Phil Wilson: [00:00:09]
Hey, everyone! In today’s episode of The Left of Boom Show. I interview Dave Sapenoff, senior consultant with LRI Consulting Services. He’s one of our go-to resources when it comes to collective bargaining in general, and especially in bargaining first contracts. Today’s episode is all about what does an employer do in that period between losing an election and then getting ready to start their collective bargaining? Dave’s got a lot of practical tips around, first of all, maintaining the status quo environment that’s so critical during this period. What do you train your supervisors to do during this period so that they understand what legally has changed now that there is an exclusive bargaining relationship?

[00:00:54]
Also, a lot of practical tips around how to figure out what my team should be, who should be on that team and how do I get them prepared. And then finally, what are some of the first moves to expect from the union, and how do you get ready and know how to respond to those moves? Again, a lot of great practical advice here. So, enjoy this episode with Dave Sapenoff. Hi Dave, welcome to the show.

Dave Sapenoff: [00:01:19]
Hi, Phil. Thanks for having me on.

Phil Wilson: [00:01:21]
Yeah, it’s great to see you. As you know, our episode today is all around you’ve just lost an election, and now you have a bargaining obligation with a union. And so, let’s just dive in with how you help clients that are in that kind of a situation. They’ve just lost an election and now need to get ready for bargaining.

Dave Sapenoff: [00:01:45]
I think for most clients, most management teams, the biggest question after having lost an election is now what? What happens now? Where do we go? Really, what initiates the whole process of bargaining? So, at this point in time, you’ve lost an election. What will happen is typically about a week or ten days later, you’ll get an official notice from the NLRB certifying the results of the election. And then very shortly thereafter, management should expect a communication from the union be it in letter form, be it in an email to basically initiate collective bargaining with the employer.

[00:02:29]
So in effect, they’ll restate the fact that they are the sole and exclusive representative of the employees. They’ll ask to start coordinating calendars to establish a bargaining schedule. Typically they will also include an information request. And we’ll talk a little bit more about what that includes as we talk through this. And generally speaking, in most communications the initial communication from the union will be an admonition to management, that management is required to maintain what is known as the status quo. So, that’s really the initial steps in the bargaining process and what management can expect to happen within about 2 to 3 weeks after the election has been conducted.

Phil Wilson: [00:03:18]
Great. Now, I should have started here. How do you know all this? Tell us a little bit about your background.

Dave Sapenoff: [00:03:26]
I’ve been in labor relations practically all my adult life. I have a bachelor’s degree in economics from the State University of New York at Cortland. After graduating from there, I went to work for the Teamsters union in New York City. I was an organizer field representative for one of the largest industrial teamster locals in the New York metropolitan area. And I did that for a little over six years. Then I got my master’s degree in industrial and Labor relations from the New York Institute of Technology, and made the switch from the labor side of the table over to the management side.

[00:04:05]
I worked for 34 years with Sprint Communications and its derivative companies. For the most part, I was in HR and director of employee and Labor relations. At the time I was with them, we had 35 collective bargaining agreements and a little over 12,000 bargaining unit members in 18 states. And I was responsible for basically the care and feeding of the bargaining units and also for keeping 45,000 non-union employees non-union. I retired in 2018.

Phil Wilson: [00:04:05]
That’s a lot of bargaining experience. And then you’ve been doing it as a consultant for a number of years as well.

Dave Sapenoff: [00:04:48]
Well, for the most part, with LRI since 2018.

Phil Wilson: [00:04:52]
Yeah, right. You’re one of the go-to folks when we have clients that want you know, want our help in bargaining a contract. You’re one of the first people I turn to. So, let’s go back. You mentioned you mentioned a lot of stuff in the lead-up there. So, why don’t we start with status quo? I think that’s a core concept that a lot of people don’t know. And if you haven’t been unionized before and you’re a company, we’re in this market now where there’s a lot of union elections happening. They’re happening with a lot of smaller companies.

[00:05:29]
And so, there are a lot of companies who are facing this situation for the first time and maybe don’t have a lot of background or knowledge about what to do. So, let’s talk about this idea of status quo. Just explain- I just lost an election. I know I’m going to have to do bargaining, but that could take a long time. What are the rules during that period?

Dave Sapenoff: [00:05:51]
Really what status quo is, it is an extension of during the election campaign, that concept of laboratory conditions, where during the election campaign, if you made unilateral changes to wages, benefits, terms and conditions of employment, either gave something to the employees or took something away from the employees, that would constitute a violation of the National Labor Relations Act. Likewise, after the election, management is, in effect required to operate under the same policies and procedures that were in effect prior to the election.

[00:06:25]
So, status quo means you maintain all your current practices and policies, and that management is generally prohibited from making any unilateral changes in terms of conditions of employment during that bargaining period. Now, there are some difficult concepts in there because for argument’s sake, what happens if you had a wage increase scheduled during that period of time? This is a recent change in NLRB philosophy, but status quo, if you had been giving out a wage increase at the same time every year for multiple years in a row, you would typically continue with that because that is part of status quo.

