Bargaining a First Collective Bargaining Agreement

Phil McMann
and
Dave Sapenoff
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Phil Wilson: [00:00:10]
Today’s Left of Boom episode is on bargaining preparation. It’s part of our series of bargaining and strike preparation videos. We’ve got Phil McMann and Dave Sapenoff, who are two consultants of ours who have negotiated hundreds of labor agreements, and they’re joining us to talk. This episode is one of two where we’re going through the preparation for bargaining negotiations. And then the second episode is the one on actually sitting at the table and bargaining. A lot of practical tips in this one. What kind of information should you be looking for? Who should be at the table with you? What are some of the ground rules that you want to have? So really good tips for anybody who’s preparing for bargaining.

[00:01:00]
So, enjoy this week’s episode of The Left of Boom Show with Phil McMann and Dave Sapenoff. All right, welcome Phil McMann and Dave Sapenoff. We’ve got another episode in our bargaining series. Welcome to the pod.

Phil McMann: [00:01:16]
Great to be here.

Dave Sapenoff: [00:01:17]
Thank you, Phil.

Phil Wilson: [00:01:20]
We’ve done a series of episodes around bargaining, and the main reason that we’ve started this whole series is that there are a lot more companies that are finding themselves in a position of having to bargain a contract, and many of them are bargaining first contracts. Phil and Dave are two of our consultants who do a ton of bargaining for our clients. And so, we thought it would be really good to bring them in to talk about how you plan for bargaining negotiations and what you do around strategy planning for bargaining.

[00:01:55]
So, we’ve talked about project planning and we’ve talked about some of the other different components, but we haven’t really dug into the actual like getting ready to do your first negotiation or do a follow-up negotiation. So, that’s the main focus of today’s episode. And I think, why don’t we just start there? Phil, why don’t you start what are some of the key things that you want to do when you first get on the ground and begin a bargaining project? What are the key things that you want to get figured out as you’re planning your bargaining?

Phil McMann: [00:02:27]
Thank you, Phil. So for me, it’s a multi-pronged approach. First and foremost, I want to make sure that meeting with the senior leadership for the organization, both at the site but also at the next level, whether it’s at the same location or possibly at the corporate office, if this is one of their locations to coordinate and make sure that we have alignment completely on really what the task is in front of us, what the timeline is, helping to set expectations so they’re aware of how this process works, and the planning that’s going to be required going into bargaining, looking at all the different factors. And we’ll talk a little bit more about that in a moment. But for me, it’s really just making sure that there’s alignment amongst the parties.

Phil Wilson: [00:03:12]
Why is that so important?

Phil McMann: [00:03:14]
Well, I think having alignment just helps set the expectation in terms of what the strategy is going to be. You want to make sure that you’re aligned, and that there are no surprises that come up in negotiation. You might get thrown a curve ball, but if you do the preparation and make sure that you’re going about it in a meticulous manner, covering each and every area as it pertains to what’s going to happen across the table, planning for the table, making sure that the team isn’t caught off guard.

Phil Wilson: [00:03:44]
Yeah. Dave, how about you?

Dave Sapenoff: [00:03:46]
For me, one of the most important things is getting the management team comfortable with what’s about to happen. Obviously, they’ve lost an election. If this is the first contract, potentially the first organized unit within their organization, there’s going to be a lot of fear and trepidation about what’s going to happen here. And a lot of people head into this with sort of the attitude, I’m going to sit and listen to the union, ask for things, and ask for things. And I’m there to listen and take this all in and, and have to respond. The main thing I try to emphasize and get the management team comfortable with, number one, is that bargaining is a two-way street.

[00:04:26]
The union’s going to come in with asks, and I tell management, this is your opportunity as well to develop your own bargaining goals and look at this as an opportunity to address and fix issues, organizational challenges, things that might have gotten you there in the first place. But obviously, there were inherent issues. This is your opportunity to fix them as well. One other orientation I try and get management to think about is the fact that they’re there to represent themselves now. And that’s sometimes conceptually hard for them as they feel as if they have to protect certain employee segments and things of that nature.

[00:05:05]
But the idea is to approach this from a management perspective, that you’re there to represent yourselves, that the employees are still their employees. This is not about retribution getting in or anything else. This is about developing the mindset to come into and come out with a fair and equitable agreement that allows you to run the business. And the other thing as well heading into this is to make sure that management understands not to allow as you head into this and develop your bargaining goals and strategies, or listen to the union, allow the union to define what you will be.

[00:05:42]
You’re in this to make sure that when you exit the bargaining process, you have an agreement that you can live with, work under, is good for you, good for the employees, and hopefully, good for the union as well.

Phil Wilson: [00:05:58]
Great. That’s a great place to start. So Phil, back to alignment. Maybe speak a little bit about how is this different than a normal business negotiation. There are definitely similarities. But I think one of the issues that sometimes trips companies up, especially if they’re going through it for the first time, is they look at, well, this is just another business negotiation. But it’s a little trickier than that. Can you comment a little bit? What are your thoughts about that?

