Preparations for Negotiations
Selection of Negotiating Team:
The Association’s first task when gearing up
for negotiations is to assemble a negotiating team. This should be done
six to nine months before expiration of the current collective
bargaining agreement. When selecting members of the negotiating team,
keep in mind the following:
The Association should endeavor to have at least one or two people who
have sat in on prior negotiation meetings. This will keep the public
agency honest as to what had occurred in previously negotiated
Attempt to select someone good with numbers and graphs. This will be
the person who will likely prepare salary surveys and put together other
data used in negotiations.
If your association has someone that is well known or otherwise gets
along well with city officials and local politicians, it would be
favorable to have him on your negotiating team. This person may provide
an invaluable service should negotiations reach a stalemate.
Associations who traditionally use a professional negotiator such as
their POA attorney, the selection is taken care of. If your association
does not utilize a professional negotiator (which you should), someone
such as the Association president, vice-president or other association
board member with some negotiation skills and training should be used.
Your negotiating team should consist of
somewhere between three and five people in total which helps foster a
more informal environment for the negotiation process.
With your negotiating team in place it is
now time to put them to work. The team members should be given specific
tasks, fairly dividing up the work so as to not overwhelm any one
individual. The initial information obtained should include the
An informal survey of your membership should be taken to obtain topics
they wish addressed in negotiations. After the topics are gathered, you
may wish to go one step further and then have your membership prioritize
the topics by secret ballot. The results of any prioritization should
remain within strict confidence of the negotiation team to avoid
allowing the agency learning what is and what is not important to you
and your members.
Salary and Benefit Survey.
Knowing the topics of interest to your members obtained in the survey
above, the Association should conduct a survey of traditionally compared
agencies to determine your rank in regard to the topics of interest to
your members. If you do not have a list of traditionally used agencies
for a survey, you can either develop one based on geography or
population. Avoid attempting to reinvent the wheel. If there is in
place a list of survey cities which has been used for many years you
should continue with that list. You will likely spend most of your time
at the negotiating table arguing the validity of the surveyed agencies
if you attempt to create a new list. If there are problems with the
traditionally used list, bring it up at the negotiating table and try to
eliminate one or two of the agencies and replace them with agencies both
sides can agree to.
Agency’s Financial Condition.
The Association should obtain at least the last two years budgets as
well as any proposed budgets. Additionally, obtain at least the last
three years of the Comprehensive Annual Financial Report (CAFR). With
these documents you will be able to ascertain if the agency is putting
funds into areas which should more appropriately be diverted to
increasing public safety benefits. Additionally, you will be able to
determine if the agency is hiding funds from year to year, such as
budgeting ten million dollars for the police department when only 9.5
million is used, thereby allowing the agency to use the half of million
dollars toward any other project they desire.
Other Recently Negotiated Contracts.
Obtain the most recently negotiated contracts from other bargaining
units in the agency. This will be a strong indicator of the agency’s
position at the negotiation table as well as may provide you information
on benefits and other increases other bargaining units have obtained
which you have not.
Obtain from the local elections monitor (city clerk, county clerk or
secretary of state) political action reports from the agency’s elected
officials from the most recent election. This will let the Association
know who are the biggest supporters of the elected officials and who
will likely have their ear should the need arise to communicate your
position to them. This information is public record and must be
disclosed upon request.
Gearing Up Before Negotiation Meetings
The negotiating team, after looking at the
membership’s wish list as well as comparing the topics to surveyed
cities should then put together the Association’s opening proposal.
While this proposal should be reasonable and realistic, it should
include items that can be removed from the table during the negotiation
process (“throw aways”). The lead negotiator should then send the
formal request to the agency, along with the Associations opening
proposal, requesting that the meet and confer process commence.
