1. 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

2. 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

3. 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

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

5. 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

6. 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

7. 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

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

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

10. 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

11. 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

12. 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

13. 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

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

15. 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

16. 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

17. 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

18. 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

19. 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