Transcript Negotiations

Collective Bargaining
(aka negotiations)
Chris Berry
NFFE-FSC Vice-President
WO and WO-Detached Units
Outline
• What and why we bargain
• How we bargain
– Traditional
– Interest-based
• Drafting agreements
• Master Agreement framework for
bargaining
Why Bargain?
• The Federal Labor Statute gives us the
right to bargain.
• We are a BARGAINING unit.
• We bargain to change or influence the
working conditions of our bargaining
unit.
• The Master Agreement provides
guidance on how we conduct midterm
bargaining.
When can we bargain?
• Term bargaining – Refers to bargaining the
primary contract at the end of each term of the
contract. For Forest Service, this is the Master
Agreement.
• Midterm bargaining – Bargaining that occurs
during the life of the primary contract.
– Management proposes a change
• Substance
• Procedures and Appropriate Arrangements
– Union proposes a change
Management-proposed change
on bargainable topic
• If the proposal does not involve
management reserved rights we can
bargain the “substance” of proposal
• If management chooses to bargain on
permissive subjects, we also can bargain
on substance.
• Examples of substantive bargaining
topics:
– Parking issues
– Office space
– Membership on a safety committee
– Core hours
Management-proposed change
on reserved management rights
• 5 USC 7106(b)Nothing in this section shall
preclude any agency and any labor
organization from negotiating-– (2) procedures which management officials of the
agency will observe in exercising any authority
under this section; or
– (3) appropriate arrangements for employees
adversely affected by the exercise of any authority
under this section by such management officials.
Management-proposed change
on reserved management rights (cont’d)
• “Procedures and appropriate arrangements
bargaining” also called “impact and
implementation bargaining” or I&I.
• Arrangements for employees impacted by the
change only
• Examples of procedures and appropriate
arrangements bargaining:
– Merit Promotion Procedures
– Process for placement of employees during
reorganization
– Performance management system
– Training related to changes mandated by
management
Union-Proposed Changes
• Why would a Union make a proposal for
bargaining?
Union-Proposed Changes
• Why would a Union make a proposal for
bargaining?
• During the life of the contract, the Union can
propose any change that
– Does not interfere with management rights
– Is not covered by the Master Agreement
– If covered by the Master Agreement, has been delegated to
lower levels for negotiations.
• Examples
–
–
–
–
Parking
Availability of refrigerator and microwave for breaks
Policy about children at work
Fitness facility
Scenario 1
• An employee comes to you, their Union representative,
with a problem about a leave request. A month ago, he
e-mailed his supervisor to let her know that he would
like to take next Friday off. Two weeks ago, he asked
her about the request, and she responded that she
needed to have it on a leave form and then she would
consider it. He still has not gotten an answer.
• You talk to the supervisor and take care of the issue for
the employee, so he is able to take leave.
• What can you do to prevent this problem from
happening in the future?
Scenario 1 -- Analysis
• Article 18 states, “Procedures for
scheduling annual leave are subject to
negotiation at the Local Level.
• What procedures could you negotiate to
resolve this issue for the future?
• What other leave scheduling procedures
might you want to negotiate?
The Process of Negotiations
Two main styles or methods of
negotiating:
– “Traditional” or position-based negotiations
– Interest-based negotiations
Traditional Negotiations
Traditional Negotiations
• Single, chief spokesperson. Others at table
speak only when recognized.
• Written proposals are exchanged.
• Keep information close
• Often inflate initial proposals, so there are
bargaining chips or room to bargain.
• Position-based.
• Focus on your proposal/position, rather than
what you need.
• May end up horse-trading to get agreement.
• Based on POWER, including perceived power.
Advantages of Traditional
• May be only option when interests are not
shared (e.g. wage and benefit negotiations)
• It’s a “mechanical” process, easy to understand.
• Enter negotiations with good understanding of
where you want to go and the bottom line.
• Negotiations proceed relatively quickly due to
limited discussion at the bargaining table –
trading paper.
• Easy for bargaining unit to understand the
process and the Union’s positions on various
proposals.
Disadvantages of Traditional
• May need to trade one important issue to resolve
another.
• Ultimate solution/outcome may not be acceptable to
either party and may lead to sabotage/non-support
during implementation of agreement or decision.