[00:07:14]
Under recent NLRB doctrine, however, things have changed within the last year, year, and a half that would basically say, even if you have this scheduled wage change due to happen, you would still, in effect, have to bargain that with the union now. So bottom line is, you manage with the policies and practices that you carried into and past the election, and you cannot make any unilateral changes to wages, benefits, terms, and conditions of employment.

Phil Wilson: [00:07:48]
Yeah. So, this is a really tricky area. And like you said the law has recently changed here. There’s a legal question. And then there’s also a bargaining strategy question that goes along with it. So, to sum up what you just said, if there’s something that you’ve done that’s not discretionary, that’s the main thing that they like to focus on. If you were doing something and have done it historically, let’s say, for example, you have every year, all the classifications get a 25-cent-an-hour increase. And that’s been your history and that’s how it’s happened and it’s always the same amount. That’s a non-discretionary increase.

[00:08:33]
And even if maybe the employer could say we’re not going to do it this year, they haven’t done that historically. It’s always been the same. That’s really nondiscretionary. That’s going to be very difficult for you to stop doing. If you stop doing that, that’s going to be like you just said. It violates this laboratory conditions, status quo environment. On the other hand, if you gave out merit increases, it could be a range from 3 to 7% or something, that was what you had done, and individuals might get something inside of that range, that now is much more discretionary.

[00:09:15]
And so, that would fall into this category of things where it’s like, no, you can’t do something that’s discretionary without first bargaining with the union. Now, unions and companies can agree to things even before you get a complete contract negotiated. And so, they could, for example, say we want to continue to do this discretionary increase. And it’s always been in a range like this, and we’ll agree to keep it in a range like that. But we want to keep doing it the way that we were doing it, which is basically at our discretion.

[00:09:48]
A union could say yes to that and then the employer would be able to do it. Now, most of the time, unions don’t like that, right? They’d rather that be part of the whole package. So, this is where it becomes a bargaining strategy component. Maybe walk us through a little bit some experiences you’ve had where it’s like we have to decide, there is this thing, maybe it’s discretionary. Maybe we could argue it’s not. How does that play out in real life?

Dave Sapenoff: [00:10:17]
There are very few unions that will throw themselves in front of a wage increase, regardless of whether they negotiated it or not. I think the main thing for management to understand is that if there was a regularly scheduled wage increase or some discretionary merit increase that was due to the employees, the union will typically not step in the way of that, but in effect, we’ll tell the employees to look at that money as a down payment. We’ll add on top of that. And quite frankly, management will not get credit for that at the bargaining table.

[00:10:53]
I’ve been through multiple situations on both sides of the table where we’ve gone through those types of scenarios. And in terms of when it gets down to bargaining wages, management may bring up the issue. Well, look, this year alone, we already gave out a 3.5% wage increase. And as far as the union is concerned, I’m going to say 99% of the time they’ll basically say, we don’t care. We’re basically looking for more, and you did what you had to do, and we’re going to continue to bargain on top of that. So, for the management team, it’s a lose-lose situation. You’re putting money out there ahead of reaching an agreement. And again, you’re not going to get a heck of a lot of credit from it for it from the union.

[00:11:44]
One other thing too, about this whole status quo is that many unions will use this as a leverage point. And by that, what I mean is, let’s say you have something at the company that’s not working well. Attendance is an issue, for instance, and you were thinking about instituting some form of an attendance policy or program. The fact that you cannot do that during bargaining puts management in the position of being prohibited, sometimes from doing certain things.

[00:12:21]
One other thing, even though it’s technically outside the realm of terms and conditions of employment. You may have with some more aggressive unions an operational change you want to put into effect. The union made a demand that you bargain with them over the impact of that operational change on the bargaining unit. And as a result of that, sometimes management finds themselves hamstrung in terms of even implementing some basic operational changes during the bargaining period. And the unions see that and will use that as leverage at the bargaining table.

Phil Wilson: [00:13:00]
Yeah. Good points. Because of what you just said, this sort of highlights a little bit of the bargaining strategy side of this, which is that because the union is going to basically just take anything that happens before a contract and not really bake that into whatever the final agreement is, then the employer ideally would like to hold all that stuff off until you get to a final deal so that it is all baked into that final agreement. So, that’s generally what the employer wants to do.

[00:13:40]
Now, during Covid and in other situations in the labor market, there are many times where the employer really desperately wants to- we can’t attract talent unless we implement some sort of a wage increase. Then they have an incentive to try to do it in during the bargaining sessions. And oftentimes if unions see that, they might say no because they want the leverage of getting other things that they want in exchange for something the employer wants. So, there’s this whole back and forth in the bargaining strategy.
[00:14:14]
It becomes very specific to the employer’s situation. How does the union feel about their strength with this bargaining unit? How quickly do they want to get a deal? There are a lot of other factors that go into this, right?

Dave Sapenoff: [00:14:29]
From what I saw, you bring up a good point. Like during the Covid period, you’re absolutely right, a lot of unionized employers, went to their unions and said, look, we’re having difficulty attracting people, and we would like to institute the following policies, the following procedures or a wage increase in order to make ourselves more attractive in the marketplace. What a lot of employers found was that the unions were agreeable to that, but not agreeable to the numbers.