Phil McMann: [00:06:30]
Yeah. So, it definitely is a little bit more tricky than that because as the first contract, this sets the foundation in the bedrock for all future negotiations, having to deal with the employees at that location. So, it’s critical that the organization make sure that they understand the components that are going to be negotiated in the contract, as well as what language they can live with. As David mentioned, ultimately, the goal is to get a good contract, most importantly for the business, for the employees, for the union, but also making sure that you can still deliver to your customer’s expectations and timelines, that you’re not hamstrung in terms of your ability to run the business, to make those critical decisions.

[00:07:08]
So, it’s vital that you spend the time to really understand how all these plays, these pieces are going to play into one another in terms of, say, a management rights clause, scheduling, the ability to hold people over, possibly for overtime and things like that. So again, you have the flexibility and the latitude to run your business the way you need to, albeit it’ll be negotiated and discussed with the union, but you really need to start thinking about what are the must-haves that we need to get out of this contract to make sure that we have that latitude and flexibility?

Phil Wilson: [00:07:44]
Yeah. And Dave, I think another part around alignment is authority, right? It’s not just these are priorities for us in this agreement, but there’s also setting- unlike a regular business negotiation where it’s not necessarily always easy to walk away, but you can propose some things and take them back. You can do some things in a regular negotiation that would create an unfair labor practice for bad faith bargaining if you did it in a labor negotiation. So, talk a little bit about why it is so important for the business leadership to know how far they’re willing to go and what is the no-go line versus maybe in a regular negotiation.

Dave Sapenoff: [00:08:34]
I think what a lot of people don’t appreciate is just how legalistic the entire process of negotiating a labor agreement is. A lot of it’s controlled by the National Labor Relations Act that, for the most part, most management teams are unfamiliar with. Their first introduction to the NLRB was probably during the organizing campaign. But it also controls the entire bargaining process. So in a sense, how proposals are put on the table, how proposals or counter proposals are responded to, could put either management and or the union in some sort of legal jeopardy, commission of an unfair labor practice.

[00:09:18]
Simple statements made at the table enable the union to potentially ask for a company to open its book. For argument’s sake, a simple response to an economic demand by the Union of ‘That’ll put us out of business,’ in effect, opens up legally for the Union, the right to request that the company open their books to them. So, again, it’s making sure that management understands the nuances of the law. And from both a tactical perspective, what we call table tactics, and ultimately, strategically where the negotiations end up- a lot of this is bound by the law.

[00:09:58]
So, every step of the way, every step of the process has a legal push and take to it, right down to something as simple as, for argument’s sake, the union making an information request and fully responding to a union information request further on down the line. And if management does not fully respond to the union’s information request, one of the strategic alternatives is to potentially declare an impasse in negotiations. So, it’s very important again, that heading into negotiations, management fully understands all the legal aspects of what goes into bargaining, what is good faith bargaining, what represents bad faith bargaining, and things of that nature so that they understand the limits on what can be said or not said at the table.

Phil Wilson: [00:10:51]
Yeah. And I think you bring up a great example, but there are hundreds of others. But just something as simple as you would do in a regular negotiation over equipment or over a new software package or whatever, the other side comes and they’re like, ‘This is how much it’s going to cost.’ And you go, we can’t afford that. You’ve literally at that moment just said, come and take a look at all of our books to establish whether it is true or false, that we could afford it. And you would never do that in a regular negotiation. But simply saying those words at the table creates the basic obligation to prove or disprove that statement. And most people just don’t understand.

[00:11:40]
And that, as I said, is just one example of many that can be used to either require you to have to respond to information requests related to it. It can be used as evidence of bad-faith bargaining. So, the most important thing for someone who’s new to this is to understand all of this nuance. And the rules are not necessarily common sense. They’re definitely not the way that you would handle a normal negotiation. So. I think that’s a really important foundational thing to understand.

[00:12:11]
So, let’s switch gears. And Dave, let’s go back to you. So, you’re getting started on the preparation for bargaining. What are the kinds of things that you want to collect? So, let’s just say management is pretty much aligned. What are the things that you need as tools in your tool chest or information? What is it that you want to have collected before you get to that first bargaining session?

Dave Sapenoff: [00:12:43]
At a higher level, what we take management through number one is conducting an assessment of the collective bargaining environment. What’s the local economy like? Difficulties in hiring things of that nature. Understanding the marketplace so that when you do an agreement, is that agreement going to help you or hinder you in terms of attracting, retaining, and incentivizing the best employees, number one. Gathering and assessing as much industry data as you can. And I think from there, it’s trying to gather as much information about the union itself, potentially the local, other agreements that they have with other employers, other agreements, not necessarily with that union, but with companies in your industry and also locally.

[00:13:37]
You’ll find that in local areas, a lot of agreements tend to look like each other. Over the years, companies have traded these things. Unions have traded these things. So, you can get a fair idea by looking at what the union has done elsewhere in terms of what they might come in and potentially put on the table as a demand for you. Again, one of the biggest aspects of this is also just understanding the financials.

[00:14:02]
And this to me, involves a very, and I can’t overemphasize this enough, detailed internal economic analysis, which you call costing the agreement out. And this is truly understanding and being able to make it very simple so that you can do quick math at the bargaining table but understanding the cost of virtually everything. What does five minutes of paid time off look like? What would an additional paid holiday or paid day off look like cost-wise to the organization? What does a $0.01 an hour increase look like in total dollars? What does a 1% increase look like in total dollars?