• Tends to perpetuate adversarial relationship and
limits furthering of trust between parties.
• There are definite “winners and losers,” especially if
negotiations go to impasse.
• Often “beat up” a lot of people during the process, and
end up not resolving the issues that led to the
negotiations.
• Requires power, and with our low membership we
don’t have power.
Training in Traditional
• IAMAW’s Federal Employee Collective
Bargaining at WWW.
– http://winpisinger.iamaw.org/courselist/
– Excellent training – but plan to work hard!!
– Even if you primarily are interested in Interestbased negotiation methods, this provides an
excellent foundation in Federal law, preparing for
negotiations, etc.
Interest-based bargaining
Interest-based bargaining
• All parties participate and work toward
an acceptable solution for all.
• Focus of negotiations is interests
• Interests are the basic needs that you
must have in the solution to the issue
that is being bargained.
– Position: The Union office must be on the top
floor.
Interest-based bargaining
• All parties participate and work toward an
acceptable solution for all.
• Focus of negotiations is interests
• Interests are the basic needs that you must
have in the solution to the issue that is being
bargained.
– Position: The Union office must be on the top floor.
– Interests:
• Away from the HR office
• Confidentiality for employees
• What we need vs. what we want
• Information sharing is key
IBB Steps
• Identify issue(s)
• Identify interests
• Develop options
• Develop standards
• Evaluate options using standards
• Choose option(s) to craft solution
IBB Techniques
• Brainstorming
• Consensus decision-making
• Problem solving mechanisms
• Idea charting
• Active listening
• Effective communications
• Understanding differences
Let’s Try Some IBB
Scenario 2:
The employees who work in your office have been
complaining that the noise and fumes from the office
remodeling and recarpeting are making them feel ill
at work, and they are unable to concentrate. The
construction is moving through the parts of the
building, and different staffs are affected at different
times. Management expects the entire project to last
for about 6 months, but each staff is affected for about
a month. You have already negotiated temporary
office moves for employees whose offices are being
remodeled, but you did not anticipate so much noise
and odors.
Steps In More Detail
• Step 1: Define the Issue(s)
– Issue is the topic or subject or problem to be
solved
– Parties mutually decide on the issue(s)
– Understanding the issue or problem
precedes solving it
– Issue must be clearly defined or IBB will
fail
Define the issue in the
scenario
Steps In More Detail
• Step 2: Develop List of Interests
– Interests are one party’s concern about an issue
– Interests express why constituents care about
issue
– They reveal the reason for raising issues for
negotiation
– They are often held in common by union and
management
– May be held by one party only
– Important to recognize if it is an interest or a
position
What are the Parties’
interests in the scenario?
Steps In More Detail
• Step 3: Develop Options
– Options are solutions (whole or partial solutions)
that can satisfy one or more interests
– Brainstorm options – looking for quantity of ideas
– Think “outside the box” – don’t impose restrictions
– Tap into creativity
– Can use interests to generate more options
– Clarify options, but avoid judging options
Develop Options
Steps In More Detail
• Step 4: Develop Standards
– Standards are a characteristic or factor
used to compare and judge options
– They propose the qualities of a “good”
solution
– Parties mutually agree on standards
– Use “KISS” (keep it simple stupid) to limit
number of standards. Commonly use 3:
• Workable(“doable”),
• Acceptable (to constituents),
• Affordable (cost effective)
Develop Standards
Steps In More Detail
• Step 5: Evaluate Options Using
Standards
– Apply standards to each option
– May want to come up with system of rating
“how well” each option meets/doesn’t meet a
standard
– Discuss each option, and confirm that
option meets interests
Evaluate Options
Steps In More Detail
• Step 6: Develop A Solution
– Seek solution from among the remaining
options
– Amend and/or combine options, if
appropriate, to craft solution
– Build the agreement
– Draft language for agreement and check for
consensus on the agreement
Do you have a solution?
Consensus
• Consensus is reached when ALL
members feel they have been heard and
understood, support the decision being
made, and commit to its implementation
• Consensus is a process, not an
outcome
• Consensus does not imply lack of conflict
or tension
• Consensus is NOT voting!