[00:14:58]
And as a result, you saw during the Covid period a lot of basic wage increases that far exceeded anything else that had been done before. And then as soon as the Covid scenario was over with, a lot of employers found themselves carrying a fairly heavy economic burden from something that they had negotiated with the union during Covid. So again, you bring up a very valid point, which is anytime you reopen a contract midstream, you open yourself to a lot of unanticipated issues. Put it under the column of no-good deed goes unpunished. But unfortunately, that’s what happens.

Phil Wilson: [00:15:46]
Yeah. And there’s a lot of situations- There’s a reason why unionized workplaces fell behind during Covid. And that’s because, in a non-union workplace, they were able to adjust wages on the fly as needed. They could make a lot of different adjustments. If you’re in this bargaining situation, you’re stuck. If you can’t get the union to agree, or if you say, we want to do X and the union says we want to do X plus y, and you don’t want that, then the employer doesn’t have to make the change. They can just say, well, we’ll just stick with what we currently have.

[00:16:22]
And so, you had a lot of situations where there were definitely situations where the unions were agreeable, contracts were reopened and things changed. But you can also get into that situation where it’s like, look, we’ll just wait till the contract reopens at the end of this expiration and we’ll see where we are at that point. Again, it just comes down to leverage and what are the goals of everybody. If you don’t come to some agreement, then you’re stuck with status quo, whether that status quo is a current collective bargaining agreement in place or what we’re talking about today, which is the procedures, the working conditions, and the situation that was in place before the union was voted in. That stuff has to stay until there’s been something else bargained.

Dave Sapenoff: [00:17:12]
That’s absolutely correct. And again, it tends to hamstring management to a certain point, especially if the organization is in a state of flux. I’m dealing with a client right now who had to initiate a lot of operational changes. An election occurred midstream. The union is extremely aggressive with in effect, admonishing management to maintain status quo and literally every operational change that this employer has wanted to institute.

[00:17:51]
We’re talking about different billing procedures. We’re talking about just how work is handed off from one group to the other has resulted in a demand from the union to bargain in effect, the effect of all these changes on the terms and conditions of employment of the employees in the unit. And in effect, if it constitutes a change in their term and condition, then the employer technically hasn’t maintained status quo. And that’s a violation of the act. So, it puts management in a very difficult place sometimes.

Phil Wilson: [00:18:27]
Yeah. Let me sum up this part with just, it’s really complicated. We’ll talk in a minute about how you get advice during this period. But the bottom line is this idea of what’s status quo. What are you allowed to do and what are you not allowed to change during this period is a complicated question. It’s a legal question. And then there’s also a strategic component to it. And if you haven’t done it before, the bottom line is, you really need to be thoughtful about any sort of change that happens during that period.

[00:19:05]
And we’ll get into what’s the team that you might want to have on your team to help you through all that. But that’s the big-picture idea. Now, I want to switch gears for a second and talk a little bit about during this period, the group that is often the most in the dark is the supervisors. So, you’ve got a group of managers who’ve never operated in a unionized environment before, and they don’t necessarily understand all the status quo stuff and things like that. Why don’t you walk through what should management be doing to educate frontline leaders and even, mid-level managers about operating in a newly unionized environment?

Dave Sapenoff: [00:19:51]
This also represents one of the larger changes that management has to deal with. Typically, after an election, there’s a change in the relationship with the employees. And again, depending on the nature of the election, depending on the employee group. Generally, what you see is a change in the attitude and behaviors of the employees themselves towards management. In effect, they’ll start acting like they are union. And that often represents new challenges for the front-line supervisors. In other words, you may have some of your more active union supporters start acting out things of, “wanting to negotiate.” directions given to them on the floor.

[00:20:38]
You may have groups of employees now talking about filing grievances. And quite frankly, no grievance process exists but they’ll talk about formally filing grievances. You may have spokespersons evolving. And one of the other things that’s very important for the front-line supervisors to understand. And again, this isn’t generally well known or used in a non-union environment, but basically, when you’re interviewing an employee and the employee has a reasonable expectation that that discussion is going to lead to discipline, they are entitled to a representative at that meeting- generally known as Weingarten Rights.

[00:21:26]
What you typically see is after an election is won, the employees themselves have been advised of this by the union and begin exercising that right. So, now every time management goes and talks to one of their employees and sits down and says, look, your work hasn’t been up to standard or there was a mistake made or something like that, you’ll find employees then saying, I want a representative at this, this is going to lead to discipline. And again, that puts frontline management out of sorts.

[00:21:57]
So, the main thing is educating supervision on how to deal with that type of activity, what we call protected concerted activity, where employees, one or more employees are acting on behalf or for mutual aid and protection of themselves, in effect, on how to deal with that so that they do not violate the National Labor Relations Act. One of the first things I always tell management, however, is during this period, don’t cede rights- and in effect, manage your business.

