Phil Wilson: [00:00:10]
This week, we're joined by Phil McMann and Dave Sapenoff talking about getting that sausage actually made, how do you bargain the collective bargaining agreement? So, in this episode, we're really sitting at the table and talking about the tactics and the strategies that you use to try to get an agreement to the finish line. And that includes everything from how you get introduced to everybody and make sure you're building good relationships in an area where, look, it's emotional, the feelings can be pretty strong. So what are some things that you can do to try to dial that down a little bit?
[00:00:44]
We talk about practical ways that you pass proposals and counter-proposals. What are some of the things that you can do to influence and persuade folks at the table that the proposals that you're making are actually superior to the ones that they've proposed that they think they want? So, just a lot of different tricks of the trade, so to speak, for how to get a good bargaining agreement. So, Phil McMann and Dave Sapenoff talk to us about the ins and outs of bargaining at the table. Welcome back. We've got Phil McMann and Dave Sapenoff on again. Welcome back to The Left of Boom Show guys.
Dave Sapenoff: [00:01:23]
Thanks, Phil.
Phil McMann: [00:01:24]
Thank you.
Phil Wilson: [00:01:25]
So, we recorded an episode around bargaining preparation. And so, today's episode is going to be way more focused on what happens actually in the room where it happens, so to speak. So, we're joined today again by two guys that have spent, I don't know how many probably years if you add all the time together inside bargaining rooms- but a lot of time. So, Phil and Dave, we're going to talk, like I said last time, the sausage actually being made- so what happens in that room?
[00:02:03]
So, why don't we just start off with what are some of the things, first of all, that are your priorities when you go in and you've got your bargaining team assembled and the union's bargaining team is assembled- what are some of the things that are your priorities to make sure that bargaining goes solid? And I think last episode I started with Phil, so let's start with Dave on this one.
Dave Sapenoff: [00:02:28]
I think first and foremost, it goes hand in hand with the concept of approachability. Before you get into anything, introductions, who's who, who's what, what's their role in being at the table- make sure that everybody knows everybody and who and who that person is. So, after you get past introductions and all of that, to me, the second most important criteria is establishing who is in control of the table for the Union and establishing who's in control of the table for management.
[00:03:06]
And making sure that you again, understand the logistics, that when proposals are exchanged, questions are asked and answered, that it's between these individuals. And to a large extent, what goes with that is what I'll call table etiquette. There's this concept of it's the chief spokespeople exchanging things that if somebody speaks up, speaks up out of turn, in a sense, are we obligated or are we not obligated, will we respond or not respond to somebody who says something at their end of the table- so that everybody understands that you're not being rude by not responding, but you've agreed in advance as to how the conversations are going to take place.
[00:03:56]
Again, also talking about who goes first, who leads off, things of that nature. And one very other important thing as well, that I always do, and quite frankly, a lot of unions don't come to the table with this in mind. But when it comes to actual proposals and counter-proposals, I basically make sure that the union understands I only react to things that are in writing. So, I give the union a proposal, they're looking at it, and then a conversation. It's one thing to answer questions and clarify, but if it's an actual counter-proposal, this concept of them verbalizing a counter-proposal to me, I'll say thank you very much for that, but I'll ask you to put your counter-proposal in writing.
[00:04:45]
And just those sorts of etiquette, that sort of laying the groundwork so that everything is captured, everything is exchanged, everything in effect is recordable.
Phil Wilson: [00:04:56]
Good stuff. Phil, how about you? What would you add?
Phil McMann: [00:05:03]
I agree with David 100%. I refer to it as laying the groundwork for the negotiations, talking about again everything that David spoke about. I also take it a little bit further with regard to etiquette, because oftentimes across the table, emotions will come out because people are passionate, right? Especially on the union side, it can come out quite a bit because they're passionate about some of the issues or problems that they think need to be addressed. And I just make sure that we level set the expectation that, look, it's okay to be passionate, but to the appropriate level, right?
