When Results Matter
Your members deserve having your Association in the best bargaining position possible when it comes to negotiating a new contract. Who better to have than the one attorney, who in recent decades, has negotiated more successful public safety contracts than any other attorney in Southern California. Dammeier’s success at the bargaining table speaks for itself. There are those Associations that simply agree to whatever the City Manager or City Council thinks is what their members’ deserve. For those however that want to engage in the meet and confer process on a level playing field, Dammeier has shown time and time again he can get the job done.
El Monte POA – 21.75% (3yr) | Sierra Madre POA – 32% (3yr) | Inglewood POA – 18% (3yr) | L.A. Schools – 10% (1 yr)
San Gabriel POA – 17% (2yr) | Mono DSA – 18.5% (2yr) | Arcadia POA – 26% (3yr) | Barstow POA – 30% (3yr)
Glendora POA – 32% (5yr) | Alhambra POA – 19.5% (4yr) | Buena Park POA – 12.5% (2yr) | Compton Schools POA – 15% (1 yr)
Rancho Cucamonga Fire – 22% (3yr) | Monterey Park POA – 21.5% (4yr) | Costa Mesa POA -20% (3yr) | Culver City POA – 20% (3yr)
Cypress POA – 19.5% (3yr) | LaVerne POA – 17% (3yr) | Covina POA – 10% (1 yr) | La Palma POA – 16.4% (3yr)
Fontana POA – 22% (3yr) | Santa Paula POA – 8% (1yr) | Montebello POA – 10% (1yr) | Monrovia POA – 36% (5yr)
Rialto POA – 26% (4yr) | Torrance POA – 16% (3yr)
Why Independent Counsel is Best for Negotiations
When you need a doctor for your knee injury, you can see your general practitioner who will be able to help on a limited basis but most people would want to see a specialist with education and experience in the specific field they need help in. Attorneys are no different. If you want the most helpful assistance, getting an expert in the required specialty is best. While there may be a number of litigation or discipline attorneys out there that claim to be labor attorneys or negotiators, ask them to name the last 10 labor contracts negotiated (and the results) and you will be able to quickly determine if in fact they have the expertise you need.
Even if you find an attorney that dabbles in contract negotiations, it is good practice to not use the same attorney that handles your disciplinary matters to also handle labor issues such as negotiations. As you would expect, your attorney handling discipline must sometimes become adversarial to those trying to discipline his individual client. This sometimes includes the attorney attacking the credibility of management and even POA members (adverse witnesses). Any attorney in such a dual role risks creating a conflict between representing the best interests of the individual client or the association as a whole.
Like anything else, when you need help, find someone that has the experience and long proven track record. There is little doubt that when it comes to public safety negotiations in California, Dieter Dammeier is the best choice.
Your city is paying tens of thousands to hire an expert attorney that specializes in labor negotiations. Why would you want to go to the table with someone not on par with such experience. The legal twists and turns out there with the new pensions rules, medical coverage mandates, leave requirements etc. etc. necessitate you have someone on your side that is an expert in such topics. This is not the place to bring in an attorney who has very little experience negotiating public safety contracts. This is also not the place to bring in someone from out of the geographical area, who knows nothing about surrounding agencies, local politics or other important local information utilized at the bargaining table.
Dieter has negotiated hundreds of these contracts and knows the traps the other side will set, if you are not experienced enough to see it coming. Dieter has instructed thousands of police and fire association leaders, as well as other attorneys, over the years on contract negotiations. While Dieter’s primary experience has been negotiating public safety contracts, he also brings other experience to the table. He was a police officer before becoming an attorney. As an attorney, he litigated cases on behalf of public safety employees in many aspects of employment law and at all levels in our courts, including arguing cases before the California and United State Supreme Courts. It is with this background and experience that Dieter is known for working tirelessly to put you and your members in the best position possible at the bargaining table.
Selection of Negotiating Team
The Association’s first task when gearing up for negotiations is to assemble a negotiating team. This should be done six to nine months before expiration of the current collective bargaining agreement. When selecting members of the negotiating team, keep in mind the following:
Consistency. The Association should endeavor to have at least one or two people who have sat in on prior negotiation meetings. This will keep the public agency honest as to what had occurred in previously negotiated contracts.
Numbers. Attempt to select someone good with numbers and graphs. This will be the person who will likely prepare salary surveys and put together other data used in negotiations.
Variety. It is most beneficial to your association to have a variety of team members who will challenge the information provided at the bargaining table by the other side and who also have relatively positive working relationships with city officials and politicians.