[00:22:30]
And that’s really the most critical thing that they can do here is, number one, hold people to performance standards, hold people to attendance standards, hold people to all the other policies and procedures that are part of status quo. And in effect, make sure that the business gets run. Don’t be afraid to manage people actively. And if the union intercedes or demands- let me give you an example. Let’s say you discipline an employee. The union may demand to negotiate over that action that you took.

[00:23:11]
The simple fact of the matter is that at that point, you’ll respond to the union and say, thank you very much, what do you need to know about it? We’re willing to provide you with that information, but we were acting within status quo. And leave it at that. So, the main thing at this juncture then also is educating your frontline supervision, much like you educated them on tips during the election campaign. Tips is still in effect. If management is or supervisors for that instance.

Phil Wilson: [00:23:44]
What does tips mean real quick?

Dave Sapenoff: [00:23:46]
Tips means you cannot threaten, interrogate, make promises, or engage in spying or surveillance on an employee’s union activities. So, for instance, then, even after the election, threatening employees who are engaged in union activities with disciplinary action where that was a protected, concerted activity of theirs, again, would violate the law. One of the bigger things here is, in effect, people start to conjure up all sorts of concepts and ideas of what’s going to come out of bargaining.

[00:24:20]
And again, you want to make sure that both management and the supervisors, the mid-level management, and supervisors understand, in effect, what could constitute illegal speech from a bargaining perspective. In other words saying to an employee, a supervisor says to an employee, ‘The company’s never going to agree to anything the union says. They’re just going to say no, and they’ll never be in agreement.’ So, saying things that invoke an intention of management not to engage in good faith bargaining would be a violation of the act. So, you want to make sure that your supervision and your mid-level management are all trained on that as well- what is legal speech, what is illegal speech.

Phil Wilson: [00:25:06]
Yeah. Let me sum that up. And of course, we’ve got a book on this, right? Managing In a Union Shop. And you train management teams on this all the time, whether they already have a contract, have been unionized for years. A lot of times, supervisors still don’t even understand this playing field. But if you’re newly unionized, you have no idea how any of this stuff works and you really need to get a primer on some of these core rules. And so, those core rules are, you still run the business, you still follow your policies and procedures.

[00:25:45]
During the status quo period, it’s an unfair labor practice to stop following those policies and procedures. So, you continue to manage the business. Just because a union doesn’t like it or an employee doesn’t like it, they can object, and they can ask to have a meeting about it. They can ask to have a representative in that meeting. You cannot deny them that. That’s something that’s changed that wasn’t really in place when you were non-union, that now is in place.

[00:26:12]
If I say I want my steward in a meeting with me, you have an obligation. If there’s any disciplinary action that can come out of this meeting, you have an obligation to allow them to have that representative. So, those are key changes that if you don’t really understand that playing field, it could be super easy to just try to do things the way that you used to that could really harm the company and could lead to you being found guilty of an unfair labor practice, right?

Dave Sapenoff: [00:26:46]
Or not do anything at all, which is you’re ceding it. The employees start objecting to what you’re asking them to do. And the supervisors put their hands up and say, well, all right, I don’t want to do anything that’s going to violate the law. So, in effect, the employees start dictating how the shop floor, for lack of a better term, gets run. And that is a huge mistake for management that you know this early on in order to cede that level of power and right to the bargaining unit members.

Phil Wilson: [00:27:17]
There’s also a risk there of erosion, right? So, if management isn’t enforcing its rules and isn’t following through on what is supposed to be doing, on one side, that can be an unfair labor practice. In other words, that could be considered a change. So, if the union doesn’t like whatever thing you’re not enforcing, they can object to that as saying, well, that’s a change in circumstances, that’s violating status quo.
[00:27:50]
The flip side is also true. If there’s something they don’t like, which is a rule that is in place, and you stop enforcing that rule because they’re complaining about it, you can actually lose the right to enforce that rule in the future, because you’ve created a past practice of now no longer following that rule. So, it’s really important for leaders to understand in this new environment, you need to follow the rules that are on the page. And don’t be intimidated out of following those rules and don’t change the rules while you’re in this period of status quo. Just follow the rules.

Dave Sapenoff: [00:28:34]
I think for a lot of management, one of the more difficult aspects of this is developing the discipline to deal with this. It requires a lot of extra work and a lot of extra effort. And the bottom line is, whether, during this period or during the contract you’re absolutely correct that if management does not enforce the current policies or doesn’t enforce something that was negotiated into the agreement, in effect, what they’re doing is they’re ceding rights or creating a binding past practice, which can work against them as well.

Phil Wilson: [00:29:14]
Yeah. Let’s switch gears now. We’ve got these two main things we’ve talked about so far. The first thing is this big idea of status quo and that’s the main thing that you need to have on your radar during this whole period. And then the second thing is that we need our supervisors to understand that they’re in this changed environment and how to operate in that changed environment, which means you need to train them.

[00:29:42]
And then now let’s talk about what’s the team and who I lean on. And here, I think you have really employers of various stages and various sophistication when you get into a situation like this where you’ve lost an election. Though some employers are big and already have internal expertise. They may already have an internal team that can do this. So, there are people that are at that end.

