ Focus in on Positional Interests§ Compromise may be best aim rather than agreement
on issues
Traditional (Positional) Bargaining Basics
§ TeamsManagementUnion
RolesChief negotiatorBargaining historianLegal counsel??
§ MechanicsExchange proposalsDiscussionClosed caucusCounterproposalsAgreementImpasse resolutionImplementation
Interest Based Bargaining BasicsStep 1: Identify the problem§ What is the issue or problem?§ Why is it a problem?§ What are its possible causes?§ What are the effects on the organization?
Step 2: Discuss all interests behind the issue§ What are management’s interests (the supervisor’s
interests)?§ What are labor’s interests (the employee’s
interests)?§ Which are mutual, conflicting interests?
IBB Basics, cont. Step 3: Set criteria§ What are the standards or criteria for a good
solution?§ What are the priorities for the criteria?
Step 4: Develop solutions (options)§ List all potential solutions.§ Evaluate solutions versus criteria list.§ Agree on solution(s) that best meet(s) criteria
Interest Based Bargaining Structure
§ TeamsManagementUnion
RolesTeam discussion leaderDiscussion historianDiscussion participantLegal counsel??
§ MechanicsIdentification of issuesPrioritization of issues (optional)Development of working planw/issuesOpen “caucus”Identification of optionsAgreement on solutions(Impasse resolution)Implementation
Getting to Yes, the Foundation of IBB
§ Roger Fisher, William Ury, Harvard Negotiation Project 1981 – “Principled Negotiation”
§ Three ways to measure negotiation method:§ Does it produce a wise agreement?§ Is it efficient?§ Does it improve or “hold harmless” the relationship?
Interest Based Process Flow§ Training§ Establish Ground Rules (Process Agreement)
§ Dates, Times, Locations (in advance)§ Food§ Media§ Participants and Resources§ Agendas§ Set Standards
§ Identify Issues§ Take Turns Sharing§ Try to Consolidate
§ Develop and Share Interests§ Brainstorm Options§ Reach Agreement
Interest Based Process - Issues
ISSUE: # 1 How do we recruit and retain high quality staff?ISSUE: # 2 Professional DevelopmentISSUE: # 3 Wages/Compensation/InsuranceISSUE: # 4 Supplemental RetirementISSUE: # 5 SafetyISSUE: # 6 Illness/Bereavement/Personal LeaveISSUE: # 7 Housekeeping
Interest Based Process - InterestsINTERESTS OF UNION INTERESTS OF MANAGEMENTCompetitive compensation. Recruit highly qualified and talented staff.Stronger mentorship program. Retain highly qualified and talented staff.Tuition support to meet student district needs. Ensure quality instruction and services for students.
Recognize additional education obtained during time of employment.
Retain a blend of veteran staff to mentor and train new staff.
Maintain quality programs. Maintain fair compensation for all staff.Maintain adequate staffing. Ensure expenditures do not exceed revenue.
Maintain cost effective programs.Maintain solid entry level salary to insure recruitment of best qualified entry level teachers.
Retain and expand mentoring program.Encourage ongoing professional development.Achieve benefit package supported by member districts.
Encourage current non-member districts to participate in our programs.
Fair and equitable insurance contributions for all employees.
Be cost competitive so we don’t lose or recruit staff to or from member districts based largely or solely on compensation factors.
Be cost competitive so we retain or possibly add member districts.
Interest Based Process - Standards§ Identified in process agreement
§ May be developed Issue-by-Issue
Legal, Easy to understand, Practical, Acceptability, Fairness, Industry Practice, Common Area Practice, Internal Practice, Trends, Historical Practices, Equitable.
Interest Based Process - Options1. Training program for mentors.2. Enhanced compensation for mentors.3. Limit number of mentees per mentor.4. Consider multiple buildings vs single buildings in mentor assignments.5. Write a mentor/mentee mission/vision statement.6. Be more visible in recruiting at regional colleges/universities.7. Look within current team to “grow our own” professionals in low incidence/hard to find areas.8. “Finder’s Fee” bonus for recruiting hard to find staff.9. Partner with colleges/universities to recruit student teachers.10. Design a paraprofessional program under CTE to encourage current students to become paras.11. Signing bonus for hard to fill positions.12. Granting additional steps for hard to fill areas in lieu of experience.13. Provide more opportunity for supervisors to be able to do team building within all programs they are responsible for.14. Move starting step to Step 2.15. Involve teachers and professional staff with administrators in the interviewing process.
Interest Based Process - Agreement§ Produce a TA (Tentative Agreement) for Each Issue
§ All participants sign off§ Copies made and distributed§ Celebrate (literally) each TA
The parties agree to implement an MOU regarding mentoring as attached.
Article VII, Section 1, Subdivision 2 is amended to read:Subd. 2. Longevity Pay:
a. Full-time teachers entering their first year of tenure will receive a $1,000 one-time only stipend payable in September of the teacher’s first year of tenured employment. The one time stipend payment above shall be deposited into a 403b plan selected by the teacher. This one-time deposit does not require an employee matching contribution. The teacher may request a cash payment in lieu of the 403b deposit by notifying human resources on or before June 30th prior to their first year as a tenured teacher.
b. Full-time teachers, employed by either CSEC or MRVSEC prior to June 30, 2010, entering the 10th 8th
(eighth) consecutive year of employment will receive a $1,000 one-time only stipend payable in September of the 10th (tenth) 8th (eighth) year of employment. The one time stipend payment shall be deposited into a 403b plan selected by the teacher. These one-time deposits do not require an employee matching contribution.
A Hybrid: Adapting the IBB Approach to Traditional Bargaining
Preparation Phase§ Make sure your side is committed to using the
process§ Before bargaining team is picked, get approval to use IBB to
ensure it will not be derailed.
§ Make sure the other side agrees to use the process§ Reflect the agreed approach in ground rules.
§ Orient everyone on IBB § Everyone must be trained
§ training is available free from BMS
Adapting the IBB Approach, cont.
§ Incorporate traditional preparation techniques with IBB§ Drill down hard on issues§ Identify criteria§ Invent options – stop short of proposals§ Use IBB within the team as well as with the other side§ “Proposals” can be crafted in the form of criteria.
Determine “easy” issues versus “tough” issues; identify issues most susceptible to quick, amicable resolutions
§ Decide where IBB will fit best§ Consider IBB for non-financial language; traditional for
the rest
Parting Thoughts§ Best part of using traditional is that it provides a “safe”and/or “predictable” process§ IBB can be riskier
§ Worst impact of traditional may be the negative effect on the relationship§ IBB tends to maintain or even build relationships
§ IBB is flexible enough to use as a:§ Comprehensive process§ A “part time” tool in conjunction with traditional § An intra-team technique for identifying your most
important needs to develop traditional proposals§ Knowing the primary interests of both parties is essential –
IBB helps§ The end is really the beginning of the next round!
Resources§ Getting to Yes, 2nd edition, Roger Fisher, William Ury,
Bruce Patton, Penguin Books, 1991 (rev 2011)§ The Bargaining Book, 5th edition,
Phillip A.Varnak, FPMI Solutions, Inc., 2003§ Minnesota School Board Association Management
Services Manual (hard copy or web-based services)§ Minnesota Statute 179A.01-179A.025 (PELRA)