Lead Negotiator. Associations who traditionally use a professional negotiator such as their POA attorney, the selection is taken care of. If your association does not utilize a professional negotiator, 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 following:
Wish List. An informal survey of your membership should be taken to obtain topics they wish addressed in negotiations. After the topics are gathered, you may wish to go one step further and then have your membership prioritize the topics by secret ballot. The results of any prioritization should remain within strict confidence of the negotiation team to avoid allowing the agency learning what is and what is not important to you and your members.
Salary and Benefit Survey. Knowing the topics of interest to your members obtained in the survey above, the Association should conduct a survey of traditionally compared agencies to determine your rank in regard to the topics of interest to your members. If you do not have a list of traditionally used agencies for a survey, you can either develop one based on geography or population. Avoid attempting to reinvent the wheel. If there is in place a list of survey cities which has been used for many years you should continue with that list. You will likely spend most of your time at the negotiating table arguing the validity of the surveyed agencies if you attempt to create a new list. If there are problems with the traditionally used list, bring it up at the negotiating table and try to eliminate one or two of the agencies and replace them with agencies both sides can agree to.
Agency’s Financial Condition. The Association should obtain at least the last two years budgets as well as any proposed budgets. Additionally, obtain at least the last three years of the Comprehensive Annual Financial Report (CAFR). These days, these documents are usually posted on the agency’s website and can easily be obtained. With these documents you will be able to ascertain if the agency is spending funds in less important areas and whether there are available funds to be spent on personnel. Additionally, you will be able to determine if the agency is hiding funds from year to year, such as budgeting ten million dollars for the police department when only 9.5 million is used, thereby allowing the agency to use the half of million dollars toward any other project they desire.
Other Recently Negotiated Contracts. Obtain the most recently negotiated contracts from other bargaining units in the agency. This will be a strong indicator of the agency’s position at the negotiation table as well as may provide you information on benefits and other increases other bargaining units have obtained which you have not.
Politicians Contributors. Obtain from the local elections monitor (city clerk, county clerk or secretary of state) political action reports from the agency’s elected officials from the most recent election. This will let the Association know who are the biggest supporters of the elected officials and who will likely have their ear should the need arise to communicate your position to them. This information is public record and must be disclosed upon request.
Gearing Up Before Negotiation Meetings
The negotiating team, after looking at the membership’s wish list as well as comparing the topics to surveyed cities should then put together the Association’s opening proposal. While this proposal should be reasonable and realistic, it should include items that can be removed from the table during the negotiation process (“throw aways”). The lead negotiator should then send the formal request to the agency, along with the Associations opening proposal, requesting that the meet and confer process commence.
Contemporaneous to this opening proposal going to the agency, the negotiating team should be assessing where the Association stands with regard to community support and the decision makers with the agency. Optimally, the public will be aware of the value that experienced, qualified and veteran officers will bring to the Department and the community. Educating everyone as to the dangers and risks of our profession is sometimes a challenge. An accurate account of what exactly our profession entails will usually provide a strong foundation for the requests made at the bargaining table.
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 offering creative solutions to problems becomes key; pointing out bad spending practices by the agency; and offering solutions to the problems that the agency presents. It is crucial that you have team members present to assist the negotiations who can answer specialized questions that will undoubtedly come up. These questions could include the number of people who have left the 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 futile, the parties are said to be at impasse.
After Impasse Declared
Either side may declare impasse after both sides have “exhausted” their ability to reach a deal. This does not mean that either side must give in or even move its position at the table. Although arguable bad form, one side may commence negotiations and at the outset maintain a certain position and hold firm to that position during the negotiation process. It is generally not considered bad faith bargaining to hold firm to a bargaining position and not move.
Mediation is always an option if both parties agree. Some local rules require it while other rules leave it up to either or both parties. The State, free of charge, will send a mediator to help resolve the impasse. Keep in mind, the mediator does not have any authority to tell either side what to do. He/she is simply there to help push both sides into an agreement if possible.
Fact Finding Now Available
Effective January 1, 2012, a tool that before was available to State, School District and University employees has been expanded to city and county employee unions as well. Pursuant to AB 646, the Meyers-Milias-Brown Act was amended to add a fact finding process after impasse is declared. The Public Employee Relations Board (PERB) has since adopted regulations implementing certain timelines in the process. Below are the final rules now in place.
1. Union has Option. Only the employee organization may request fact finding.
2. Time to Request. Must be requested within 30 days of impasse being declared or if mediation is used, within 45 days of a mediator being selected. Requests must be sent to the PERB.
3. Fact Finding Panel. The Panel consists of one person selected from each side and a chairperson appointed by PERB. The parties split any costs associated with paying the panel chairperson.
4. Panel’s Responsibilities. “The panel shall, within 10 days after its appointment, meet with the parties or their representatives, either jointly or separately, and may make inquiries and investigations, hold hearings, and take any other steps it deems appropriate.” Govt. Code 3505.4. The section further provides that “in arriving at their findings and recommendations, the factfinders shall consider, weigh, and be guided by all the following criteria:
(1) State and federal laws that are applicable to the employer.