[00:30:13]
Most people don’t have that, especially smaller employers. A lot of the people that are being targeted these days aren’t in that position so they don’t have really in-house expertise at this. You might have somebody who has dealt with a union at some point, but generally, you don’t have anybody whose job is to do that. And so, in that case, you’ve got to figure out who your team is. Why don’t you talk a little bit about different ways that you have fit into employers that are in that situation?

Dave Sapenoff: [00:30:46]
Absolutely. Again, that’s one of the first things that management has to do heading into this bargaining phase is to try and understand how will they handle it and who will handle it. Initially, one of the things you want to do as soon as you’re contacted by the union is it’s very important that at least at that juncture, you establish a single point of contact, so this way, all communications from the union are going to a single person. And that person, at least initially, has the responsibility, for argument’s sake, on an information request.

[00:31:26]
I don’t want to underplay the importance of timely responding to a union’s information request. And we can talk about that in a little bit. But it’s important that they all come in, and one person is responsible for handling it. As you go into the actual bargaining phase, then management, philosophically, as you point out, wants to start asking themselves do we have the internal expertise? Do we want to involve a lawyer in terms of being our spokesperson or representative at the table? Do we want to involve an outside consultant, somebody like myself who has been through this or do we handle it internally amongst ourselves here?

[00:32:11]
And again, it’s based on the skill set that’s incumbent at the company. So again, it’s important. If the skill set isn’t there, generally speaking, what I have done in terms of being engaged as a consultant, I’ve acted as first chair, that is the chief spokesperson for the company. I’ve acted as an individual sitting next to the chief spokesperson for the company, which is typically an operations person or somebody higher up in the organization. And in effect, work out all the, you know, the signals and signs in terms of stopping conversations, things of that nature and advising them live at the table.

[00:32:56]
I’ve sat in a room away from the bargaining and in effect, as the bargaining occurs and, and teams come back on caucus or breaks, we then walk through what was said, how to then respond, things of that nature. If management doesn’t want- sometimes they don’t want somebody from outside the organization at the table. So, done it all different ways. And it’s all based on client needs, desires, skills. And again, that’s all part of the evaluation process as you head into bargaining.
Phil Wilson: [00:33:32]
Yeah. I think it’s important to emphasize too, that there’s always a lawyer involved at some level. And lawyers will sometimes be involved, like sitting at the bargaining table. So, instead of a consultant, you might have your lawyer sit at the bargaining table. Some lawyers really like to do that. Many don’t. The challenge with sitting at the bargaining table is you’re a witness to everything that’s happening in that room. And so, if there’s an unfair labor practice, charges filed, or whatever, you can end up not really being able to represent because you are a fact witness to everything that’s been happening.

[00:34:09]
So, because of that, many lawyers like to- I like to think of it as being the offensive coordinator of, you know, of bargaining. So, the example you gave of sitting in the room outside, you can review things, you can go through strategy, you can develop the proposals or the plays that you’re going to play. But you’re not actually on the field. So, that’s a second way that happens. And in those cases, many times they might ask us to be in the room and do the first chair negotiating but they’re involved in helping direct the strategy.

[00:34:47]
And again, of course, there’s a lot of legal advice that happens during this period as well. The actual bargaining of the contract isn’t really legal advice, but making sure that we are offering proposals and counter-proposals that are not going to make us at risk of unfair bargaining charges. You’ve already talked about the timing of things. The big watch-outs for employers during this whole bargaining process is you want to be seen as bargaining in good faith.

[00:35:15]
That doesn’t mean that you have to agree to things that the union is proposing. That doesn’t mean that you have to give in on things that are really important to you. But it does mean you have to meet with them regularly. You have to exchange proposals. You have to attempt to reach an agreement. Sometimes that’s possible. Sometimes that’s not possible. But you have to go through all of the steps to make sure that you can prove, look, we’ve attempted to reach an agreement. And so, things like what you brought up- The unions made an information request, and we sat on it for a long time. That’s not bargaining in good faith.

[00:35:50]
Now, you may respond to that information request by saying, like these four items on here, we don’t think we have to answer. We don’t think that they’re reasonable or related to the bargaining. But you need to respond quickly once you’ve reviewed the request and go, these ones, we’re working on, these ones we don’t think we have to respond to, and these we will respond to, but we’re going to respond to them differently. That would be an appropriate response.

[00:36:17]
So, you have this legal stuff that’s happening where you want to make sure that you’re getting advice around how do I avoid bad faith bargaining charges. You have the just tactical what’s happening in the room and who’s going to be delivering those messages. And then the last thing, even if you have somebody who could theoretically be your first chair spokesperson who is employed by your company, this takes a ton of time. And so, can they stop doing their day job for the hours and hours and hours it takes to negotiate a first contract? That’s another component to figuring out who’s on the team, right?

Dave Sapenoff: [00:37:04]
Absolutely. And again, for employers that have never been through this process before, let’s go back to the information request. It’s a daunting task because generally speaking, you’re going to get about a 2 to 3-page information request usually. That’s a very basic request from the union. And again, in advising employers, a lot of them will be like, we’ll look at this and say, oh my God, this is onerous, I’m not going to respond to this. Well, my job is to basically say, look, they’re entitled to this information legally. You need to respond regardless of the amount of time it may take for you to do that.

