Preparations for Negotiations

Selection of Negotiating Team:

The Association’s first task when gearing up for negotiations is to assemble a negotiating team.  This should be done six to nine months before expiration of the current collective bargaining agreement.  When selecting members of the negotiating team, keep in mind the following:

Consistency.  The Association should endeavor to have at least one or two people who have sat in on prior negotiation meetings.  This will keep the public agency honest as to what had occurred in previously negotiated contracts.

Numbers.  Attempt to select someone good with numbers and graphs.  This will be the person who will likely prepare salary surveys and put together other data used in negotiations. 

Schmoozer.   If your association has someone that is well known or otherwise gets along well with city officials and local politicians, it would be favorable to have him on your negotiating team.  This person may provide an invaluable service should negotiations reach a stalemate. 

Lead Negotiator.  Associations who traditionally use a professional negotiator such as their POA attorney, the selection is taken care of.  If your association does not utilize a professional negotiator (which you should), someone such as the Association president, vice-president or other association board member with some negotiation skills and training should be used. 

Your negotiating team should consist of somewhere between three and five people in total which helps foster a more informal environment for the negotiation process. 

Information Gathering:

With your negotiating team in place it is now time to put them to work.  The team members should be given specific tasks, fairly dividing up the work so as to not overwhelm any one individual.  The initial information obtained should include the following:

Wish List.  An informal survey of your membership should be taken to obtain topics they wish addressed in negotiations.  After the topics are gathered, you may wish to go one step further and then have your membership prioritize the topics by secret ballot.  The results of any prioritization should remain within strict confidence of the negotiation team to avoid allowing the agency learning what is and what is not important to you and your members.

Salary and Benefit Survey.  Knowing the topics of interest to your members obtained in the survey above, the Association should conduct a survey of traditionally compared agencies to determine your rank in regard to the topics of interest to your members.  If you do not have a list of traditionally used agencies for a survey, you can either develop one based on geography or population.  Avoid attempting to reinvent the wheel.  If there is in place a list of survey cities which has been used for many years you should continue with that list.  You will likely spend most of your time at the negotiating table arguing the validity of the surveyed agencies if you attempt to create a new list.  If there are problems with the traditionally used list, bring it up at the negotiating table and try to eliminate one or two of the agencies and replace them with agencies both sides can agree to.

Agency’s Financial Condition.  The Association should obtain at least the last two years budgets as well as any proposed budgets.  Additionally, obtain at least the last three years of the Comprehensive Annual Financial Report (CAFR).  With these documents you will be able to ascertain if the agency is putting funds into areas which should more appropriately be diverted to increasing public safety benefits.  Additionally, you will be able to determine if the agency is hiding funds from year to year, such as budgeting ten million dollars for the police department when only 9.5 million is used, thereby allowing the agency to use the half of million dollars toward any other project they desire.

Other Recently Negotiated Contracts.  Obtain the most recently negotiated contracts from other bargaining units in the agency.  This will be a strong indicator of the agency’s position at the negotiation table as well as may provide you information on benefits and other increases other bargaining units have obtained which you have not. 

Politicians Contributors.  Obtain from the local elections monitor (city clerk, county clerk or secretary of state) political action reports from the agency’s elected officials from the most recent election.  This will let the Association know who are the biggest supporters of the elected officials and who will likely have their ear should the need arise to communicate your position to them.  This information is public record and must be disclosed upon request. 

Gearing Up Before Negotiation Meetings

The negotiating team, after looking at the membership’s wish list as well as comparing the topics to surveyed cities should then put together the Association’s opening proposal.  While this proposal should be reasonable and realistic, it should include items that can be removed from the table during the negotiation process (“throw aways”).  The lead negotiator should then send the formal request to the agency, along with the Associations opening proposal, requesting that the meet and confer process commence. 

Contemporaneous to this opening proposal going to the agency, the negotiating team’s “schmoozer” or president should be out making friends with the local politicians.  The topic of such meetings should not be centered on negotiations, but rather warming up to the individuals, letting them know the Association is there to assist them in whatever they need.  This contact will go along way when agency staff presents the Association’s opening position to the elected officials for a response.  Of course, it is best to have this kind of communication and relationship throughout the term of the contract where feasible. 

