Presented by: Presented by: Presented by: Presented by:

Rex Randall EricksonRex Randall EricksonRex Randall EricksonRex Randall Erickson EEEErickson Law Firm A.P.C.

(800) 864-8111 rerickson@ericksonlaw.com

Ken Stoppenbrink, Deputy ChancellorKen Stoppenbrink, Deputy ChancellorKen Stoppenbrink, Deputy ChancellorKen Stoppenbrink, Deputy Chancellor Becky Cazares, Director of Human ResourcesBecky Cazares, Director of Human ResourcesBecky Cazares, Director of Human ResourcesBecky Cazares, Director of Human Resources

West Hills Community College District

February 17, 2016

The purpose of this workshop is to provide an overview of labor relations in the community college setting. We will specifically be looking at: � The rules and authority governing the

relationship

� Best Practices for Negotiations � Chief Negotiator/Legal � Human Resources � Business Office

� Management/employee relations

� EERA (Govt. Code §§ 3540 et seq.)

� Education Code

� Decisions of the Public Employee Relations Board (“PERB”)

� Decisions of the California Courts of Appeals, the California Supreme Court, the 9th Circuit Court of Appeal, and the United States Supreme Court

� The Collective Bargaining Agreement (including side agreements and MOU’s) and past practices

� The EERA creates a process for groups of public school employees sharing a "community of interest" to organize and become represented by an exclusive bargaining unit (union)

� The EERA also defines the ground rules and processes by which school districts and bargaining agents negotiate, arbitrate, and grieve disputes

� Instructors/Teachers

� Non-exempt classified employees

� Substitute teachers

� Summer school employees

� Curriculum coordinators

� Psychologists

� Language, speech, and hearing specialists

� Financial aid coordinators

� Public information officers

� Faculty Acting as Department chairpersons

� Affirmative action purchasing agents

� Governing Board Members

� Persons appointed by the Governor

� Management employees

� Confidential employees

� Job applicants (except for retaliation for exercising rights)

� Retirees

� Student interns employed incidentally to their educational concerns

PREPARATION FOR NEGOTIATIONS

CHIEF NEGOTIATOR/

LEGAL COUNSEL

Whether to have legal counsel at the table?Whether to have legal counsel at the table?Whether to have legal counsel at the table?Whether to have legal counsel at the table?

‣ Legal Counsel’s (unbiased) Point of View

�Collective bargaining agreements are legally binding documents

�CBAs govern the working relationship between management and the employees, as well as establishing each other’s respective rights.

�CBAs impact 80-85% of the District’s budget.

‣ District’s Point of View?

Adequately Prepare for Negotiation: Adequately Prepare for Negotiation: Adequately Prepare for Negotiation: Adequately Prepare for Negotiation: The single most important ingredient for ensuring that proposals and ideas are adequately explained at the bargaining table is advance preparation: ‣ Thoroughly examine the current circumstances

‣ Reviewing specific past problems is extremely helpful in

explaining why a contract clause is important and how that clause will operate

‣ Actively debate the advantages and disadvantages of each proposal within the bargaining team and collaborate in the drafting of the language

Without advance preparation it is unlikely that ready responses and explanation can be expected at the bargaining table

Legal Review of Current ContractLegal Review of Current ContractLegal Review of Current ContractLegal Review of Current Contract

‣ Legal changes to contract

�Leave policies comply with changes in law

�Release time for union officers

�Discipline and arbitration procedures

�Right of assignment

�Adjunct reemployment rights

�Recapture other management rights

‣ Identify existing provisions which are permissive (but not mandatory) subjects of bargaining

‣ Identify existing provisions which are illegal subjects of bargaining

Labor relations for California community colleges involve three types of matters:

� Mandated subjects of bargaining

� Prohibited subjects of bargaining

� Permissive subjects of bargaining

Government Code § 3543.2(a) provides that:

“The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment.”

