Negotiate

Negotiations g Kelley Baker, Karen Haase Steve Williams and Bobby Truhe Harding & Shultz (402) 434-3000 kbaker@hslegalfirm.com @ g f khaase@hslegalfirm.com @ g f swilliams@hslegalfirm.com btruhe@hslegalfirm.com H & S School Law

@KarenHaase @btruhe

Today’s y Agenda g < < < <

LB 397 and the CIR Preparing for negotiations Wh ’ negotiable, What’s i bl and d what’s h ’ not Negotiations Negot at o s tec techniques ques aand d tact tactics cs

LB 397 Changes g < Significantly reforms Commission of Industrial Relations Act < Effective date: July y 1,, 2012 < Effective for the 2013-14 contract year < Negotiations begin and end much earlier (they begin this fall) < Issues will no longer be â&#x20AC;&#x153;mootâ&#x20AC;? <Changes g the CIR Midpoint p Range g

LB 397 Changes g < Negotiated agreements must be in writing, signed by the parties, and contain: j method < A salaryy schedule or objective of determining salaries < A description of benefits with a specific level of any group insurance coverage with ith a dollar d ll amountt or percentage t off premiums to be paid, and by whom < A continuation clause

Timelines < Sept. 1st: Teacher association requests recognition as exclusive bargaining agent < October 1st: Board responds to request < November N b 1st: Negotiations N ti ti mustt begin b i < February 8th: If there is no agreement, parties submit to resolution officer < March 25th (or w/in 25 days y of state aid certification, whichever later): Negotiations, fact finding, and mediation must end < September 15th: CIR must issue decision

Recognition < Recognition -- The NSEA has requested recognition iti off teacher t h associations: i ti < As exclusive bargaining agents for certificated non-supervisory personnel y < For 2012-13 and 2013-14 contract years < Boards must respond by October 1st < The NSEA will initiate certification proceedings in the CIR if boards donâ&#x20AC;&#x2122;t respond d promptly tl

Bargaining g g Sessions < Minimum of 4 bargaining sessions <Unless the parties reach agreement < Parties P i must submit b i to mandatory d mediation ed at o oor fact act finding d g if tthey ey do donâ&#x20AC;&#x2122;tt reach agreement by February 8th <Unless U l both b th parties ti agree tto fforego mediation or fact findingg

Resolution Officer < Resolution Officer â&#x20AC;&#x201C; the mediator or fact finder appointed by the CIR < CIR provides list of 5 names < Parties alternately strike names < The resolution officer: < Determines issues in dispute < Accepts stipulations < Schedules hearings

Resolution Officer < Sets rules of conduct for conferences < May order additional mediation < Takes any other action to aid in resolving the dispute < Does D nott consult lt with ith one party t without the other p partyâ&#x20AC;&#x2122;s y p permission < Not bound by strict rules of evidence < Non-attorneys Non attorneys may represent parties

Resolution Officer < Officer decides which issues were: < In dispute < Negotiated N ti t d iin good d ffaith ith < Not agreed upon < Limits decision to issues in dispute < Must choose the most reasonable final offer on each issue in dispute

Resolution Officer < Decides which issues were: <In dispute <Negotiated N i d iin good d ffaith ih <Not Not ag agreed eed upo upon < Limits issues to those in dispute < Must M t choose h th the mostt reasonable bl ffinal offer ff on each issue in dispute p

Action/Petition in the CIR < Dissatisfied party may file an action in the CIR w/in 14 days of officerâ&#x20AC;&#x2122;s decision < Not an appeal pp of officerâ&#x20AC;&#x2122;s decision < CIR is limited to deciding issues that the officer held were in dispute < CIR will decide issues on comparability, not most reasonable final offer < CIR must issue its decision by y Sept. p 15th of the contract year in question

Total Compensation p < The CIR must consider employersâ&#x20AC;&#x2122; payment of/contribution to: < Health insurance premiums premiums, premium equivalent payments, or cash equivalent payments < FICA payments < Retirement payments

The “CIR Midpoint” p < The “CIR midpoint” is the average of the true midpoint and the average total compensation of an array

98-102% Midpoint p Range g < During normal economic times (non recessionary times) < The CIR must determine whether the districtâ&#x20AC;&#x2122;s total compensation is within 98-102% of the midpoint <If it is, is the CIR will not order a change

Up p to 98%,, Down to 102% < If the total compensation is less than 98%, the CIR will order it raised to 98% of the midpoint < If the total compensation is more than 102%, the CIR will order it lowered to 102% of the midpoint

93-107% Midpoint p Range g < If the total compensation is less than 93% of the midpoint, the CIR will order it raised to 98% in three equal annual increases < If the total compensation is more than 107% of the midpoint midpoint, the CIR will order it lowered to 102% in three equal annual increases

Recessionaryy Occurrence < There is a â&#x20AC;&#x153;Recessionary occurrenceâ&#x20AC;? when, in: < the two quarters immediately preceding the effective date of the contract term in which net (i) state sales and use tax,(ii) individual income tax, and (iii) corporate income tax receipts are less than the same quarters for the prior year.

