The Smart Approach to Union Negotiations 3rd Annual Human Resources Convention Maine Municipal Association Thomas College, Waterville, Maine June 15, 2017 The Smart Approach to Union Negotiations Linda D. McGill, Esq. Bernstein Shur 1

Smart Approach to Collective Bargaining Management’s Goal in Collective Bargaining: To get an affordable CBA with a minimum expenditure of time, money, legal problems and ill will. 2

Smart Approach to Collective Bargaining Management’s Role in Collective Bargaining: To preserve or achieve terms and conditions of employment that promote productive and efficient performance by employees and flexible and efficient operations by the employer. 3

Smart Approach to Collective Bargaining Legal Framework Key Concepts Good Faith Bargaining 4

Smart Approach to Collective Bargaining Key Concepts Good Faith Bargaining: Sincere Desire to Reach Agreement No Obligation to Concede or Agree Based on All the Circumstances 5

Smart Approach to Collective Bargaining Key Concepts Good Faith Bargaining: Evidence Ground Rules Written Proposals Meet at Reasonable Times, Places Explain Reasons for Positions Reach Tentative Agreements 6

Smart Approach to Collective Bargaining Key Legal Concepts Bad Faith Bargaining: Evidence Surface Bargaining Unilateral Action/Change in Status Quo Bypassing Union/Individual Bargaining “Regressive” Bargaining Insufficient Authority of Representative 7

Smart Approach to Collective Bargaining Key Concepts Getting to Yes Mandatory Dispute Resolution Mediation Fact-finding Interest Arbitration 8

Smart Approach to Collective Bargaining Key Concepts Getting to No Impasse Implementation of Last Best Offer 9

Preparation is Strategic Smart Approach to Collective Bargaining Strategic Bargaining – the Real Smarts Preparation is Strategic Develop Your Agenda Anticipate the Union’s Agenda Keep Your Ear to the Ground Be Aware of the Dynamics Under the Table 10

Smart Approach to Collective Bargaining Costing Out is Strategic Translate Benefits and Other Items to % of Payroll Cost for Peak Use of Leave, Benefits Cost Out Union’s Proposals: Show Them the $$$ What are the “Buried” Costs? Cost Out “Non-Economics 11

Language is Strategic Priceless: Smart Approach to Collective Bargaining Language is Strategic Priceless: Strong Management Rights Clause Flexible Operations Language Zipper Clause Plain English 12

Smart Approach to Collective Bargaining Set Priorities: Wish List to Bottom Line What are the “must have’s? What’s your support for the “musts”? What’s the carrot? What’s the stick? Be prepared to change the Plan. 13

Bargaining Style is Strategy Smart Approach to Collective Bargaining Different strokes … Positional Interest Based “Transparent” React/Respond Scorched Earth 14

Being Realistic is Strategic Smart Approach to Collective Bargaining Expect Longer, Harder Negotiations if: Change in Principals Change in Settled Contract Language Change in Insurance or Retirement Change in “Sacred” Union Issues 15

Knowing the “Competition” is Strategic Smart Approach to Collective Bargaining Understand the Union’s Business Model Grow the business, keep solvent/ increase profit What are the Union’s Market Pressures? How can you take advantage? Who has the power at the table? 16

Communication is Strategy Smart Approach to Collective Bargaining Communication is Strategy It’s legal to communicate to employees during bargaining – if you know the rules Timing of communications is important for strategy and compliance Basic Rule: Say It to the Union First. 17

Handling the “Jerk” Factor is Strategic Smart Approach to Collective Bargaining Handling the “Jerk” Factor is Strategic What’s Behind It? Who’s Watching? Who Wins Jerk v. Jerk? Use It to Your Advantage Keep Your Eye on the Prize -- But Set Your Limit 18

Kenny Rogers on Bargaining Smart Approach to Collective Bargaining Stay at the Table ‘Til You Read the Cards Know What to Throw Away, Know What to Keep Know When to Walk Away, Know When to Run [Always] Count Your Money When You’re Sittin’ at the Table The Best that You Can Hope for … 19