(2) Local rules, regulations, or ordinances.
(3) Stipulations of the parties.
(4) The interests and welfare of the public and the financial ability of the public agency.
(5) Comparison of the wages, hours, and conditions of employment of the employees involved in the factfinding proceeding with the wages, hours, and conditions of employment of other employees performing similar services in comparable public agencies.
(6) The consumer price index for goods and services, commonly known as the cost of living.
(7) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays, and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
(8) Any other facts, not confined to those specified in paragraphs (1) to (7), inclusive, which are normally or traditionally taken into consideration in making the findings and recommendations.
5. Panel’s ADVISORY Findings. The Panel, within 30 days of being appointed (unless both sides agree to extend time) must present its “findings and recommendations” to resolve the dispute. This report is not made public for 10 days to allow the parties any last effort to reach a deal before the “advisory” recommendation is resolved by the local governing body (City Council or Board of Supervisors).
FIGHT OR FLIGHT
As most association leaders already know, associations should be selective in their battles. Association respect, by both the members and the agency, is gained or lost over years of action or inaction. Associations who rarely, if ever, challenge their agency over matters that the membership believe to be wrong, gain little respect at the bargaining table. 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.
Always remember the public that we serve. The public generally have their own concerns to manage and they are not generally inclined to be sympathetic to yours. It is important to articulate that public safety comes first and how problems within the law enforcement agency effect job performance and quality of service.
Also keep in mind that once the fight is over, you and your members will still be working there. Avoid activities where one or just a few members are involved who can be singled out for retaliation. Always keep in mind your department policies and the law. You should be in very close contact with your association’s attorney during these times to ensure you are not going to get yourself or any of your members in trouble.
Let the Debate Begin
Most associations do not have the revenue to engage in protracted, expensive political debates. Fortunately, that is not always necessary. When the Association has a compelling position, justified by facts and evidence, it is imperative that the message be imparted to the decision makers. The decision makers can be the elected officials or the public. Historically, the following are methods that have been used by associations (not exclusively public safety) to spread their message.
! Attend City Council Meetings – City council or governing board meetings are usually a great opportunity to publicly present and debate why the Association’s position is correct.
! Picketing – Similarly, well organized picketing events can get your message out to the community who may not attend City Council meetings.
! Public Appearances – As with picketing, public events, such as parades, Christmas tree lightings, the Mayor’s Gala and any other events of interest, are available public forums.
! Newspaper Ads/Mailers – Educating the public is paramount.
! Billboards – Although expensive, billboards receive more attention. A billboard entering the city limits explaining the truth about crime rates and other important information can be useful.
! Websites – With most people receiving their news from online sources, websites can be an inexpensive way to relay your Association’s position to the public.
! Job Fair – Depending on the circumstances, members dissatisfied with the way they are being treated by the agency may seek employment elsewhere. Holding a job fair may send a signal that members are seriously evaluating their employment options.
! Work Slowdown – A slowdown occurs generally when an employee performs some work but not all “normally required assigned and assigned adjunct duties.” Modesto City Schools (1983) PERB Dec. No. 291. If a slowdown concerns work that is voluntary or discretionary, it is “protected conduct.” Id.
! Blue Flu – Coined in 1970, the term usually refers to orchestrated absenteeism by police officers or firefighters who claim illness while in fact supporting union contract demands. The Encyclopedia of American Law Enforcement, Michael Newton. According to this reference, such “sick outs” have occurred throughout the country for the past four decades, with the most recent in 2004 amid unrest in labor disputes within the New York Police Department. Not recommended today as it will likely have the effect of turning the public against the police association.
! Referendum / Ballot Initiatives – Ultimately, the public should have the final say on how the government is run. Initiatives and referendum is a process established by the California Constitution to empower the voters.
! Campaigning – The association should not support candidates who make poor decisions and who demonstrate a lack of commitment to insuring public safety. Although a lack of commitment to public safety does not mean that the candidate must vote in an association’s favor all the time, the candidate should demonstrate a commitment to finding solutions to problems and bridging gaps.
! Focus on the Problem – Avoid spending your energy on every single problem and inequity. Prioritize and focus on the major problem, concern, or issue at hand. It is unlikely that you are going to be able to fix everything right away.
! Press Conferences – In circumstances where the decision maker’s action or inaction has directly resulted in some negative consequence, it is appropriate to point that out. Federal courts have highlighted that public employees are always in the best position to pinpoint exactly what the shortcomings of the public agency are. Thus, it is not uncommon that employees will bring this information to light so that the problems are not repeated