Reaching Consensus
•
•
•
•
•
•
•
•
•
Listen, and pay attention to others
Encourage participation
Share all VALID and RELEVANT information
Don’t agree too quickly
Don’t trade support
Treat differences as strengths
Assign responsibility to those who say “no”
Avoid arguing blindly for your own views
Be honest about how you feel, but do not attack any
person about their ideas
• Create solutions that can be supported by all
stakeholders
Advantages of IBB
• Emphasizes solving the problem/issue
vs. attacking others.
• Objective vs. emotional process.
• Encourages discussion/dialogue, which
promotes clarity and understanding.
• Ownership in the outcome/decision leads
to support during implementation.
Disadvantages of IBB
• May take longer to come to a
resolution/agreement during negotiations
• Requires training/skills to negotiate –
investment up-front
• May require some education of our
members and those we represent – they
may see process as the union “selling out”
or “not being aggressive enough” during
negotiations
For all negotiations…
• Regardless of how you negotiate, you
and the Agency must bargain in good
faith, and
• You must put the final agreement in
writing with signatures.
Good Faith Bargaining
• 5 USC 7114(b): The duty of an agency and an
exclusive representative to negotiate in good
faith under subsection (a) of this section shall
include the obligation-– (1) to approach the negotiations with a sincere
resolve to reach a collective bargaining agreement;
– (2) to be represented at the negotiations by duly
authorized representatives prepared to discuss and
negotiate on any condition of employment;
– (3) to meet at reasonable times and convenient
places as frequently as may be necessary, and to
avoid unnecessary delays;
Good Faith Bargaining
• 5 USC 7114(b): (continued)
– (4) in the case of an agency, to furnish to
the exclusive representative involved, or its
authorized representative, upon request
and, to the extent not prohibited by law,
data-•(A) which is normally maintained …
•(B) which is reasonably available and
necessary …
•(C) which does not constitute guidance,
advice, counsel, or training provided for
management officials or supervisors,
relating to collective bargaining; and
Good Faith Bargaining
• 5 USC 7114(b): (continued)
– (5) if agreement is reached, to execute on
the request of any party to the negotiation a
written document embodying the agreed
terms, and to take such steps as are
necessary to implement such agreement.
Drafting Contract Language
• Who are the readers?
– Management representatives:
– Agency HR Reps
– Department heads, supervisors, etc
– Union representatives:
– BRs and GLRs
– Shop stewards, grievance committee members
– Lodge officers
– Members of the bargaining unit
– Arbitrators
Drafting Contract Language
• The critical test for contract language is:
“How will this article, clause, or
paragraph be understood and
interpreted by the reader who did not
participate in the negotiations?”
• Well written contract language stands
on its own. Read alone, it conveys the
mutual intentions of the parties. It is
not an easy task.
Drafting Contract Language
A general formula for drafting language
• Who … (will be bound by the clause?)
– The employer…
– All employees…
– The Union …
• What ... (is the action addressed in the
clause?)
– The employer shall (or shall not) …
– All employees are (or are not) required to …
Drafting Contract Language
A general formula for drafting language
• When … (under what circumstances?)
– In the event a job opening occurs, …
• How … (procedures to be followed)
– … the employer shall post a notice of such
opening for a period of seven days …
• But … (qualifiers and exceptions)
– Provided, however, that if …
– If the employer fails to respond in writing
within five days …
Drafting Contract Language
• Avoid using different terms for the same person or
entity
• Definitions are critical
• Define important terms the first time they are used
• Avoid using different meanings for the same term
• Avoid the use of legalisms – use the simpler word
• “whereas” “heretofore” “provided however”
• “because” “previously” “except”
• Be precise in the use of numbers and units of time
• Be cautious about using the terms: “such,” “that,” and
“above” to refer back to previous contract provisions.
• Be careful about using catch-all words and phrases
• “etc,” “and the like,” and “other similar situations”
• Watch for weasel words!
Weasel Words
•
•
•
•
in general
whenever possible
ordinarily
except in
emergencies
• under normal
circumstances
• reasonable
•
•
•
•
•
•
•
•
consult
confer
advise
adequate
timely
as appropriate
normally
other weasel words?
The sad fact is that in the Federal sector, weasel words are often
what make a union proposal negotiable. Without the weasel words,
the proposal might otherwise violate management rights.