[00:14:47]
And then understanding all of the roll-up costs and all of the costs associated with things like all of your fringe benefits. Because obviously, all of that goes on the table and you want to understand. Because, again, just very quickly agreeing to oh, an extra ten minutes of wash-up time at the end of the day, for instance, could carry with it a very significant financial impact. So, those are the things that really I emphasize to management. Understand that in total before you head into negotiations.

Phil Wilson: [00:15:21]
Right. And then being able to counter proposals from the union because they don’t necessarily look at things that same way. They’re thinking like that extra ten minutes of time, that’s no big deal. And so, being able to go like, well here’s the cost of that over the life of this agreement. And then it also lets you go this is why we can’t agree to this other proposal. You start to be able to use those details as arguments for why certain packages of stuff make sense but this other package doesn’t make as much sense because it costs twice as much, even though if you were just looking at the language of proposals, you’d be like, oh, these kind of seem pretty similar.

Dave Sapenoff: [00:16:08]
Yeah, I think it’s very important that management understands that, quite frankly, the unions are going to come in and they’re not going to be looking at your bottom line. What they are looking at as a political entity, they are looking to do in effect, or try and fulfill promises that they made to the employees during the organizing campaign. So, if that means asking for significant increases in wages and benefits, increases in pay, time off, all sorts of restrictive work rules and conditions, they’re going to ask for them.

[00:16:41]
And again, that’s their job in the negotiations and their political responsibility to their membership. So again, I think any management team that expects them to come in and respect the bottom line, respect profitability, I tell employers don’t because that’s not their purpose.

Phil Wilson: [00:17:02]
Phil, what are some other things that you like to make sure those boxes that you have checked as far as prep leading up to the negotiation?

Phil McMann: [00:17:12]
For me, adding on to what David said, I personally like to learn as much as I can about their operations, and how the facility operates. In a perfect world, what does a normal shift look like in your facility? Now let’s talk about some of the things that create some of the issues and problems that have come up. Through the organizing aspect, there’s probably been a lot of discussion and a lot of things brought up in terms of issues and concerns that the employees have and why they’re looking to be represented by the union. And they were successful in getting the union elected.

[00:17:47]
But moving forward, okay, what are some of those things? How true really are those issues? And what do we expect to hear across the table as it pertains to those specific items that you knew about? I think it’s also critical to spend a lot of time with the frontline supervisors and leaders of the organization to understand what’s really being said on the floor, as best we can understand without interrogating or outright asking someone what’s going on.

[00:18:13]
But it’s really critical to understand okay, the election’s done. We’ve moved past. We’re now preparing for bargaining. It’s going to take a period of time. What’s the scuttlebutt on the floor? What are folks talking about? What is it that they seem passionate about- so that you can make sure that one, you’re prepared to address that concern and issue when it’s raised across the table? And two, how could we, if we choose to incorporate something in the contract language that could address that? Not being very specific, possibly in some areas, but in others you would want to be very specific to addressing concerns and being prepared to address them.

Phil Wilson: [00:18:51]
And I think Dave, building on your point, you want to have- so there’s the list of things that, you know, are probably going to be proposed because these were like the issues in the campaign that we just had. People were complaining about a bunch of stuff that they wanted fixed. They’ve now voted in a union thinking that the union’s going to get all those fixed. So, you can anticipate you’re going to get proposals on that. The other thing a lot of times we talk about is there are three lists, right?

[00:19:19]
There’s a list of the stuff the employees want. There’s the list of stuff that management hopes to either retain as a management right or hopes to achieve as its bargaining proposals. And then there’s this third list of stuff that the union wants institutionally. They want security ideally, if they’re in a state where that’s allowed. They want a dues checkoff clause. So, they want to make sure that their leaders are the last people to get laid off. So, there are these institutional goals also.

[00:19:52]
And so, a big part to me of the preparation is really starting to line out like, okay, what are the high priorities for us? What are the things that are high priorities for the union as an institution? And then what are the things that are going to be the highest priorities for the employees? And now, you can begin to start to see what are the kinds of things that we might be willing to trade on our side in order for them to achieve something that’s on their list. What’s something that we could say no to on the employees’ list in exchange for the union getting something that’s on its list?

[00:20:30]
That begins to kind of shape out what should our strategy be once we actually sit at the table? So, I think those are, to me, some of the key principles. So, any other prep items before we get to the tactics at the table? What are some other preparatory things that you’d like to have in your pocket before you go in?

Dave Sapenoff: [00:20:57]
Along with what Phil was saying in terms of learning the operations, meeting with management, expectations, and things of that nature, it’s this understanding that there are time frames as well. Management has to express its tolerance for various outcomes. So, for argument’s sake, is the desire of the organization to reach an agreement quickly? There may be some sort of financial exigency that says we want to. On the other hand, if management is saying, look, you know, however long it takes, that’s how long it takes. Understanding that. Understanding that management may be in a position of saying, look, we are firm on these following things, and if it results in the union saying that will not lead to an agreement- is management philosophically prepared to deal with the outcomes and consequences of that?

[00:21:59]
And it’s the job of myself or anyone else advising management to make sure that they are aware of all of the potential outcomes from negotiations, so that they’re able to develop the game plan for themselves as well and come to, you know, an end game that they are comfortable with.