Contemporaneous to this opening proposal
going to the agency, the negotiating team’s “schmoozer” or president
should be out making friends with the local politicians. The topic of
such meetings should not be centered on negotiations, but rather warming
up to the individuals, letting them know the Association is there to
assist them in whatever they need. This contact will go along way when
agency staff presents the Association’s opening position to the elected
officials for a response. Of course, it is best to have this kind of
communication and relationship throughout the term of the contract where
The Meet and Confer
This is the time and place where all of the
hard work and information gathering will hopefully pay off. You will
have to demonstrate logical reasons for the requested salary and
benefits and have data to support your positions. As those of you who
have sat in negotiations realize, logic does not always control. This
is where the behind the scenes conversations with politicians or
pointing out bad spending practices by the agency will assist you in
getting the agency to see the correct “logic.” Every tool available to
you should be ready to be utilized for negotiation meetings. You should
be aware of the number of people who have left your agency recently, the
number of positions that are open and arguably can’t be filled due to
the low salary and benefits.
When negotiations at the table stall
or become a waste of time, below is further discussion on how to get the
agency to come around to your position.
Negotiations After Impasse:
Association Options - Politics or Legal
gearing up for negotiations, hopefully your association has developed
some political ties with members of your governing body. Now is the
time those political endorsements, favors, and friendships come into
play. When negotiations reach an impasse, the association will have
options which may be utilized simultaneously, or one before the other.
One option is the legal route. With the implementation of SB 440,
binding interest arbitration is again alive in California, effective
January 1, 2004. The other option available is the political one which
ranges in actions from picketing city council meetings to work slow
downs and other pressure creating activities. While these can be done
in either order or simultaneously, we will first look at the binding
interest arbitration option.
One of Gray Davis’ final pieces of
legislation signed before leaving office was SB 440. It’s predecessor,
SB 202 was held unconstitutional by the California Supreme Court. SB
440 is a “new and improved” version designed to withstand some of the
constitutional challenges SB 202 faced. While SB 440 is facing serious
constitutional challenges by cities and counties, until those challenges
are made and ruled upon, binding interest arbitration is back and in
full force. As you recall, while SB 202 was in its infancy, there were
numerous contracts negotiated just under the threat of going to binding
arbitration. Regardless of the ultimate fate of SB 440, it will likely
have the same effect of getting people at the bargaining table to think
Persons Covered Under SB 44
All firefighters and “law enforcement
officers” employed by a “local agency” represented by an “employee
organization” have the right to binding interest arbitration.
Law enforcement officer
- is defined as any peace officer pursuant to the following Penal Code
830.1 - Police officer, deputy sheriff, district attorney,
investigator, Los Angeles Harbor officer;
830.31 (b) - Park rangers;
831.31(d) - Housing authority police
831.32(a) - Community college police
831.32(b) & (c) - School police
830.33(a) - BART police officers;
830.33(b) - Harbor police officers;
830.33(d) - Airport police officers;
830.35(a) - Welfare fraud investigators;
830.35(b) - District attorney child
830.5(a) - Probation officers;
830.55(a) - Correctional officers.
- is defined as any governmental subdivision, district, public and
quasi-public corporation, joint powers agency, public agency or public
service corporation, town, city, county, city and county, or municipal
corporation, whether incorporated or not or whether chartered or not,
except the State of California. (CCP '1299.3(f))
- is defined as any organization recognized by the employer for the
purposes of representing firefighters or law enforcement officers in
matters relating to wages, hours, and other terms and conditions of
employment within the scope of arbitration. (CCP '1299.3(b))
Scope of Arbitration
Matters which are subject to arbitration
under SB 440 include salaries, wages and overtime pay, health and
pension benefits, vacation and other leave, reimbursements, incentives,
differentials, and all other forms of remuneration. (CCP '1299.3(g))
Going From Negotiations to
Prior to going to binding arbitration, the
arsenal of tools currently available to an association may still be
utilized. These tools include using political pressure by various means
and tactics to convince the employer to do the right thing. For larger
and more politically active associations, the political route may still
be the best arena for obtaining an association’s desired results. For
smaller or less politically involved associations, other activities may
be utilized, such as slow downs, speed ups, and the like. If none of
these actions are successful, binding interest arbitration may be an
association’s only remaining course of action.
Step One - Declare Impasse.
Either party must declare an impasse. Impasse may only be declared
after exhausting all mutual efforts to reach an agreement. (CCP
Step Two - Decide on Mediation.