Arbitral Review of Language
There is no need for interpretation
unless the agreement is ambiguous. If
the words and phrases of the agreement
are plain and clear, conveying a distinct
idea, there is no occasion to resort to
technical rules of interpretation and the
clear meaning will ordinarily be applied
by arbitrators.
Drafting Contract Language
• Issues and approaches:
– Basic Patterns in Union Contracts – 14th edition BNA
– Checklist of Contract Clauses – Tab # 8
– IAMAW Model Contract Language – commentary
• Actual contract language:
– Other IAM contracts – District or Local file
– IAMAW Model Contract Language
• www.vlodge.net – in pdf format
• on CD-ROM – MS Word format
– Electronic IAM contracts
• www.vlodge.net – full-text in pdf format
– Berkeley – Institute of Industrial Relations
• www.iir.berkeley.edu/library/contracts/ – full-text in pdf
format
Part II:
Master Agreement Process for
Midterm Negotiations
Article 11 – Master Agreement
• Article 11 has been significantly revised
in the 2010 Master Agreement.
• Templates to initiate negotiations are
provided in Appendix F.
11.3 – Negotiation Procedures
•
•
Proposing party makes a proposal (using Issue Notification
Checklist).
Proposals are given to the Designated official as described in
11.3(d).
–
When the Union makes a proposal, refer to FSM 6100:
•
•
–
Generally, you will file with the Line officer that is at the equivalent of
your area of recognition. (Forest Supervisor, Station Director, Center
Director)
A copy must also be sent to the appropriate LR staff member.
When management makes a proposal to the Union, the following
are the contacts:
• National: FSC President and FSC Negotiations Committee Chairperson.
• Intermediate: FSC Vice President and FSC Negotiations Committee
Chairperson.
• Local: Local President and appropriate FSC Vice President.
– Can’t figure it out: Call the Labor Relations Branch Chief,
currently Karen Stanton (505.563.9781)
43 – Limited to Dep.Chief for Bus. Ops and non-redelegable delegation to Director of HCM.
44 – Parties negotiating on behalf of a line officer must be formally designated in writing by the line
officer who will sign the agreement.
45 – Must have an ASC-HCM assigned Labor Management Relations representative involved in all
negotiations
Issue Notification Checklist
1. Contain the name and title of the designated official, to whom you are
sending the Issue Notification
2. Contain the phrase “Article 11 Notice” and the issue in the “subject line”
3. Provide summary background and rationale for the determination to
make the proposed change.
4. Identify potential impacts to bargaining unit employees.
5. Identify the proposed implementation date, if known.
6. Identify to whom to respond and their contact information.
–
This is where you designate who from your Local will be working on the issue.
7. Identify the “reply-due” date
–
This is 28 days from the day of the proposal
8. Include, information which is reasonably available and necessary for full
and proper discussion and understanding of the substance of the
proposed changes.
9. Be signed or transmitted by the appropriate designated official or
designee.
–
These are the officials listed in 11.3(d)
Negotiations Practice
• Remember Scenario 2: The employees who work in
your office have been complaining that the noise and
fumes from the office remodeling and recarpeting are
making them feel ill at work, and they are unable to
concentrate. The construction is moving through the
parts of the building, and different staffs are affected at
different times. Management expects the entire project
to last for about 6 months, but each staff is affected for
about a month. You have already negotiated temporary
office moves for employees whose offices are being
remodeled, but you did not anticipate so much noise and
odors.
• Write a proposal using the Issue Notification Checklist
Answer
1. Contain the name and title of the designated official, to whom you are
sending the Issue Notification
–
–
–
–
To:
To:
To:
To:
Forest Supervisor
Station Director
Center Director
??
2. Contain the phrase “Article 11 Notice” and the issue in the “subject line”
–
Subject: Article 11 Notice regarding nuisance created by construction work
3. Provide summary background and rationale for the determination to
make the proposed change.
–
The construction work that is currently going on in the office is making it difficult for
bargaining unit employees to work. To resolve this issue, we propose that all employees
be permitted to work at an alternative worksite or be given administrative leave, if they
are unable to work in their current office due to noise, dust, or chemical fumes from the
construction.
4. Identify potential impacts to bargaining unit employees.
–
Bargaining Unit employees are being affected by the construction as described above,
and we are proposing the changes above to mitigate the impacts.