Phil McMann: [00:22:22]
Great. I think for me also to add on that, I would say developing the strategy for where the actual negotiations are going to take place. I personally don’t believe it’s a good idea to have the negotiations at the company location. It should be separate and off-site because having it on-site could lead to some disruptions within the organization. As David mentioned earlier, you want to kind of control the clock, the calendar. There’s no specific timeline that you have to have this done by but you want to have in your head a framework for how long we suspect this is going to go on.

[00:22:55]
So, managing the clock is very important. Having the resources available so that when you’re at, say, the hotel and you’re in the back room and you’re working on things, that you have all the resources. And it’s amazing how many times, oh, well, we’ve got a printer and it breaks, or we have to have a copier or whatever, right? Everyone has cell phones today, so communication is pretty easy. But just making sure you have that avenue to have meetings and discussions back and forth between the plant and making sure they’re aware of what’s happening and what’s being discussed. So, you want to lay a lot of that framework and groundwork down so that everyone’s prepared.

Dave Sapenoff: [00:23:32]
I totally agree with Phil. A lot of that goes into the logistics here, the who, the what, the where, and the when. Establishing very early on, even before the first table meeting, a single point of contact for both the union and management. Because if you don’t do that, what ends up happening is invariably the union is sending information requests, for argument’s sake, to different people in the organization, some of which may recognize it for what it is, some that may not. And as a result, you’ve not responded to the union. I couldn’t agree with Phil more in terms of basically saying we’ll negotiate and pick a neutral site.

[00:24:10]
I agree, don’t do it on the company premises. On the other hand, I do not like also negotiating at the union hall either. Generally speaking, the room gets arranged in a way that’s disadvantageous to management. I wouldn’t recommend that. The other thing is, to agree on the logistics ahead of time with the union. For argument’s sake, cost sharing for the hotel, food, if there’s going to be any sort of refreshments, all of that. Make sure of that before you get there.

Phil Wilson: [00:24:40]
Are they getting paid while they’re bargaining?

Dave Sapenoff: [00:24:43]
Big deal, big time. Are you paying the union’s bargaining committee to be there? Are they having to take paid time, or unpaid time? Make sure all those logistics are agreed to. Another thing that sometimes you want to get to the table and talk about as well, in terms of anticipating as a floating into the union, is whether or not for argument’s sake, how will the union communicate with the membership, in a sense, taking any of the negotiations public? So, a lot of times you may want to have an agreement with the union that says, look, what we’re talking about stays in the room. And if you got to go outside, then we have to go outside. So, let’s just agree to keep it here. If that’s in the company’s best interest.

Phil Wilson: [00:25:33]
Yeah. We had a whole episode with Nick on bargaining communications. One of the things that we talked about there is a lot of times you don’t have control over things. You can get an agreement that it’s not going to be public, but a lot of times it gets public anyway. So, anticipating what that looks like. I love these practical, logistical questions around getting to the table. Let’s talk a little bit about if you’ve never done this before. A lot of times a company owner, especially in a smaller midsize company, is like, well, this is my company and I’m going to bargain the contract.

[00:26:12]
Talk a little bit about kind of who are the right people to have at the table, who are people that might think they should be at the table that probably shouldn’t be at the table. What are what are your thoughts about that? Phil, we’ll start with you.
Phil McMann: [00:26:25]
Yeah. Great question. So, this is where at times it can be challenging because although, yes, they want to be at the table again, you have to make sure that you’re having people who are the right people in the right positions to be at the table. So for me, I typically do not want to have the leader of the facility or of the business at the table, because whoever ends up being the chief spokesperson, whether it’s myself as a consultant or a representative of management, I always want to make sure that person is viewed as the person who’s in control. They have the ability to bind the company, that they’re not looking to their left or to their right for acknowledgment or permission of anything that’s being discussed and tentatively agreed to across the table.

[00:27:08]
So for me, I prefer to have at the operational level, someone who knows the operation, knows the ins and outs of it so that when the union throws something out, we have someone with the credibility and ability to speak to it. The chief spokesperson in my expectation, is typically the highest-ranking HR person at the location, or possibly depending on the size of the organization, it could be a region person, so that they have the credibility as well as the appropriate level to be able to bind the company. Then I always look to have, whether it’s myself or someone else with the experience, to be there at the table with them, to help them and coach them, kind of guide them through the process.

[00:27:48]
And then I also look to make sure that I have someone taking notes because I think it’s critically important, especially in a first contract. Because, again, you’re setting the foundation for future contracts and the relationship going forward. It’s critically important to me that you have someone capturing the notes as best they can, as clear as they can, and precise so that you have that record of the discussion so that down the road, whether it’s later in the negotiation process or possibly even a couple of years down the road, really, truly what was the intent? What were we talking about? How were we getting to where we were getting to? So, to have that laid out.