[00:37:45]
Some of the information, as you pointed out, Phil, has a relevancy issue to it. And again, there’s both an art and a science to challenging a union in terms of their information requests as to whether or not it’s relevant to the bargaining unit or not. I’ll give you an example. I’m in negotiations now where the union has the unit that they’re bargaining on behalf of receive ostensibly a ten-page information request from the union, and half of the information request was about another unit of employees that was not part of the bargaining unit.

[00:38:24]
The two groups were connected by there’s a handoff in information from one group to the other. And what the union was trying to do at that point was to claim that the demand for information on a non-bargaining unit was relevant because of this handoff that occurred between the two groups. And again, we consulted with an attorney on that to make sure that when we responded to the union we basically were clear that this group and their information request about this group was not relevant to these negotiations. Likewise, the union may ask for financial information.

[00:38:59]
And again, this is one of those other nuances where, in effect, you have a frontline supervisor, a mid-level manager, even somebody in upper management saying, ‘Hey, if we go to the bargaining table and the union asks us for X, Y, and Z, we’re out of business.’ Management has to understand that this concept of, “pleading poverty” or that a union request may put them out of business, puts them at legal risk for the union, potentially asking the company or the organization to open its books to them.

[00:39:33]
So again, there’s a lot of nuances in all of this, so that when the union asks for what appears to be close-held information, this idea of responding in a way that says, hey this is confidential information. And again, more aggressive unions may at that point say, ‘All right, we recognize that. We’re willing to negotiate over a confidentiality agreement so that you can reveal this.’ And again, this is where the attorneys really are best suited to guide that sort of conversation and whether or not the information is truly confidential, not confidential, or what should go into a confidentiality agreement. And again, it’s getting into a lot of detail, but this is how nuanced some of this comes during even the initial phases of bargaining.

Phil Wilson: [00:40:27]
Yeah. For someone listening, we’ve got multiple episodes coming. We’re already pretty deep into it, but we’re not going to get too much deeper into the actual tactical bargaining. We’re going to do a whole episode on that, and we’re going to do an episode on preparing for bargaining. So, we’re not going to get into all the details, but just big picture, there is this whole bucket around you have to be prepared to go into bargaining.

[00:41:01]
Again, without going into a lot of the details of it, just big picture. What are the kinds of things that an employer who’s never been into bargaining before needs to be thinking about doing to prepare for upcoming bargaining?

Dave Sapenoff: [00:41:14]
One of the first things- I always advise management of this heading into bargaining, because a lot of them head into bargaining with this expectation that they sit at the table and listen to the union make demands on them, and that their sole responsibility here is to respond to union demands. I always tell employers bargaining is a two-way street. The union will have its demands. You need to go to the table as well with your own demands. In effect, look at this as an opportunity to fix operational issues, HR issues, things that haven’t been working for you. Look at this as an absolute opportunity to fix those things at the bargaining table.

[00:42:02]
One of the first exercises I have management going through is regardless of what the union may ask for, what are the things that are important for you to maintain and be able to manage even in a unionized environment? Once you have an agreement, what needs to be in that agreement that will help you to operate the business? What problems do you want to fix? Second is to always have the employer basically do an economic assessment of their organization, the outside marketplace, how competitive they are, where they want to be in the marketplace, and things of that nature.

[00:42:46]
Also, to go through some fairly significant information gathering. So in other words, at this juncture, you want to again, at least start understanding what is the union likely to show up with at the bargaining table in terms of initial demand. Generally speaking, in the first meeting, the union typically walks in with a completely mocked-up agreement that represents, in effect, their best language from all their other agreements. So, all to develop all this understanding.

[00:43:17]
Then you start looking at, in effect, setting up your team. And that’s identifying again, who will be your chief spokesperson, first chair. Generally speaking, depending on the size of the organization, you generally want to have somebody who is operationally competent over the group, somebody who understands the mechanics of that group and how that group operates. Second, I typically like to have an HR type person at the table, if that is within the organization, so that that person, in effect- because a lot of what the conversation is going to be about is policies, procedures, terms and conditions of employment for the employees.

[00:43:57]
And generally speaking, I also like to have somebody who has financial acumen at the table. And again, I don’t like to have and will typically tell the employer don’t have the seniormost person in any of those organizations at the table because in effect, you want to maintain what I call some level of hidden authority. Somebody may have to go back and ask for permission on something. And then first and foremost, somebody at the table who can take notes. And I don’t want to, you know, diminish that. It’s really the group that keeps the best notes are the ones that generally do the best. So, that typically is what your team looks like.

Phil Wilson: [00:44:48]
And just to be clear, they don’t have to all be in every single session. So, you can have some sessions where you know this one’s going to all be about policy stuff, so we need the HR person. But the finance person doesn’t necessarily have to be there. And then this meeting we know is going to be all about the economics, so we have to have the finance person there. You can mix up the team a little bit of based on what you anticipate is going to get negotiated.