The Meet and Confer

This is the time and place where all of the hard work and information gathering will hopefully pay off.  You will have to demonstrate logical reasons for the requested salary and benefits and have data to support your positions.  As those of you who have sat in negotiations realize, logic does not always control.  This is where the behind the scenes conversations with politicians or pointing out bad spending practices by the agency will assist you in getting the agency to see the correct “logic.”  Every tool available to you should be ready to be utilized for negotiation meetings.  You should be aware of the number of people who have left your agency recently, the number of positions that are open and arguably can’t be filled due to the low salary and benefits.

When negotiations at the table stall or become a waste of time, below is further discussion on how to get the agency to come around to your position.           

Negotiations After Impasse:

Association Options - Politics or Legal Approach

In gearing up for negotiations, hopefully your association has developed some political ties with members of your governing body.  Now is the time those political endorsements, favors, and friendships come into play.  When negotiations reach an impasse, the association will have options which may be utilized simultaneously, or one before the other.  One option is the legal route.  With the implementation of SB 440, binding interest arbitration is again alive in California, effective January 1, 2004.  The other option available is the political one which ranges in actions from picketing city council meetings to work slow downs and other pressure creating activities.  While these can be done in either order or simultaneously, we will first look at the binding interest arbitration option.

Arbitration Option

One of Gray Davis’ final pieces of legislation signed before leaving office was SB 440.  It’s predecessor, SB 202 was held unconstitutional by the California Supreme Court.  SB 440 is a “new and improved” version designed to withstand some of the constitutional challenges SB 202 faced.  While SB 440 is facing serious constitutional challenges by cities and counties, until those challenges are made and ruled upon, binding interest arbitration is back and in full force.  As you recall, while SB 202 was in its infancy, there were numerous contracts negotiated just under the threat of going to binding arbitration.  Regardless of the ultimate fate of SB 440, it will likely have the same effect of getting people at the bargaining table to think more reasonably.

Persons Covered Under SB 44

All firefighters and “law enforcement officers” employed by a “local agency” represented by an “employee organization” have the right to binding interest arbitration.   

Law enforcement officer - is defined as any peace officer pursuant to the following Penal Code Sections:

830.1 - Police officer, deputy sheriff, district attorney, investigator, Los Angeles Harbor officer;

830.31 (b) - Park rangers;

831.31(d) - Housing authority police officers;

831.32(a) - Community college police officers;

831.32(b) & (c) - School police officers;  

830.33(a) - BART police officers;

830.33(b) - Harbor police officers;

830.33(d) - Airport police officers;

830.35(a) - Welfare fraud investigators;

830.35(b) - District attorney child support investigator;

830.5(a) - Probation officers;

830.55(a) - Correctional officers.

Local agency - is defined as any governmental subdivision, district, public and quasi-public corporation, joint powers agency, public agency or public service corporation, town, city, county, city and county, or municipal corporation, whether incorporated or not or whether chartered or not, except the State of California.  (CCP '1299.3(f))
 

Employee organization - is defined as any organization recognized by the employer for the purposes of representing firefighters or law enforcement officers in matters relating to wages, hours, and other terms and conditions of employment within the scope of arbitration.  (CCP '1299.3(b))
 

Scope of Arbitration

Matters which are subject to arbitration under SB 440 include salaries, wages and overtime pay, health and pension benefits, vacation and other leave, reimbursements, incentives, differentials, and all other forms of remuneration.  (CCP '1299.3(g))

Going From Negotiations to Binding Arbitration

Prior to going to binding arbitration, the arsenal of tools currently available to an association may still be utilized.  These tools include using political pressure by various means and tactics to convince the employer to do the right thing.  For larger and more politically active associations, the political route may still be the best arena for obtaining an association’s desired results.  For smaller or less politically involved associations, other activities may be utilized, such as slow downs, speed ups, and the like.  If none of these actions are successful, binding interest arbitration may be an association’s only remaining course of action.

Step One - Declare Impasse.  Either party must declare an impasse.  Impasse may only be declared after exhausting all mutual efforts to reach an agreement.  (CCP '1299.4(a))

Step Two - Decide on Mediation.  Decide if mediation would be helpful.  If the parties are unable to agree to the appointment of a mediator, mediation is not required.  (CCP '1299.4(a))  There may be other local impasse rules which may be followed prior to submitting the issue to arbitration.  For example, either local rules or the MOU may call for an impasse procedure to include mediation and/or advisory arbitration.  Submitting to such procedures could considerably prolong matters.  No doubt, one area that will be litigated by the courts will be to interpret whether SB 440 may be implemented without going through impasse procedures.  Until then, it is suggested that if the impasse procedures are not significant, the association should submit to them to avoid a losing employer challenging the arbitration award by claiming impasse procedures were not followed.