[00:28:23]
So that’s the way I look at the committee. And the only other thing I always do, in talking with the union, you’ll get an idea of how many people are going to be on their committee. I don’t necessarily agree that the company committee should be as big as the union committee. But it should be relatively close. But again, the people who are at the table have to have a reason why they’re at the table and an expectation that they’re going to participate, not just observe.
Phil Wilson: [00:28:48]
Yeah. I’ll flip to Dave in a second, but just a couple of quick reactions to that. I think you meant this, but some people might have heard it differently. The reason sometimes that you don’t want to have the owner of the company or someone who is actually the final answer at the table is because you’d like to have the flexibility at times to be able to go, ‘Well, I have authority to do this agreement. But this isn’t something that we’ve really talked about. We’re going to need to go talk about it.’ And it gives you a way to stop on that issue. Pause. Maybe we’ll talk about it next time after we’ve had a chance to consult with the ownership.

[00:29:32]
But if the owner is actually in the room, you don’t have that play available because they’re there, they need to, like, make a decision. So, I think that’s number one. The other thing is, a lot of times if you’ve never done this before, you might think you want to be there, but if you haven’t actually watched the sausage made, you probably should go sit through some bargaining before you decide you want to sign up for a year and a half of these meetings. Because it’s very likely you will not want to do that.

[00:30:03]
And then it starts to create an issue around, okay, well, now the person who was the authority is no longer showing up. Is that a bad-faith bargaining move? So, you want to get your team figured out right up front. And it’s very common that you might invite somebody in for a particular session because they have expertise in the issue that we know we’re going to discuss this time. But you don’t have to have everybody there for every single session. So I think that’s basically what you were saying, but I just wanted to highlight that.

Phil McMann: [00:30:36]
Yeah.

Phil McMann: [00:30:38]
Dave, what are your thoughts about the team at the table?

Dave Sapenoff: [00:30:42]
I agree 100% with that. It is always good, in my estimation, to have what I call hidden authority. That idea that on particular questions, obviously, whoever is the chief spokesperson at the table has to have authority to be able to conclude agreements, agree to tentative agreements. That’s why it’s very critical that prior to any negotiation sessions, in terms of where certain issues are going to be brought up, the chief negotiator knows exactly what their limits are in terms of what they can and cannot agree to. And there has to be that authority at the table.

[00:31:21]
Now, it doesn’t have to be 100% of the time. There may be instances or exercises where ‘You know what? On that one, I’m going to have to go upstairs and get an answer on that.’ Likewise, as you were pointing out, Phil, in terms of expertise, there are times you want to bring in- for argument’s sake, benefits is usually the big issue, health, and welfare, where you bring in the expertise to address particular issues at the table for understanding.

[00:31:51]
So to me, that’s one of the tactics that you use here is to always have some level of hidden authority when you’re at the table. And again, one other thing I emphasize to management is never feel obligated to give an instant answer to anything. And if you feel obligated, that’s when I tell everyone, that’s when that little voice inside you says, ‘Now it’s time to take a caucus,’ break and leave the room. Ask for time. Leave the room. Have a discussion.

Phil Wilson: [00:32:26]
Yeah. And this again goes to if you’re doing it for the first time, this doesn’t necessarily make sense to you. Or if you’ve been involved in a lot of other kinds of business negotiations, this doesn’t make sense. But when you finally say yes to something, you need to understand there are no takebacks. Under very extreme circumstances. But when you reach a tentative agreement on something, you’re basically saying that’s going into the contract and it’s going to take a lot to walk that back. And probably walking it back is an unfair labor practice.

Dave Sapenoff: [00:33:04]
Yeah. That’s an indicia of bad faith bargaining is to in effect take back walk back, or unilaterally amend things that have been tentatively agreed to.

Phil Wilson: [00:33:15]
So, it’s really important then to be 100% sure before you say yes. And so, the magic words are things like you said, let’s take a caucus and we’ll discuss that. Help me understand that more. I understand what you’re saying. I believe I understand. Let me see if I can repeat what you’re saying. You’re doing things to try to make sure you have a full understanding of what’s being proposed, as opposed to saying yes to things. Take your time. Make sure the words on the page are exactly what it is that you’re trying to accomplish, that there are not any tricks in there or even just vagueness that later they could say it means one thing when we all agreed at the time it meant something else.

[00:34:00]
This goes back to Phil’s thing about notes. Those are like really, really critical behaviors that probably in a regular negotiation, you wouldn’t care so much about because you could change your mind in a regular negotiation, and there’s really no consequence to that. It’s different in a labor negotiation. And then, Phil, to your point on notes, I think people also don’t really understand those notes, 2 or 3 or maybe even ten years later when there’s some question about what a particular clause means.

[00:34:32]
And again, unlike a regular business negotiation, the things that we talked about but didn’t make it into the contract are critically important because they can come back years later and say, ‘Well, what that actually meant was this.” Where you could go, no, we talked about that and we didn’t agree to that specifically when we agreed to this clause. You can now prove this interpretation, they already have agreed that that’s not what it means. But if you don’t have those notes, you are going to have problems when it comes to interpreting vague language.

Phil McMann: [00:35:11]
Absolutely. And you could find yourself having to find yourself in arbitration or possibly even going up to a circuit court or something for interpretation because something that happens ten, 12, 20 years down the road goes back to that original intent of the language. And if it’s vague, even though you had an understanding at the time, the players have changed, the folks have changed. It’s going to be critical to protect the organization, to have those notes so that you can go back.