PERB has held that the following fall under the definitions of “Wages” � Overtime, Extra-Duty, and Severance Pay � Special Achievement Awards (monetary) � Employee Uniforms, Equipment, and Supplies � Use of District/Personal Vehicle and Travel

Expenses � Timing and Method of Payment � Salary Classification Systems � Payroll Deductions � Others

PERB has held that the following fall under “Hours of Employment” � Hours of work on particular days � Distribution of workdays in a week � Days worked per year and calendar � Shift schedules � Breaks and duty-free time during the day � Assignment of special duties, extra hours � Teacher instructional hours � Vacations and holidays � Modification of hours of a vacant position

(continued)

(continued) � Standby or Waiting Time � Released Time for Negotiations, Grievance

Processing, and Orientation of Employees � Preparation Time � Rest Time and Breaks � Schedules and Shift Assignments � Time Clocks and Sign-Out Policies � Call-back or Call-in Time � Assignment of Duties outside of job description � Some Staffing Level Decisions

Under Govt. Code § 3543.2(a), “other terms and conditions of employment” are defined as:

� Health and welfare � Leaves � Transfer and reassignment policies � Safety conditions of employment � Class size � Procedures to be used for the evaluation of

employees � Organizational security � Procedures for processing grievances, and � Alternative compensation or benefits for employees

adversely affected by pension limitations

Other terms and conditions of employment (Govt. Code § 3543.2(a))

Other Matters Found to Be Negotiable: � Ground Rules � Association/Management Rights Clauses � Emergency Assignments (including during strikes) � Faculty Service Areas � Impacts and Effects of Reorganization, Classification and

Reclassification, Subcontracting, and Layoffs � Certain Aspects of Discipline

� Criteria and procedures for classified employees � Employee obligations/responsibilities � Discipline less than termination

� Policy defining acceptable and unacceptable uses of the internet � Forms used to document public complaints against employees

(continued)

Other terms and conditions of employment (Govt. Code § 3543.2(a))

Other Matters Found to Be Negotiable (continued)

� Seniority – Calculation not negotiable, but other aspects are � Impacts and Effects of Layoffs � Transfer of Bargaining Work in General/Subcontracting � Access to the premises to observe conditions of employment � Section 3543.2(a) Also Obligates the Employer to Consult with

Faculty Regarding: � The definition of educational objectives � The determination of the content of courses and curriculum, and � The selection of textbooks.

� Others

� Where provisions of the Education Code would be “replaced, set aside or annulled by the language of the proposed contract clause” � (Govt. Code § 3540; San Mateo City School Dist. v. Public

Employment Relations Bd. (1983) 33 Ca1.3d 850, 864.)

� Where the Legislature specifically sets forth statutes governing the operations of schools and colleges in the Education Code � (Board of Education v. Round Valley Teachers Assn. (1996)

13 Cal.4th 269.)

More recent cases may expand management rightsMore recent cases may expand management rightsMore recent cases may expand management rightsMore recent cases may expand management rights � Where the Education Code gives exclusive

discretion on a subject to the district, that subject may not be a subject of bargaining. Any contract provision that contradicts or dilutes district discretion is void and unenforceable. �(Sunnyvale Unified School District v. Jacobs (2009) 171

Cal. App. 4th 168.)

� A court may find that a provision in a collective bargaining agreement is unenforceable before arbitration takes place �(United Teachers of Los Angeles v. Los Angeles Unified

School District (2012) 54 Cal. 4th 504.)

Examples of Potentially Illegal Subjects of Bargaining:

� Issues relating to administrator contracts (§ 72411.5) � Sale or lease of property (§ 81363.5) � Construction projects (§ 81949) � Discretion to count prior years service as temp towards

tenure (§ 87475) � Ability to cancel assignments in excess of regular workload (§

87484) � Decision to terminate probationary faculty (§§ 87608,

87608.5) � Termination of temporary/adjunct/part-time employees (§

87665) � Union entitlement to leave for union officers (§ 87768.5) � District's entitlement to full reimbursement for officer leave (§

87768.5)

� There is nothing illegal about making or agreeing to a proposal on a permissive non-negotiable subject

� However, there is no obligation on either party to negotiate � A party may not require agreement on specific mandatory

subjects as a prerequisite to further negotiations on other issues

� Parties may not insist to impasse over permissive subjects (although objection must be expressed before it is an unfair practice charge)