Step Three - Request Arbitration.  Only the association may request binding arbitration.  To do so, the association must make this request in writing to the employer.  (CCP '1299.4(a))

Step Four - Arbitration Panel Selection.  Within three days after receipt of written notification to the employer, each party shall designate a person to serve as its member of an arbitration panel.  The two selected members shall then, within five days, designate an impartial person with experience in labor and management dispute resolution to act as chairperson of the arbitration panel. (CCP '1299.4(b)) If the two members are unable to mutually select a chairperson, a joint request shall be made of the American Arbitration Association or California State Mediation and Conciliation Service for a list of seven impartial experienced persons who are familiar with matters of employer-employee relations.  (CCP '1299.4(c))  After receipt of the list of arbitrators, and within five days, if the members are unable to agree on any arbitrator on the list they must alternately strike names from the list, with the last name remaining being the chairperson.  Determining who strikes first shall be determined by lot.  (CCP '1299.4(c))

The above time limits may be extended by mutual agreement.  Additionally, the parties may agree to simply use one arbitrator in lieu of a panel of three.  Depending on the association’s resources, this may be more feasible.

Step Five - Submit Last, Best and Final Offer.  Five days prior to the commencement of arbitration hearings, each of the parties shall submit to the arbitration panel a last, best offer of settlement as to each of the issues within the scope of arbitration.  (CCP '1299.6(a))  It is important to note that any issue included in the last, best offer must have been made in the bargaining process prior to the arbitration request. (CCP '1299.6(a))  The parties may by mutual agreement elect to submit as a package (all issues) the last, best offer of settlement made in bargaining (excluding issues outside the scope of arbitration, i.e. non-economic matters).  (CCP '1299.6(b))

Step Six - Duties of Arbitration Panel.  Within ten days of being established, the arbitration panel shall meet with the parties or their representatives, either jointly or separately, make inquiries and investigations, hold hearings, and take any other action, including further mediation, that the arbitration panel deems appropriate.  (CCP '1299.5(a)) To complete these duties, the arbitration panel is authorized to issue subpoenas for witnesses or documents, conduct investigations, administer oaths, and inspect employer and/or employee organization records.  (CCP 1299.5(b))

The arbitration panel, within thirty days after the conclusion of the hearing, shall separately decide on each of the disputed issues submitted by selecting, without modification, the last, best offer that most nearly complies with the applicable factors described below.  If the parties had decided on a last best offer package proposal, the panel shall decide which package, without modification, most nearly complies with the follow up factors.  (CCP '1299.6(b))

Factors Utilized by Arbitration Panel:

•  Stipulations of the parties.

• Interest and welfare of the public.

• The availability and sources of funds to defray the cost of any changes in matters within the scope of arbitration.

• Comparison of matters within the scope of arbitration of other employees performing similar services in corresponding fire and law enforcement employment.

• The average consumer prices for goods and services, commonly known as the Consumer Price Index.

• The peculiarity of requirements of employment, including, but not limited to, mental, physical, and educational qualifications; job training and skills; hazards of employment.

• Change in any of the foregoing that are traditionally taken into consideration in the determination of matters within the scope of arbitration.

Step Seven - Arbitration Panel’s Decision.  After receipt of the arbitration panel’s decision, the parties are not allowed to publicly disclose the decision for a period of five days.  During that five-day period, the parties may meet privately, attempt to resolve their differences and, by mutual agreement, amend or modify the decision of the arbitration panel. (CCP 1299.7(a))  After the five day period, the arbitration panel’s decision, as may be amended or modified by the parties, shall be publicly disclosed and shall be binding on all parties, unless there is an unanimous vote of the governing body to reject the decision.  If specified by the arbitration panel (so make sure to ask), the decision shall be incorporated into and made a part of any existing Memorandum of Understanding between the parties.  (CCP '1299.7(b))