[00:35:38]
You’re still going to get challenged on it, but that’s fine. But at least you have a defense, as opposed to trying to come up with something or trying to find somebody who was there at the time. So, that’s why they’re critical and that you don’t lose track of where the notes are going forward.

Dave Sapenoff: [00:35:51]
When I was a newbie in the industry, the old timers always would tell me the side that keeps the best notes is the one that’s going to win.
Phil McMann: [00:36:03]
I worked for an organization, and they ended up in a situation where there was some movement of work from one facility that was represented to a non-represented facility. And the language had a clause in there that said to make every reasonable effort. It was never a problem until 20 years down the road. And then it got interpreted by somebody else. And unfortunately, it wasn’t in favor of the company. So, it was a tough lesson to learn. But it’s one I never forgot. And fortunately, I was on the sideline, but I learned it.

Phil Wilson: [00:36:33]
Yeah. You said this earlier- there are places for vagueness and then there are places for specifics. knowing where those should go is really an important skill. So, we haven’t really talked about legal and where it fits into the team. Why don’t you talk a little bit about how you work with the legal team and where they fit in? Dave, why don’t you start?

Dave Sapenoff: [00:37:06]
First of all, having legal counsel is, I think, very critical in any negotiation. There’s always going to be an issue that comes up that is even beyond the scope of people who have been steeped in this for many, many years. For argument’s sake, starting off with something as simple as an information request. The union is going to send an information request. Some unions will have a very simple two-page information request. There are other unions, depending on their aggressiveness, that may just pound you with multiple five, ten, 15-page information requests literally asking for information on every aspect of the business.

[00:37:47]
And it becomes very important using this as an example for the company to understand, is the information request for relevant. Is any of the information that the union is asking for confidential? And understanding the legal nuances. And this is where somebody very steeped in this is very critical to understanding that. Understanding how to respond to certain proposals. Crafting language back to the union such that it doesn’t come off as a refusal to talk about something, but again, expressing no interest because again, two different legal things.

[00:38:29]
Unfair labor practices in terms of commissions at the table and things when, for argument’s sake, in terms of what we call mandatory permissive or illegal subjects of bargaining and what the union may put on the table. I’ll give you a perfect example. I’m in a first-time negotiation now with a union that came to the table and in the recognition clause attempted to add in a job category that was not part of the NLRB certification. And the management team there that had started the negotiations on their own suddenly realized we’re out of our league and brought me in to then pick up the negotiations for them.

[00:39:18]
And they didn’t understand something to the effect that something as simple as adding a job title into a recognition clause, that’s a permissive subject. And they didn’t understand, as most people, you don’t say, ‘Sorry, but that’s a permissive subject and we’re not going to talk about that.’ So, just understanding those nuances. But again, having good legal counsel here for when these types of questions come up is very, very, very important. One other place where it’s super critical is if at the end of negotiations, you are potentially building towards impasse, running council through all of the steps that have been taken, all of the issues, how they’re responded to, whether or not the picture is complete as far as responding to all the union information requests becomes very important.

[00:40:17]
And I think legal counsel serves a very, very important purpose there in making sure that the T’s are crossed, I’s are dotted before impasse is declared, and possibly an imposition of management’s last, best, and final offer- all of it or part of it.

Phil Wilson: [00:40:35]
Yeah. How about you Phil?

Phil McMann: [00:40:36]
Yeah, I agree with David 100%. I think, for me, it can go a little different way depending on whether you’re dealing with internal counsel versus external counsel. Again depending on the expertise of the counsel. Some organizations may not have a full-time attorney on staff, so you may be dealing with outside counsel

Phil Wilson: [00:40:57]
Very few companies have in-house counsel that has negotiated a bunch of labor agreements.

Phil McMann: [00:41:03]
Correct.
Phil Wilson: [00:41:04]
If you have a lot of labor agreements, then you have that. But if you’re a company that’s lost its first election, even if you have a general counsel and even if you have in-house employment counsel, it’s still very rare to have somebody that has done a lot of labor stuff. And it’s and as we’ve already been talking about, it’s going to be critical to have someone, whether it’s in-house or outside that knows this law because the law is changing all the time.

Phil McMann: [00:41:36]
And to piggyback off that, having a relationship with that individual so that you prepare them for what the plan is going to be, you get alignment with them that, yep, the strategy seems spot on. I like the approach. Be mindful of this and that. Again, they may be thinking of something that you haven’t thought of. Or maybe they ran across something. Or to your point, maybe, the law just recently changed, which seems to be a common occurrence. Much more frequently than it has in the past, right?

Dave Sapenoff: [00:42:08]
Yeah, that’s for sure.

Phil Wilson: [00:42:09]
Well, one of the things- and we’re getting a little bit to our next episode, which is on the actual bargaining at the table. But from a strategic standpoint, you also have to think about- so for example, the law recently changed and it’ll probably flip back, but there’s this whole back and forth around if something’s not in the agreement, has the union waived its right to bargain over that? And this is a football that goes back and forth. But unfortunately, the contracts last longer sometimes than the administration’s last and can flip this football back and forth.