[00:05:35]
We're going to conduct ourselves professionally. I would expect, and ask that you all conduct yourselves professionally. This isn't personal so it's not geared, addressed to, or pointed at someone specifically. And if it gets to the point where we need to take a break, either side has the right to interject and say, 'You know what? It's best that we take a break right now.' And again, as David said, it's up to the two chief spokespersons for each side to manage that as best you can and as appropriately as you can in the midst of the heat of the moment when it's happening. I think that needs to be laid out.
[00:06:06]
I agree with David 100% that when responding to proposals, they need to be in writing. You can capture the essence, you can capture the notes, your understanding of it. But whichever side left off with the last proposal on whatever the section of that contract may be, the other side is responsible for coming back with a counter-proposal or a response to it. I'm not going to pass a proposal and then pass another proposal on top of it based on the discussion. It goes back and forth.
Phil Wilson: [00:06:33]
Don't negotiate against yourself, right?
Phil McMann: [00:06:35]
Exactly.
Dave Sapenoff: [00:06:36]
Yeah, absolutely.
Phil Wilson: [00:06:38]
Dave, I appreciate you bringing up approachability. And I think it raises a bigger picture. In this negotiation, there are a bunch of words on pages that are going across. But at the end of the day, it's really about can you build a productive relationship with the folks on the other side who are, like Phil said, passionate, have very strongly held opinions, might be angry, and to some extent, depending on who you're dealing with on the union side, they're being stoked. They're being told this company doesn't care about you.
[00:07:23]
There are all kinds of different personalities that get involved in negotiations. And when you're on the employer side, a big part of it is to try to get those relationships going in a productive direction. So, maybe talk a little bit about what are some things that you do to try to accomplish that. Dave, you started off talking about making sure everyone's introduced to each other. Phil, I'll start with you. Any things that you do to try to get that relationship started in a productive way as possible, understanding that this is in many ways a very negative relationship to start with.
Phil McMann: [00:08:06]
Yeah. I personally go out of my way to try and meet with whoever the counterpart is going to be if I'm going to be the chief spokesperson or one of the folks at the table that's going to be responsible and leading the negotiations, to meet with my folks well before we get at the hotel or wherever the negotiations are going to be held, to get to know them a little bit. Maybe just go grab a cup of coffee and share background experience so I have a better understanding of where they're coming from and what a frame of reference, or frame of thought might be.
[00:08:34]
Again, it's relationship-based, right? It's being approachable for them to know that they can reach out to you and vice versa. And I also think it builds the ability to then have sidebars down the road to say, 'You know what? We're going to take a caucus and everything,' but you reach out separate from across the table, you say, 'Hey, how about you and I just go meet in the lobby for a minute and get realigned in terms of where we're going today?' You start the day with the plan. You want to make sure that you try and stay on plan and on task as best you can.
[00:09:04]
Things are going to come up. That's okay. My approach is you don't want to throw a surprise across the table that's going to basically blow it up and drive you into a space that's not in your best interest. It might feel good at times to do it but in my experience, even though it might feel good, it doesn't end up working out too well for you.
Phil Wilson: [00:09:26]
It's usually exactly the opposite, right?
Phil McMann: [00:09:28]
Exactly.
Phil Wilson: [00:09:35]
Well, you both do have experience on both sides of the table here. But how important is it for the folks on the other side to understand, look, I know what your job is here. And you've talked about this before- but I understand that you've got a job to do here and I'm not taking it personally that you're doing your best job to represent this group of folks. Talk a little bit about why that is important and what are some things that you do to make sure that they know you understand their role.
Dave Sapenoff: [00:10:11]
Really starting off in any negotiation, I'll always tell management it's counterproductive to head into negotiations without the concept that the union has a legitimate purpose in being there. Now, whether you agree with how they won the election or anything else, they have a legitimate, lawful purpose in being there. So, you enter into the negotiations as if they've got a right and the law is behind them in terms of being there and bargaining on behalf of the employees. So I said, once you get past that, then try and understand the role of the union rep.
[00:10:56]
It gives me the option of saying, look, I've been in your shoes, I've sat on your side of the table, I've done your work, I've organized before. I've done all those things. I'm an ex-Teamsters rep. But basically, to let people know that and understand that I understand what their role is vis a vis in front of their employees such that, all right, the spokesperson showboats a little bit- I'm not going to sit there and call them on it. I know potentially why that's being done. So, you understand the politics.