< During u g a recessionary ecess o y occurrence, occu e ce, thee range will be 95 to 102% of the midpoint

Preparing p g for Negotiations g

Good Faith Bargaining g g < Good faith bargaining involves the obligation to: < Meet M at reasonable bl times i < Discuss scuss mandatory a dato y items te s < Genuinely consider and respond t othersâ&#x20AC;&#x2122; to th â&#x20AC;&#x2122; proposals l q the board to < It does not require concede on any issues

Preparing p g for Negotiations g < Review the negotiated g agreement g â&#x20AC;&#x2122; Board review â&#x20AC;&#x2122; Administrator review $Improve provisions $Eliminate provisions $Why $How

Preparing p g for Negotiations g < < < < <

Review grievances g Review other districtsâ&#x20AC;&#x2122; contracts Perform a comparability study Develop a full list of board issues Raise all the issues

Know the Foe

Common NSEA Proposals

Administeringg Negotiations g < Control the recordkeeping p g < Control the wording < Read R d th the contract t t < Everyy time

Settingg Ground Rules < < < < < < < <

Date for conclusion -- statutory Beginning and ending times Submit proposals in advance Cost out proposals Cooperatively establish placement Rationale for each proposal Tentative nature of agreement Si i party Signing

What is Negotiable? g < Mandatory < Permissive < Prohibited

Salaryy Schedule < Mandatory

Work Dayy < Permissive

Class Size < Permissive

Bonus/Incentive Payments y < Mandatory

Health Insurance Carrier < Health Insurance Coverage is Mandatory

Health Insurance Carrier < Health Insurance Coverage is Mandatory < C Carrier i iis P Permissive i i

Reduction-in-Force Reduction in Force Policy < Permissive

Curriculum < Prohibited

Extra-Dutyy Assignments g < Permissive

Personal Leave < Mandatory

School Calendar < Permissive

Number of Work Days y < Permissive

Economic Effect < Though g the board mayy not have to negotiate an issue, it must negotiate the economic effect of the issue (e (e.g.): g ): â&#x20AC;&#x2122; Length of school year â&#x20AC;&#x2122; Planning time

Duties of Paraprofessionals < Prohibited

Planningg Time < Permissive

Subcontractingg < Prohibited

Earlyy Separation p < Permissive

Grievance Procedure < Mandatory

Evaluation System y < Prohibited

Professional Development p < Permissive

Substitute Payy < Prohibited

Probationaryy < Prohibited P hibit d

Period

Definition of the Bargaining Unit

McCook E.S.P. Assn. v.

Red Willow Co. Dist. 17 < NSEA tried to organize all classified into a single unit < District Objected < CIR ruled for District: â&#x20AC;&#x2122; Staff S ff diff differed d markedly k dl iin their h i wages, working conditions, skills and duties.

Delperdang v. U.E.W. < Bargaining unit established in 1995 included maintenance workers, custodians and secretaries < Secretaries outvoted; wanted own unit < CIR ruled l d ffor secretaries t i â&#x20AC;&#x2122; Work, pay, schedules all different â&#x20AC;&#x2122; Secretaries can now bargain directly with the district

So, Who Is In The Unit? < Those with similar duties,, working g conditions and pay < Teachers= T h = unit it does d nott include: i l d ’ Administrators/Supervisors p ’ Aides/Paras ’ Nurses ’ Substitutes ’ School psychologist, speech path?

Commission of Industrial Relations

Increase Base Salaryy < Yes

Reduce Base Salaryy < Theoretically

Change Health Insurance Carriers < No

Adopt p Grievance Procedure < Yes

Offer Earlyy Retirement < No

Continuation Clause < Yes,, but . . .

AMea Mea Culpa Culpa@ Notice < Yes Yes, but . . .

Payy a Teacher More < Yes

Hold Board Members Personallyy Liable < No

Fire Administrators < No

Allow Personal Use of Phones and Computers < No

Provide Dental Coverage < Not unless it=s a prevalent practice

Comparability

Table Manners

Fundamental Concepts p < Get the other side to commit first < Act dumb, not smart < Think real money, but talk funny money < Concentrate on the issues

Tactics and Techniques

Ask for More Than You Expect p To Get < You might get it < It gives you room to maneuver < You can make bigger concessions < Increases perceived value of your offer < Helps avoid deadlocks

Nothing for Nothing < Don=t ggive anything y g away!! y < “If we do that for you what will you do for us?@ us? ’You might get something ’Elevates value of concession

Feel, Felt, Found < AI know exactlyy how yyou feel@ < AI=ve felt that way myself@ < AI= AI=ve ffound d th thatt . . . @

The Call Girl Principle

The Call Girl Principle p < Get a Reciprocal p Concession Right Away

Bracketingg < Your initial proposal should be an equal distance on the other side of your objective bj ti as their th i proposall ’ Association wants $$1,200 , increase ’ You=re willing to give $1,000 ’ Offer Off them th 800

Tapering p g Concessions Concessions Create Expectations

< < < < <

Don't make equal size concessions Don't make the last one the big one Don=t give it all away up front Don=t test the waters The right way to make concessions

Good Cop/Bad p Cop p

Good Cop/Bad Cop < How to use it < How to respond to it ’ Identify Id tif it ’ Create own bad guy g y ’ Let the bad guy talk

Nibbling < How to nibble < How to respond ’ make them feel cheap, in a goodnatured way ’ Address all details ’ Make them feel they won.

The Flinch < React with shock and surprise p to the other side=s proposals

Appeal Authorityy pp to Higher g

Appeal pp to Higher g Authority y < Retain your ability to appeal to higher authority < Counter Gambit ’ Appeal to their ego ’ Commitment of recommendation ’ Qualified Q lifi d Asubject A bj t tto@@

Position the Other Side For Easyy Acceptance p < Last minute, small concession

Don=t Offer to Split p the Difference

The Vise < You'll have to do better than that. < Counter: C t â&#x20AC;&#x2122; Exactly y how much better do I have to do?

Let Things g Take Time

What if You Just Can=t Settle?

Consider an Outside Negotiator

Bargaining g g Scenarios

Negotiations g Kelley Baker, Karen Haase Steve Williams and Bobby Truhe Harding & Shultz (402) 434-3000 kbaker@hslegalfirm.com @ g f khaase@hslegalfirm.com @ g f swilliams@hslegalfirm.com btruhe@hslegalfirm.com H & S School Law

@KarenHaase @btruhe