[00:42:51]
Which means your strategy around the drafting of proposals probably needs to assume that at least during some of the time, the interpretation is going to be there’s got to be a clear and unmistakable waiver, or you’re going to have to bargain with the union. And in the middle of a contract, the union has a right to just go, ‘Yeah, we’re not going to bargain over it. We’ll see you in 2 or 3 years.’ So, things like that, most companies don’t know you have to be doing this all the time to even recognize this as an issue, and it changes. So, it’s complicated.

Phil McMann: [00:43:30]
Very complicated.

Dave Sapenoff: [00:43:32]
Yeah. Extremely complicated. And when you’re sitting and writing proposals, to a lot of people, the nuances that go into a labor agreement- a sentence that ends in a period, you could take that same sentence and instead of a period at the end of the sentence, comma, etc., can change the whole meaning of a sentence. And that’s lost on a lot of people in terms of looking at a labor agreement and what a simple difference like that may make.

Phil Wilson: [00:44:03]
Yeah. And that’s another good reason to have a lawyer looking at proposals even in cases where we’re bargaining at the table. We have clients that do it in a lot of different ways. If you’ve never done this before, you should have somebody who knows a lot about this, who is ideally in the room. And that could be us. That could be your outside counsel. If you have an in-house counsel that has a lot of experience, it could be them. But you don’t want to do this with people that doing it for the first time. You still might have key leaders that are in there, but that’s not who should be quarterbacking.

[00:44:42]
But however you design your team, you need a strategist. You need the legal review. And then you’re going to need the in-house experts to be able to respond to things that the union’s proposing. It’s not optional to have those different folks. And then and then at some point, yes, you might also need communications help. That depends a little bit maybe on the client size and what kind of business they’re in. But those core elements of bargaining strategy, legal and then the in-house company experts, are all critical.

[00:45:25]
I think we’re getting close to the end of this episode. So strategy-wise, Dave, you started on this, but I think part of the strategy is timing, right? It’s like when ideally would we like to be able to get a deal. There are probably also times that you would not like to be in a position of impasse or potential strike. Strategically there are going to be times when the union, if there’s going to be a strike, would like to time it at this period and the company would like to time it at a different period.

[00:46:02]
Or you want to set your contract expiration to be at a particular time, that’s going to be less of a concern for you than it would be at a different time. Maybe walk us through a little bit about how you think strategically about the timing of the bargaining.

Dave Sapenoff: [00:46:19]
When you look at the length of bargaining, how long it may take, that’s one of the things I always go over with management and say, if you were to reach an agreement, when would be the optimal period in time to reach that agreement, and then to have the contract expire? Obviously, for management, you don’t want to have contracts expire during peak busy seasons. I am negotiating an agreement right now with an employer that has a second location organized by the same union on the other side of the state. And that expiration is coming up in late February.

[00:47:02]
And we have been in negotiations with this other location. And the employer is obviously very concerned about having two contracts that would expire literally within weeks if not days of each other potentially. So, that’s one of the things strategically that we’re looking at here is when and where and how do we try and conclude these negotiations sooner or later. So, those are considerations. So, busy periods obviously you take into effect. Expiration of other agreements, if you have them as an organization, take those into effect. Expiration dates at the beginning of the month, at the end of the month, things of that nature.

[00:47:45]
Because again, strategically on, for argument’s sake, a strike and knowing that if people go out on strike when benefits might expire. So, a contract that expires at the very end of the month, the employee strikes soon thereafter, or maybe the first day of the next month. They have an entire month of benefits available to them. So, these are all little typical nuances and details that you will look at and take into account in terms of the bigger picture as to whether or not to try and accelerate negotiations or try and extend them out.

[00:48:17]
And one other thing that a lot of employers look at right now also, is that the union comes in with a one-year protected period under the NLRA to negotiate a first-time agreement. And the question is, when is that and where are you in the negotiations process such that will the union be actually negotiating without the benefit of having the protected period anymore? So, all sorts of nuances and details in the timing that you would take into account.

Phil Wilson: [00:48:48]
Right. Phil, how about you?

Phil McMann: [00:48:49]
Yeah. I think for an organization that has multiple locations and maybe this is the first one where they’ve had organizing activity and they now find themselves having to negotiate a union- I also from a strategy standpoint like to see what’s happening at the other locations to make sure that as you build your strategy for negotiations, you’re building it in the time frame that you’re not rewarding others to possibly think that it could be in their best interest to do the same thing. So, possibly as it comes around in terms of the time of a general increase you know.

[00:49:23]
I wouldn’t want to have a contract being negotiated where the folks at the facility who are represented are going to be getting an increase a month or so prior to the folks in the non-represented locations. Being very mindful of the one-year bar, if you will, period that David mentioned, where the union has the right to come in and negotiate. I’m always very cognizant of that. And for me, my strategy has always been we’re going to build the timeline for what works best for us and what supports the business to the best case that you can possibly. So, possibly you’re going to go 14, 16 months, right?

[00:49:57]
You’re not going to drag it out just for the sake of dragging it out. But again, the criticality of this first contract and laying the foundation is very important and one that we need to take the time to do everything to lead up to the negotiations, to work through the negotiation process. And one of the things that I try and do is work with the end goal in sight and then work your way back to where you are today so that you can build your timeline that way.