Decide if mediation would be helpful. If the parties are unable to
agree to the appointment of a mediator, mediation is not required. (CCP
'1299.4(a)) There may be other local impasse rules which may be
followed prior to submitting the issue to arbitration. For example,
either local rules or the MOU may call for an impasse procedure to
include mediation and/or advisory arbitration. Submitting to such
procedures could considerably prolong matters. No doubt, one area that
will be litigated by the courts will be to interpret whether SB 440 may
be implemented without going through impasse procedures. Until then, it
is suggested that if the impasse procedures are not significant, the
association should submit to them to avoid a losing employer challenging
the arbitration award by claiming impasse procedures were not followed.
Step Three - Request Arbitration.
Only the association may request binding arbitration. To do so, the
association must make this request in writing to the employer. (CCP
Step Four - Arbitration Panel
Selection. Within three days after receipt of
written notification to the employer, each party shall designate a
person to serve as its member of an arbitration panel. The two selected
members shall then, within five days, designate an impartial person with
experience in labor and management dispute resolution to act as
chairperson of the arbitration panel. (CCP '1299.4(b)) If the two
members are unable to mutually select a chairperson, a joint request
shall be made of the American Arbitration Association or California
State Mediation and Conciliation Service for a list of seven impartial
experienced persons who are familiar with matters of employer-employee
relations. (CCP '1299.4(c)) After receipt of the list of arbitrators,
and within five days, if the members are unable to agree on any
arbitrator on the list they must alternately strike names from the list,
with the last name remaining being the chairperson. Determining who
strikes first shall be determined by lot. (CCP '1299.4(c))
The above time limits may be extended by
mutual agreement. Additionally, the parties may agree to simply use one
arbitrator in lieu of a panel of three. Depending on the association’s
resources, this may be more feasible.
Step Five - Submit Last, Best and
Final Offer. Five days prior to the
commencement of arbitration hearings, each of the parties shall submit
to the arbitration panel a last, best offer of settlement as to each of
the issues within the scope of arbitration. (CCP '1299.6(a)) It is
important to note that any issue included in the last, best offer must
have been made in the bargaining process prior to the arbitration
request. (CCP '1299.6(a)) The parties may by mutual agreement elect to
submit as a package (all issues) the last, best offer of settlement made
in bargaining (excluding issues outside the scope of arbitration, i.e.
non-economic matters). (CCP '1299.6(b))
Step Six - Duties of Arbitration
Panel. Within ten days of being established,
the arbitration panel shall meet with the parties or their
representatives, either jointly or separately, make inquiries and
investigations, hold hearings, and take any other action, including
further mediation, that the arbitration panel deems appropriate. (CCP
'1299.5(a)) To complete these duties, the arbitration panel is
authorized to issue subpoenas for witnesses or documents, conduct
investigations, administer oaths, and inspect employer and/or employee
organization records. (CCP 1299.5(b))
The arbitration panel, within thirty days
after the conclusion of the hearing, shall separately decide on each of
the disputed issues submitted by selecting, without modification, the
last, best offer that most nearly complies with the applicable factors
described below. If the parties had decided on a last best offer
package proposal, the panel shall decide which package, without
modification, most nearly complies with the follow up factors. (CCP
Factors Utilized by
Stipulations of the parties.
Interest and welfare of the public.
The availability and sources of funds to
defray the cost of any changes in matters within the scope of
Comparison of matters within the scope
of arbitration of other employees performing similar services in
corresponding fire and law enforcement employment.
The average consumer prices for goods
and services, commonly known as the Consumer Price Index.
The peculiarity of requirements of
employment, including, but not limited to, mental, physical, and
educational qualifications; job training and skills; hazards of
Change in any of the foregoing that are
traditionally taken into consideration in the determination of
matters within the scope of arbitration.
Step Seven - Arbitration Panel’s
Decision. After receipt of the arbitration
panel’s decision, the parties are not allowed to publicly disclose the
decision for a period of five days. During that five-day period, the
parties may meet privately, attempt to resolve their differences and, by
mutual agreement, amend or modify the decision of the arbitration panel.
(CCP 1299.7(a)) After the five day period, the arbitration panel’s
decision, as may be amended or modified by the parties, shall be
publicly disclosed and shall be binding on all parties, unless there is
an unanimous vote of the governing body to reject the decision.
If specified by the arbitration panel (so make sure to ask), the
decision shall be incorporated into and made a part of any existing
Memorandum of Understanding between the parties. (CCP '1299.7(b))
As most association leaders already know,
associations should be selective in their battles. However, this does
not mean that the association should roll over for everything either.