� Once agreement is reached on a permissive subject and it is embodied in a CBA, the parties are bound by the terms of the agreement until it expires or is modified by the parties

� However, by once bargaining and agreeing on a permissive subject, the parties do not make the subject a mandatory topic for future bargaining

Examples of permissive matters that are within Examples of permissive matters that are within Examples of permissive matters that are within Examples of permissive matters that are within managementmanagementmanagementmanagement’’’’s s s s discretion:discretion:discretion:discretion:

� Decision to implement computer use policy � Location of employee parking � Student fees applicable to all students � Change in benefit plan administrator not affecting benefit

levels � In-Service Days Within Established Workdays � Assignment of Duties within job description � Staffing Levels � Creation or abolishment of job classification � Smoking bans on campus � Certain transfers (e.g. transfer of lecturer from one

department to another) � Many others

Human Resources

Review Existing Contract ThoroughlyReview Existing Contract ThoroughlyReview Existing Contract ThoroughlyReview Existing Contract Thoroughly

‣ Conference with management to determine what provisions of the contract regarding day-to-day operations have not been “working”

‣ Encourage managers throughout the year to report any issues with the existing CBA as they occur

‣ Most common problem areas for management:

�Scheduling

�Evaluation

�Discipline

‣ Track prior grievances and other employee/supervisor complaints for possible contract changes to avoid issues in the future

Business Office

Compile Data Necessary to Support Terms Offered in the Compile Data Necessary to Support Terms Offered in the Compile Data Necessary to Support Terms Offered in the Compile Data Necessary to Support Terms Offered in the Initial ProposalInitial ProposalInitial ProposalInitial Proposal

‣ Ending fund balance to develop next FY budget � Budgeted unfilled positions, areas of unspent

budgeted items

‣ What are other area Districts paying for similar positions?

‣ State budget information, LAO forecasts ‣ PERS/STRS forecasts ‣ Number of personnel eligible for early retirement ‣ Total compensation – step/column, fringe benefits, longevity increases, stipends, paid leaves

Compile Data Necessary to Support Terms Offered in the Initial Compile Data Necessary to Support Terms Offered in the Initial Compile Data Necessary to Support Terms Offered in the Initial Compile Data Necessary to Support Terms Offered in the Initial ProposalProposalProposalProposal

Account for increased costs and uncertainty ‣ Take budgeted amount for all positions and assume a percentage for step/column movements and COLA

‣ Anticipate utilities, insurance, and other fee increases ‣ Reduce uncertainty by having an established minimum fund balance (typically expressed as a percentage)

‣ Board and administration must agree on financials ‣ Accurately assess financialsAccurately assess financialsAccurately assess financialsAccurately assess financials

�“Inability to pay” does not mean “unwillingness to pay.” �Consider program cuts or other sources of funding

before you tell employees you have no money.

DURING

NEGOTIATIONS

‣ Chief negotiator / legal acts as primary spokesperson � The bargaining table is not a “free speech arena” � HR, Business, other team members provide input mostly during

team caucuses

‣ Chief negotiator / legal drafts proposal language � Never rely on union proposals

‣ Keep the Board informed � Update and consider their recommendations � Highlight areas that could lead to an impasse early in the

process so they understand management position � Provide new members a history so they know that

management does not ignore union concerns

‣ Keep management informed

Examples of Financial Information That Would be Helpful Examples of Financial Information That Would be Helpful Examples of Financial Information That Would be Helpful Examples of Financial Information That Would be Helpful to Have Onto Have Onto Have Onto Have On----Hand: Hand: Hand: Hand:

‣ Number of personnel in the district at various stages on the district’s salary schedule

‣ Amount of sick leave taken by employees of the district ‣ Amount of personal necessity leave taken by

employees of the district ‣ Cost of fringe benefits ‣ A census of the employees, including the number of

dependents covered by fringe benefits ‣ Number of personnel eligible for early retirement

Saying “NO” Takes Practice � Occasionally during the initial stages of

bargaining, you may want to accept proposals of little consequence to establish “good faith”