Dave Sapenoff: [00:45:14]
Yes.

Phil Wilson: [00:45:15]
I think that’s a great layout of what happens. We talk about information requests, but it’s also important- we can make information requests of the union as well. So, each party can ask for information. And then there’s this bigger picture. Ideally, we want to reach an agreement that is going to be as favorable for us as it can be. The union, of course, is wanting to do the same thing. So, then you have to start figuring out, okay, what’s our strategy to get there?

[00:45:53]
One thing I forgot to ask- You said the union shows up with their language and their language is coming from other contracts that they’ve negotiated where they’re like, ‘Oh, this is a really good clause. Let’s try to get that on all of our other agreements.’ On the management side, where do those words come from? Where does management go find their favorite contract clauses?

Dave Sapenoff: [00:46:19]
Typically, the main role of either the attorney or the consultant is to supply management with that basic information. A lot of this is also available online. You can find a lot of boilerplate language. The main thing I always tell management, however, is the union’s going to come in with typically boilerplate language, their best language from any number of their agreements. And I always tell management, don’t let the union force fit you into their model of what a union shop looks like. You are a unique organization with unique needs. Do not be afraid to demand to negotiate unique language that suits your operation.

[00:47:07]
And again, that’s typically why a lot of companies will turn to a consultant or an attorney because of just the breadth of knowledge of different contract language clauses that are available out there. You can find examples of contracts on the Department of Labor website, FMCS. A lot of contracts are out there on the web. But typically, again, the consultants are the ones that know specific industries, know specific unions, and can pull that information for the employer and find good language or design language for them that suits their operational needs.

Phil Wilson: [00:47:49]
Yeah. I’d be remiss if I didn’t also mention my book on model contract clauses. If you’re somebody that is thinking about doing this on your own, which I wouldn’t really advise, but let’s just say you’re like, ‘I’m going to try this on my own.’ The way that I developed that book, you can go grab whatever contract language you want off of whatever website you want, but you really don’t what a good clause looks like and what a bad clause looks like and why. And the whole point of that book I did is to have on each topic examples of this is what a pro-union clause looks like.

[00:48:33]
It’s sort of like Goldilocks and the Three Bears. So, this is pretty favorable to the union. This may be too favorable to management. But this is what a really strong pro-management clause looks like. And then here’s one that’s down the middle. And the point of that is to get yourself to a point where you can evaluate what good language looks like versus bad language once you understand what it is the union’s going for, and then what a really strong management clause looks like.

Dave Sapenoff: [00:49:05]
Absolutely. And this is something that I would say for management that has never worked with a union agreement before, this is probably the most daunting thing because labor agreement language, contract language is so nuanced. For argument’s sake, a sentence that, you know, let’s just say, overtime will be calculated for a week if an employee worked a paid holiday or took a vacation day- that holidays and vacation count towards the overtime bill. That same sentence, if I say the overtime calculation will be predicated upon an employee having worked a paid holiday, vacation, etc. That etc. at the end of the sentence changes the whole nature of the sentence.

[00:50:04]
In terms of interpreting a contract, the first example I gave, holidays, paid holidays, and vacation means to include one is to exclude others. In the second example with etc. that means of a kind, which means those are only examples. So, basically we’re saying that any paid time off could possibly be included towards the overtime bill. And for an employer that has never worked with a labor agreement before, those are the nuanced items that they may miss or end up agreeing to that, now they find themselves working under a very prohibitive agreement or very expensive agreement.

Phil Wilson: [00:50:48]
Yeah. You’ve said it before, but it’s there’s a lot of art to this in addition to the science. And a lot of it is really just hard knocks. Somebody gets sneaky and figures out a weird way to interpret a clause, and all of a sudden what you thought was really clear and concrete has now become a gravel pit. And so, as you’re looking at clauses, either that they’re presenting to you or you’re drafting your own clauses, you really have to look at it from the other side and be like, ‘Okay, what are they trying to accomplish here? What are the watchouts there?’.

[00:51:31]
And then same thing- how might this be interpreted if you were on the other side? How might they try to twist some of these words to be more favorable to their position? Every single word on that document is important and needs to be looked at that way.

Dave Sapenoff: [00:51:49]
I’ll give you a very recent example. And again, after six years of being with the Teamsters and looking at hundreds of agreements, and being in on dozens of negotiations with the Teamsters. Just recently we were in negotiations with a union that had a clause in it that says, ‘Management will respect bargaining unit. Employees will act in a cooperative fashion with the union.’ All sorts of really nice flowery language about establishing a great relationship. The bottom line is when we got to the table, counter-proposed and said, no, we don’t agree to that language because it’s nothing more than a grievance machine.

[00:52:34]
In effect, you say, even though it sounds nice and the union rep says, ‘Dave, you don’t agree that we should cooperate?’ I said, ‘Well, what does cooperation mean? In a sense, this language basically says the minute you don’t feel I’m cooperating, that’s subject to the grievance process. It’s in the agreement. So, the answer is no. We don’t like the language. And sorry, but not today.’ And so, those sorts of things. It sounds good. The union is sitting there putting pressure on the local management team to say, oh, come on, you don’t want to establish a partnership with the union? But you have to be careful because that language carries weight. Everything in the agreement carries weight.