Answer (page 2)
5. Identify the proposed implementation date, if known.
–
We propose that these steps to mitigate impact be implemented immediately.
6. Identify to whom to respond and their contact information.
–
Union steward Steve West will be the Chief Negotiator for the Union for these
negotiations and he has the full authority to negotiate on behalf of Local 123. He can be
reached on Lotus Notes at <stwest>, or by phone at 555-1234.
7. Identify the “reply-due” date
–
Please respond to this proposal by November 26, 2010.
8. Include, as attachments, information to the extent not prohibited by law,
which is reasonably available and necessary for full and proper
discussion, and understanding of the substance of the proposed changes.
–
Included as attachments are the sanitized complaints that we have received from
several bargaining unit employees, including a medical statement from an employee
whose physician recommended that she not come into the office until the construction is
completed.
9. Be signed or transmitted by the appropriate designated official or
designee.
–
Sincerely, Local President
Answer (In Letter form)
To: Forest Supervisor
Subject: Article 11 Notice regarding nuisance created by construction work
The construction work that is currently going on in the office is making it
difficult for bargaining unit employees to work. To resolve this issue, we
propose that all employees be permitted to work at an alternative worksite or
be given administrative leave, if they are unable to work in their current office
due to noise, dust, or chemical fumes from the construction.
Bargaining Unit employees are being affected by the construction as
described above, and we are proposing the changes above to mitigate the
impacts. We propose that these steps to mitigate impact be implemented
immediately.
Union steward Steve West will be the Chief Negotiator for the Union for
these negotiations and he has the full authority to negotiate on behalf of Local
123. He can be reached on Lotus Notes at <stwest>, or by phone at 555-1234.
Please respond to this proposal by November 26, 2010.
Included as attachments are the sanitized complaints that we have
received from several bargaining unit employees, including a medical
statement from an employee whose physician recommended that she not come
into the office until the construction is completed.
Sincerely, Local President
After you Propose
• Management will respond to your proposal using the
Response to Notification Checklist.
• They will identify their points of contact
• They will identify whether they want to use IBB or
traditional negotiations.
• They will provide a counter proposal or interests,
based on what kind of negotiations they are proposing.
• They will offer dates and proposed ground rules.
• YOU need to respond and keep the conversation
going.
When Management Proposes
• Often, a Local’s first negotiations are
when management wants to make a
change.
• Management will provide you with the
items in the Issue Notification Checklist.
• You need to provide the Response.
Response to Notification Checklist
• Contain the name and title of the designated official.
• Contain the phrase “Article 11 Response ” and the issue in the
subject line
• Reference the date of the initial notice and its receipt. Identify
any proposed adjustment to the “reply-due” date based on date of
receipt (timeline per Article 11 Section 3b).
• Identify whether the Party is invoking bargaining or not.
• Identify the name(s) and contact information of the point of
contact, negotiation team leader, and the official authorized to
execute any Final Agreement for that Party. Ideally, this is the
same person.
• Identify available dates for discussions to begin; include response
to any dates proposed in the initial notification.
Response to Notification Checklist
• If applicable, include any initial request for additional
information that may be required related to the topic being
negotiated.
• Unless the responding Party believes that the additional
information being requested precludes them from doing so,
include the following:
– Proposed ground rules and
– Any initial counter proposals if traditional negotiation process is
proposed in ground rules
or
– Any initial interests and issues if interest-based negotiations are
proposed in ground rules.
Article 11 – Master Agreement
• Groundrules:
– Define the logistics for negotiations
• Who/how many on each side
• Where
• When
• Facilitator, note taker
– Define behavioral expectations for
negotiations
• One person speaks at a time
• No put-downs, personal attacks
• Etc.
• Letter of authority for negotiators
Ground Rules Checklist
• Ground Rules are negotiable under Article 11. The Designated
Officials or their designees will negotiate a ground rules
agreement for each negotiation as appropriate.
• At a minimum, ground rules proposals will include:
1. Identification of the proposal.
2. Identification of the proposed method of negotiations (Interest Based,
Traditional, etc.).
3. Location (if face-to-face) or other proposed method of conducting the
negotiations. Give consideration to the cost efficiency of travel relative to the
complexity of the subject matter.