Association respect (by the employer) is gained over years of actions or
inactions. Associations who rarely, if ever, take things to the mat or
challenge the employer gain little respect at the bargaining table or
elsewhere. The flip side is also true. Those associations that battle
over every minor issue may be seen as an association that simply cannot
be pleased, so why bother. While it is a fine line, somewhere in the
middle is where you want to be. The association should be like a quiet
giant in the position of, “do as I ask and don’t piss me off.”
Depending on the circumstances surrounding the negotiations impasse,
there are various tools available to an association to put political
pressure on the decision makers. A few things to keep in mind when
utilizing these tools are the following:
Always keep this in mind. The public could
care less about your pay, medical coverage and pension plan. All they
want to know is “what is in it for them.” Any public positions or
statements by the association should always keep that focus. The
message should always be public safety first. You do not want wage
increases for yourselves, but simply to attract better qualified
candidates and to keep more experienced officers from leaving.
keep in mind that once the fight is over, you and your members will
still be working there. Avoid activities where one or just a few
members are involved who can be singled out for retaliation. Always
keep in mind your department policies and the law. You should be in
very close contact with your association’s attorney during these times
to ensure you are not going to get yourself or any of your members in
trouble. For associations in the Legal Defense Fund, please keep in
mind that concerted labor activity should always be discussed with the
LDF Trustees prior to the activity to ensure coverage.
Let the Games Begin
Again, the ideas listed below are not in any
particular order. Just as in your use-of-force guidelines, you can
start with simple verbal commands or jump to a higher level, based on
Keep in mind that most of these tools are
not to deliver your message to the public but are designed to simply
annoy the decision makers into giving in to your position.
Storm City Council
– While an association is at impasse, no city council
or governing board meeting should take place where members of your
association and the public aren’t present publicly chastising them
for their lack of concern for public safety.
- Plan a few well organized picketing events. Keep these events
spread out to avoid burning out your membership.
- During impasse, the association should make known at every
significant public event, such as parades, Christmas tree lightings,
the Mayor’s Gala and any other event of interest to the decision
makers, that the association is upset about the lack of concern for
- Again, keep the message focused on “public safety.”
- Nothing seems to get more attention than a billboard entering the
city limits which reads that crime is up and the City could care
less about your safety.
- GardenGroveSucks.com was a big hit.
- Getting your members to apply at a large local
agency, which causes an influx of personnel file checks by
background investigators always sends a strong signal. Keep this
for last, as some of your members may ultimately leave anyway.
- This involves informing your members to comply
closely with Department policy and obey all speed limits. It also
involves having members do thorough investigations, such as
canvassing the entire neighborhood when taking a 459 report and
asking for a back-up unit on most calls. Of course, exercising
officer discretion in not issuing citations and making arrests is
- This one is very rarely used and only in dire circumstances. As
with all of these, please consult your association’s attorney before
even discussing this issue with your members.
- Blunders by the City Manager, Mayor, or City
Council members or wasteful spending should be highlighted and
pointed out to the public at every opportunity.
Referendum / Ballot Initiatives
- Getting the public to vote for a wage increase is seldom going to
fly, however, as a pressure tactic, seeking petition to file a
referendum on eliminating the City Manager’s position for a full
time elected mayor may cause the City Manager to rethink his or her
- Again, the message should be for “public safety” in
getting the public to attend city council meetings and to call the
City Council members (preferably at home) to chastize them for their
- If any members of the governing body are up for election, the
association should begin actively campaigning against them, again
for their lack of concern over public safety. If you are in a
non-election year, make political flyers which you can explain will
be mailed out the following year during the election season.
Focus on an Individual
- Avoid spreading your energy. Focus on a city
manager, councilperson, mayor or police chief and keep the pressure
up until that person assures you his loyalty and then move on to the
- Every high profile crime that takes place should
result in the association’s uproar at the governing body for not
having enough officers on the street, which could have avoided the
course, other ideas that cops come up with are very imaginative. Just
keep in mind, the idea is to annoy your opponents into giving in to your
position and almost equally as important, to let them know that next
time they should agree with you much sooner.