Phil Wilson: [00:53:21]
Yeah. And like you say, it’s all grievable, right? Unless you are very specific about this is not subject to the grievance procedure, it’s all grievable. And so, you have to have thought through all of that as you’re drafting the agreement. We’re coming up on time so let’s sum up with what are the key mistakes that you see employers make at this phase. They’re just unionized. They’re going through the bargaining preparation. What are what are the biggest mistakes that you see?

Dave Sapenoff: [00:53:57]
For management, there may be some hard feelings after having lost an election. And I always tell management, look, it’s over. You’re going to bargain. Go into bargaining with the clear mindset that you’re going to reach an agreement with the union that suits everybody’s needs, yours, the employees and the unions. So, go into that. And some of the bigger mistakes based off of that then is an employer doesn’t go in with that attitude. They’re still fighting the war per se.

[00:54:32]
That typically leads to making statements of an intention not to bargain in good faith. We’ll just say no to everything. Talking to employees about there’s going to be a strike. The inevitability of a strike. Things of that nature. So, this very early on establishing a pattern of communications and speech that would indicate that the employer is not willing to bargain in good faith. That’s usually a huge mistake. I would say not responding to the union’s information request timely and completely strategically, and we’ll talk about that in later episodes, but not responding to information requests, has long-term consequences to it.
[00:55:17]
So this idea of while it may seem burdensome, take the information request seriously. What you sometimes find is an employer circumventing the union and still direct dealing with employees, trying to deal with employees on individual bases, trying to get things done on an individual basis. And again, generally recommend against that. Once the union is the sole and exclusive representative, you cannot direct deal with an employee or group of employees or another employee representative.

[00:55:54]
Not remembering tips. No threats. No interrogation. No promises. No surveillance on union activity. And ignoring employee Weingarten rights. Again, that can lead to a charge, an unfair labor practice charge at the board. And that changes your stance at the bargaining table later on. And finally, I would say the single biggest mistake is not managing the business. And that is whatever policies and procedures are in effect, manage your business, manage the employees, maintain control.

Phil Wilson: [00:56:35]
I want to build on just one of them. So, you talked about don’t go directly to employees. So, of course, direct dealing is illegal because the union is the representative. But the flip side of that is you’ve got to remember a union is a political organization. They just won a vote. And now they’re representing this group. But at the end of the day, they’re still also trying to shore up their own support and trying to figure out what’s this bargaining unit going to be.

[00:57:07]
And the more that you give them opportunities to be in that leadership role and do that representation and help them understand, like you are not trying to like, you know, kick their legs out from under them. You’re just trying to get a deal. You need to be able to run your business. You’re going to be reasonable to deal with as long as they can be reasonable to deal with. The quicker you can get into that mindset.

[00:57:37]
Now, look, this is very personality-driven. Some unions are just going to want to fight just to fight. You may have a union whose demands are so out of the realm of reason that you’re not going to be able to get to a deal or you may end up having a strike. A lot of things can happen. But if you approach it with the mindset of, okay, this is now my business partner, I need to start working on a deal that we can work together that’s reasonable. You’re going to position them in a way that you’re going to build trust with them.

[00:58:19]
Many times you can get into a situation where you can even start talking to them a little bit about, look, I understand some of the challenges you’ve got with this, with this group. But we both are trying to get a deal here. Let’s talk a little bit about how we can make that happen. You can put yourself in a much better position to get what you want and what you need out of the negotiation if you remember that this is a political organization and you are now dealing with the head of that political organization- you can really help yourself out.

Dave Sapenoff: [00:58:54]
Absolutely. And again, every union has its own distinct personality and character. Some unions will very tightly control their committee of employees during negotiations. Other unions will literally put the employees out front and let the employees themselves actually do the negotiations with the union sitting off to the side. So, there are all different personalities. It’s a matter of understanding that. And one thing I always admonish the employer to do is take the high road. Take the high road. Respond to the union. Talk respectfully at the table. Always maintain your sense of control with the union.

[00:59:46]
Again, over time, rapport will be built. And again, during the bargaining when we talk about bargaining, process, and things, that allows you sometimes to take a sidebar with the union rep and talk through an issue. They’ll let you know what they need and then you can work those things out. But again, if you treat the union straight out of the chute as “the enemy}, that’s how they’ll respond to you. And then they’ll do what they need to do. And sometimes that’s where it gets ugly.

Phil Wilson: [01:00:21]
I think that’s a great place to stop. So, anything else before we move on to the next episode where we’ll dig even more into the details of getting ready for bargaining and doing it?

Dave Sapenoff: [01:00:33]
No. I think we covered a lot this morning. And I hope this was helpful and I look forward to talking with everybody in future episodes.

Phil Wilson: [01:00:42]
Yeah. Thanks, Dave. Appreciate it. I’ll see you soon.

Dave Sapenoff: [01:00:45]
Thank you. Phil.