4. Identification of team members. Each Party is entitled to a team of equal
numbers. The Union may negotiate for additional members.
Ground Rules Checklist (2)
Ground Rules proposals should also consider—
1.
2.
3.
4.
5.
6.
7.
Date(s) and time(s).
Caucuses.
Use of alternate team members.
Use of subject matter experts in negotiation sessions.
Use of a facilitator.
Communications.
Timelines for subsequent exchange of proposals, if traditional
negotiation process is used.
8. Timelines for subsequent exchange of issues and interests, if IBN
process is used.
9. Preferred behavioral norms; i.e., respect, side conversations, cell
phones, etc.
10. Any other factors that need to be considered given the complexity of
the issues being negotiated (IBN training, equipment needs, note
takers, observers, etc.).
Negotiations Practice 1 –
Union Proposal
• Remember Scenario 1: An employee comes
to you, their Local Union representative, with
a problem about a leave request. A month
ago, he e-mailed his supervisor to let her know
that he would like to take next Friday off.
Two weeks ago, he asked her about the
request, and she responded that she needed to
have it on a leave form and then she would
consider it. He still has not gotten an answer.
• Write a union proposal for traditional
negotiations (See Article 11 )
Negotiations Practice 2 –
Union Response
• Scenario 3: In recent years, the number of staff
in your office has decreased by 30%.
• Management would like to decrease costs, by
decreasing the amount of space that the Agency
needs to rent.
• Currently the agency is renting 4 floors in a
building, and they have informed the Union that
they would like to consolidate to 3 floors.
• Assume you have received a proposal that
conforms to Article 11 and the checklists.
Negotiations Practice 2 –
Union Response
• 1. Using the checklist, write a response to
Management.
• 2. Include any possible information you wish to
request.
• 3. Assuming IBPS will be used, develop a set of
ground rules using the checklist to present to
management for the negotiations on the move.
• 4. Develop a SHORT list of possible issues/concerns
to be addressed during negotiations
Negotiations Practice 2 –
Example Ground Rules
• Parties will use IBPS and will meet face-to-face
• Note taker and facilitator will be provided by mgt.
• Negotiation team will be “x” Union reps and “x”
Management reps
• Negotiations will begin at 0800 in Conference Room
on October 20.
• Team members will receive IBPS training/refresher by
facilitator prior to beginning negotiations
• Parties will mutually agree on additional negotiation
dates, times, and locations needed to complete
negotiations.
• Parties will strive to complete negotiations by XXX
Article 11 – Master Agreement
• Negotiated agreements must not be in conflict
with Master Agreement, and will state
whether further negotiations can occur at
lower levels
• If subordinate agreements later come into
conflict due to subsequent higher level
negotiations, higher level agreement prevails
• Existing subordinate agreements not in
conflict with Master Agreement remain in
effect in accordance with their terms
• Questions of validity of subordinate
agreements to Master Agreement are
submitted to national Parties for resolution
Negotiations Practice 3
• Scenario 4: Your unit is getting ready to
transition to getting HR services from the
Albuquerque Service Center in 2 months. You
and your coworkers have heard that things
have not gone smoothly for units that have
transitioned. Furthermore, you have several
employees who have approached you with
concerns that their PDs are inaccurate, and
they want to see if they can get them corrected
prior to the transition.
• Can you negotiate a process to help get these
PDs reviewed in the remaining two months?
Article 11 – Master Agreement
• Negotiability Disputes
– Management asserts a union proposal is nonnegotiable
– Parties attempt to cure negotiability problems
– If unsuccessful at resolving, management
provides written statement of nonnegotiability
– Union may submit negotiability appeal to
FLRA
– FLRA will make decision on negotiability
Article 11 – Master Agreement
• Impasse:
– Impasse occurs when parties cannot reach
agreement
– Parties can mutually decide to invoke
mediation to solve impasse
– If unsuccessful, either party may request
assistance from FMCS
– If still unresolved, either party may request
resolution assistance from FSIP or mutually
agree to arbitration
Article 11 – Master Agreement
• Past Practices:
– Privileges of employees that by custom,
tradition, and known past practice have
become part of working conditions shall
remain in effect unless modified pursuant to
negotiations or such practices conflict with
the Master Agreement, government-wide
regulation, and/or statutory provisions.