� However, as negotiations progress, you rarely should agree to language without requiring modifications that represent your interests �Signifies to the other side that compromise is essential

to the bargaining process and that every word of their proposal has been scrutinized and considered

� Accept one proposal contingent on dropping another �Sets the tone that concessions will be necessary to

achieve an equitable settlement

�Accept concepts that require changes that can be beneficial to management

�Accept a Union proposal contingent on the acceptance of a Management proposal

� Use “Package Bargaining” techniques to obtain concessions

� Take Union proposals “Under Advisement”

� Communicate management’s need to provide Union proposals with in-depth study or research prior to management providing a response

� Draft counter-proposals explaining with full disclosure inability to pay or poor fit into overall strategic profile

� Develop options and Do Not Mislead �Be cautious that the union is not mislead into

thinking you have money and are merely looking for the right “quid pro quo”

�Misleading with regard to your settlement position

could result in protracted and exacerbated bargaining

� Employee Morale

� Union strength

� Real Political Power

� The sky is falling

� We can placate the Union

‣ Constraints of law

‣ Determination of the Union

‣ Integrity of Board and administrators

‣ Quality of communication

‣ Ability to pay

� District speaks in one voice � No intermeddling in negotiations by non-

members of negotiation team � District operates with firm and fair

conviction � District expresses unity � No provocation � Share all information among all Board

members � Statesmanship

� No shooting from the hip

� Team players

� No loose cannon

� "Hero negotiators" need not apply

1. Misjudging the loyalty of staff 2. Need to placate union 3. Need to get a quick agreement 4. Ineffective negotiation strategies 5. Inadequate cost analysis 6. Unprepared for alternatives 7. Run around own negotiator 8. Premature best offer 9. Too much focus on union demands 10. Use of union documents

‣ Neutralizer of district advocacy

‣ “Pipeline” of information to the Union

‣ “End Zone” or “End Run” Specialist

‣ Antagonist to the Board Position

�Display weakness

�Opens a dissenting voice

�Mix personal feelings with district objectives

‣ “Hero” negotiator

� Loss of management rights

� A “split” administration

� Lack of commitment to Board authorization

� Inconsistent application of contract provisions

� Get your message out � Use key communicators � Hold meetings and issue newsletters � Negotiation sunshine committee � Persuasive administrator as spokesperson � Diversion program – Little Takes Place

Between November and January � Send negotiation reports to employees � Board member communications to 10 friends � Cabinet communications to 10 friends

� Newspaper releases � Key issue dissemination � Testimonials � Retain management control -- do not give away

the right to manage � Take the educational high road � Bargain with an understanding of clear definable

interests � Publicize internal analysis � Publicize comparability analysis among other

school districts � Publicize CPI -vs- Union compensation demands

� Publicize issues related to the public’s welfare � Board commitment to its position � Board member training � Letters to the editor � School site meetings � Newsletters to employees � Litigation

� Convince the Union it can get no moreConvince the Union it can get no moreConvince the Union it can get no moreConvince the Union it can get no more!!!!

Management/Employee Relations

� Management acts and employees react

� Management must assert its rights and obligations � If an employee needs disciplined, District should initiate

disciplinary procedures � If it needs to make operational decisions, it should make

those decisions

� The role of the union is to make sure that the proper procedures are followed and the rights of its unit members are protected and represented � To make sure that evaluations are done fairly � To make sure that the layoff procedures are complied with

Many times, management and the unions want the same things � Open Communication - Both want to know

what’s going on � Respect for their positions and duties

No one wants poor employees in the organization ‣ Do less than others ‣ Get paid the same as employees who take

their job seriously and work hard

Ideally, problems get resolved before they get to the grievance level – But only through open communication

� Labor should let management know when there are issues

� Management should be responsive to labor’s concerns and attempt to address them by providing explanations and reasons for its actions

� It is not productive to respond to employee concerns by saying, “If you don’t like it, file a grievance”””” � Most likely, they will