Political Option

As most association leaders already know, associations should be selective in their battles.  However, this does not mean that the association should roll over for everything either.  Association respect (by the employer) is gained over years of actions or inactions.  Associations who rarely, if ever, take things to the mat or challenge the employer gain little respect at the bargaining table or elsewhere.  The flip side is also true.  Those associations that battle over every minor issue may be seen as an association that simply cannot be pleased, so why bother.  While it is a fine line, somewhere in the middle is where you want to be.  The association should be like a quiet giant in the position of, “do as I ask and don’t piss me off.”  Depending on the circumstances surrounding the negotiations impasse, there are various tools available to an association to put political pressure on the decision makers.  A few things to keep in mind when utilizing these tools are the following:

Public Message

Always keep this in mind.  The public could care less about your pay, medical coverage and pension plan.  All they want to know is “what is in it for them.”  Any public positions or statements by the association should always keep that focus.  The message should always be public safety first.  You do not want wage increases for yourselves, but simply to attract better qualified candidates and to keep more experienced officers from leaving.

The Future

Also keep in mind that once the fight is over, you and your members will still be working there.  Avoid activities where one or just a few members are involved who can be singled out for retaliation.  Always keep in mind your department policies and the law.  You should be in very close contact with your association’s attorney during these times to ensure you are not going to get yourself or any of your members in trouble.  For associations in the Legal Defense Fund, please keep in mind that concerted labor activity should always be discussed with the LDF Trustees prior to the activity to ensure coverage. 

Let the Games Begin

Again, the ideas listed below are not in any particular order.  Just as in your use-of-force guidelines, you can start with simple verbal commands or jump to a higher level, based on the circumstances. 

Keep in mind that most of these tools are not to deliver your message to the public but are designed to simply annoy the decision makers into giving in to your position.  

• Storm City Council – While an association is at impasse, no city council or governing board meeting should take place where members of your association and the public aren’t present publicly chastising them for their lack of concern for public safety.
   

• Picketing - Plan a few well organized picketing events.  Keep these events spread out to avoid burning out your membership. 
   

• Public Appearances - During impasse, the association should make known at every significant public event, such as parades, Christmas tree lightings, the Mayor’s Gala and any other event of interest to the decision makers, that the association is upset about the lack of concern for public safety.
   

• Newspaper Ads - Again, keep the message focused on “public safety.”
   

• Billboards - Nothing seems to get more attention than a billboard entering the city limits which reads that crime is up and the City could care less about your safety.
   

• Websites - GardenGroveSucks.com was a big hit.
   

• Job Fair - Getting your members to apply at a large local agency, which causes an influx of personnel file checks by background investigators always sends a strong signal.  Keep this for last, as some of your members may ultimately leave anyway.
   

• Work Slowdown - This involves informing your members to comply closely with Department policy and obey all speed limits.  It also involves having members do thorough investigations, such as canvassing the entire neighborhood when taking a 459 report and asking for a back-up unit on most calls.  Of course, exercising officer discretion in not issuing citations and making arrests is also encouraged.
   

• Blue Flu - This one is very rarely used and only in dire circumstances.  As with all of these, please consult your association’s attorney before even discussing this issue with your members. 
   

• Public Ridicule - Blunders by the City Manager, Mayor, or City Council members or wasteful spending should be highlighted and pointed out to the public at every opportunity. 
   

• Referendum / Ballot Initiatives - Getting the public to vote for a wage increase is seldom going to fly, however, as a pressure tactic, seeking petition to file a referendum on eliminating the City Manager’s position for a full time elected mayor may cause the City Manager to rethink his or her position.
   

• Mailers - Again, the message should be for “public safety” in getting the public to attend city council meetings and to call the City Council members (preferably at home) to chastize them for their inaction. 
   

• Campaigning  - If any members of the governing body are up for election, the association should begin actively campaigning against them, again for their lack of concern over public safety.  If you are in a non-election year, make political flyers which you can explain will be mailed out the following year during the election season.
   

• Focus on an Individual - Avoid spreading your energy.  Focus on a city manager, councilperson, mayor or police chief and keep the pressure up until that person assures you his loyalty and then move on to the next victim.
   

• Press Conferences  - Every high profile crime that takes place should result in the association’s uproar at the governing body for not having enough officers on the street, which could have avoided the incident. 

Of course, other ideas that cops come up with are very imaginative.  Just keep in mind, the idea is to annoy your opponents into giving in to your position and almost equally as important, to let them know that next time they should agree with you much sooner.

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