[00:50:21]
Best case, it’ll take us 16 months. Okay, fine. If that’s the best case, let’s put it on the calendar. Let’s work it backward so that we have everything staged leading up to that period so we can execute the timeline that’s best for the business.

Phil Wilson: [00:50:35]
Yeah. People say the reason negotiations take so long is because companies are dragging their feet. But that’s rarely the situation. It takes two to tango. You have to get a lot of people’s schedules to mesh to be able to do it. These first contracts, you’re literally bargaining every single page of that agreement. There are no words on a page to start with. So, you are proposing all the different pages and all the different words, and that takes a lot of time. And you want to be careful about that first contract because like you say, that sets the foundation for everything in the future.

[00:51:17]
So, the strategy of getting that first agreement right is so critical. And I think a lot of companies, especially if you haven’t been through it before and don’t have a lot of experience with this, don’t really understand this isn’t something where well, we’ll try it on our own for a while, and then if we don’t feel like we’re getting where we want to be, then we’ll hire expertise. Once the bargaining gets started whatever strategy and preparation you did at the beginning is set. And coming in the middle, it’s hard to unwind things.

[00:51:58]
So, Dave, you brought up the example, If there’s a clause that’s already been agreed to, even though it includes permissive subject- unwinding that is going to be very challenging and probably an unfair labor practice.

Dave Sapenoff: [00:52:10]
There’s no getting that toothpaste back in the tube, that’s for sure.

Phil Wilson: [00:52:13]
Exactly. So, I think that’s why it’s really important, if you’re in a situation where you have just lost an election and you’re in your first negotiation, make sure that you have somebody who has done this a lot that is at least helping you get prepared. Even if you have the thought that I think I can handle this, or maybe you’ve even been involved in some negotiations before- the law is changing all the time. The tactics are changing all the time. There are some tried and true stuff, but you want to make sure that you got this first one right because it sets the tone for your company for decades to come.

Phil McMann: [00:52:59]
Absolutely. And the other thing that I think also, and I know I would stress too, is even though it takes time and planning and everything else but the communication. And I know Nick did a piece on it and I’m sure covered this. But just don’t ever lose sight that there are still your employees. They were your employees long before the union got involved. They’re still your employees, and you have an obligation to do what’s in the business’s best interest, but also theirs. So, don’t lose sight of that. Because sometimes I think that does get kind of pushed off to the side.

Phil Wilson: [00:53:27]
Yeah. Great point. I think that’s a great place to end actually. Don’t forget, a lot of times, a union will negotiate things. They don’t necessarily understand your business. They’re hearing from maybe some small group of people that are annoyed by this thing but don’t really have an appreciation for the impact culturally or the impact business-wise that this change would have. So, the company is the only one that’s going to be able to hold the line on stuff like that. So, I think a great point is at the end of the day, this is really about a contract that’s going to help this company remain successful and make sure that those employees are taken care of. And that ultimately should be the goal of any negotiation.

Dave Sapenoff: [00:54:17]
Absolutely.

Phil Wilson: [00:54:18]
Yeah. Great. Well, Phil and Dave, thanks so much. We’re going to do another episode about the actual sausage-making here in a minute. But this has been great for bargaining preparation. So thanks a lot, guys.

Dave Sapenoff: [00:54:32]
Thank you.

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On this Episode

In this episode of The Left of Boom Show, Phil McMann and Dave Sapenoff take us inside the room to explore the tactics and strategies behind bargaining a first collective bargaining agreement. Building on the previous episode’s focus on preparation, this installment dives into the practical, day-to-day dynamics of sitting at the table and getting the deal done.

Key topics include:

  • Setting ground rules and managing table etiquette to ensure productive discussions.
  • The importance of written proposals and organized documentation.
  • Build trust and manage emotions to foster a collaborative atmosphere despite initial tensions.
  • Reading the room and understanding committee dynamics on both sides of the table.
  • Strategies for passing proposals, responding to counterproposals, and navigating non-economic and economic issues effectively.
  • Leveraging information requests to gain insight and counter union claims.
  • Balancing leverage, trust-building, and education to craft agreements that work for both the business and its employees.

With decades of experience negotiating hundreds of labor agreements, Phil and Dave share invaluable insights, real-life examples, and best practices to help employers navigate the complexities of first-contract negotiations. Whether new to bargaining or looking to refine your approach, this episode offers actionable advice to achieve successful outcomes.

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About The Guests
phil-mcmann

Phil McMann

Employee and Labor Relations Consultant

Phil McMann, founder of Peak ELR, is a seasoned employee and labor relations expert with 25+ years of corporate experience. He helps senior executives drive efficiency and align labor strategy with business goals. With expertise in union and non-union environments, he has led labor negotiations, employee relations, and union organizing campaigns. Phil holds a BA in Organizational Leadership from the University of Hartford and an Executive Leadership certificate from UVA’s Darden School of Business.
dave-sapenoff

Dave Sapenoff

Senior Labor Relations Consultant

David Sapenoff has over 35 years of experience in all aspects of labor and union relations and has provided consulting services and training programs covering a wide range of topics, including: union contract negotiations, labor contract administration, and union avoidance. Dave has extensive knowledge of employment and labor law, the National Labor Relations Act, NLRB rulings, and has proven himself to be a valuable resource to companies looking to address their labor and employee relations concerns.