� Different relationship than with Union � Avoid interposing between Union and members � Use caution when dealing with members � Avoid gaining agreement with members � Special considerations for individuals � Educational enterprise � Friendly and cordial � Administrator’s role � Direction and supervision � Necessary contracts and communications

Unfair Practices

� An unfair practice charge may be filed by the opposing party if it believes the other party has engaged in conduct in violation of the EERA

� PERB has jurisdiction to determine whether an unfair practice has occurred and if so, what the remedy should be

District Conduct That May Result in an Unfair Practice ChargeDistrict Conduct That May Result in an Unfair Practice ChargeDistrict Conduct That May Result in an Unfair Practice ChargeDistrict Conduct That May Result in an Unfair Practice Charge (Govt. Code § 3543.5)

� Retaliation or Discrimination against Employees Because of Their Exercise of Rights Guaranteed by the EERA (Govt. Code § 3543.5(a))

� Deny to employee organizations rights guaranteed to them by EERA (Govt. Code § 3543.5(b))

� Dominate or interfere with the formation or administration of any employee organization (Govt. Code § 3543.5(d))

� Refuse to participate in good faith in the impasse procedure (Govt. Code § 3543.5(e))

District Conduct That May Result in an Unfair District Conduct That May Result in an Unfair District Conduct That May Result in an Unfair District Conduct That May Result in an Unfair Practice ChargePractice ChargePractice ChargePractice Charge

(Govt. Code § 3543.5)

� Refuse or fail to meet and negotiate in good faith with an exclusive representative (Govt. Code § 3543.5(c).)

�Good faith requires a subjective attitude and a genuine desire to reach agreement

�In determining whether a party has violated EERA § 3543.5(c), PERB utilizes either a "per se" test or a "totality of the conduct" test, depending on the specific conduct involved and the effect of such conduct on the negotiating process

District Conduct That May Result in an Unfair Practice District Conduct That May Result in an Unfair Practice District Conduct That May Result in an Unfair Practice District Conduct That May Result in an Unfair Practice ChargeChargeChargeCharge

(Govt. Code § 3543.5)

Refusal or failure to meet and negotiate in good faithRefusal or failure to meet and negotiate in good faithRefusal or failure to meet and negotiate in good faithRefusal or failure to meet and negotiate in good faith

Per SePer SePer SePer Se ViolationsViolationsViolationsViolations

� Certain actions are considered per se violations of the duty to bargain in good faith because they "have such a potential to frustrate negotiations that they are held unlawful without any determination of subjective bad faith on the part of the actor"

� Such acts violate the law without any further evidence of bad faith because the conduct involved is presumed to prevent "full communication between public employers and their employees"

District Conduct That May Result in an Unfair Practice District Conduct That May Result in an Unfair Practice District Conduct That May Result in an Unfair Practice District Conduct That May Result in an Unfair Practice ChargeChargeChargeCharge

(Govt. Code § 3543.5)

Per Per Per Per Se Se Se Se ViolationsViolationsViolationsViolations

� Unilateral Changes

� Absolute Refusal to Bargain on Negotiable Issue

� Conditioning Proposals on Waiver of Rights � i.e. Withdraw grievance or drop right to file a grievance

� Failure to Execute Ratified Agreement

� Insistence to Impasse on Non-mandatory Subjects of Bargaining

District Conduct That May Result in an Unfair District Conduct That May Result in an Unfair District Conduct That May Result in an Unfair District Conduct That May Result in an Unfair Practice ChargePractice ChargePractice ChargePractice Charge

(Govt. Code § 3543.5)

Totality of the ConductTotality of the ConductTotality of the ConductTotality of the Conduct–––– “Indicia of Bad Faith”“Indicia of Bad Faith”“Indicia of Bad Faith”“Indicia of Bad Faith”

� Failure to Exchange Proposals or Attempt to Reconcile Differences

� Dilatory Tactics � Negotiators Without Adequate Authority � Bypassing Representatives � Surface Bargaining � Regressive Bargaining

�Be prepared to demonstrate you have a sincere desire to reach an agreement.

� Areas of concern checklist �When to seek legal advice before disciplining

�When to seek legal advice during negotiations

Thank You!Thank You!Thank You!Thank You!