[00:11:26]
And there will be politics between the committee and the union reps. They have a lot of things in common. They also have some goals and objectives that are not necessarily in common. One other thing that I always make sure to do is to research who's at the table on their side. Get into the Union's lm2 forms. Are you dealing with the president of the local, the recording secretary, or the treasurer? Are you dealing with the top dog in the union local? Are you dealing with a field representative? Are you dealing with the Union's A team, B team, or C team? Are you dealing with an international rep, depending on which union it is?
[00:12:09]
Because that's going to tell you a lot about the skill they come in with at the bargaining table. It's going to tell you politically how responsive they're going to be to the committee of employees. And to a large extent, that helps to drive your knowledge of where they're going to go and what issues are really, really critical to the union and to the employees and which ones they may say to the employees were not going there. So, that to me is a very important aspect is really understanding and researching who's on the other side of the table with you.
Phil Wilson: [00:12:47]
Phill, any other building relationships with the other side tips?
Phil McMann: [00:12:53]
Yeah. Again, in my experience, it's not always necessarily the person you're going to be negotiating with is the person that you are dealing with or interacting with during the organizing drive. Typically, it's not the organizer, so it's a different individual. So, making sure everybody understands that. And look, they have a job to do. And they're there to do their job just as much as we are on the management side. So, understanding that. And I can't stress enough what David said about the politics of what's happening at the table. Because there's politics, there's attitudes, there's relationships.
[00:13:30]
Some of the committees can be very dysfunctional. They could be bifurcated. One side might be very passionate and steadfast in terms of one proposal as compared to another because it affects them. On the other side, yeah, not so much where I am, but again, depending on the complexity of what you're dealing with. That's where I also think having someone on the company side on the committee that knows the bargaining committee, the folks who are coming, the representatives chosen from the membership that are going to be there, that has that relationship, that knows them, that can read body language, I think can also be very helpful because you can see what's being said without being verbalized.
[00:14:07]
So, I think it's just having the ability to build your team to be mindful of that. So, if you're not the person speaking, you're not sitting there with your head down. You're looking across the table intently paying attention to the process, tracking, following along, not fidgeting with the phone or anything like that. One of the things I always do is tell people, let's just silence our phones and flip them over. Let's not be distracted.
Dave Sapenoff: [00:14:33]
Table etiquette.
Phil Wilson: [00:14:33]
Yeah. This is hugely important. The folks that are not there speaking, if you have a functional committee- and I'm talking about on the management side. It's true on the union side too. But if you have a functional committee, that group may not say a word during the bargaining itself, or the only words they're going to say is when you as chief spokesperson, turn to them and are like, 'Hey, you know, does that sound right? Is that your experience?' But give them that job right of reading the room. Try to help me understand while I'm interacting with my counterpart on the other side, are there a lot of head nodding when they're talking about this? Are some people nodding their heads, but some people are harrumphing?
[00:15:20]
Being able to go back into a caucus or after we finish the negotiation and understanding, okay, like, look, there's a split in the committee around this proposal, and these two people think it's a good idea, but these three people think it's a bad idea. Knowing that tells me how should we counter what they've proposed, and it gives you a lot of information that otherwise you wouldn't have if you didn't have people watching for that stuff. And you as the chief spokesperson, you'll notice some of that. But you can't concentrate on the point you're trying to get across and also read the room as much.
[00:15:58]
So, I think that's like really, really valuable advice. And then Dave, to your point, understanding the spokesperson, there are constituents both at the table, but there are people that are not there that that has a big influence on whether or not this deal gets ratified or you have a big influence on how people are going to react to this agreement when it finally comes out. Helping to really make sure that you're understanding the reason that this person is reacting this way right now might not be because they actually believe that this proposal is a terrible idea.
[00:16:39]
It's like they have to prove to their committee that they are going to be tough. They need to prove to their committee that they're not going to get rolled over by management, knowing at the end that they're going to probably have to cave on this proposal. I call it the kabuki theater. There are things that happen in the room and at the table that are not necessarily what's actually going on as far as the negotiation is concerned. But if you actually plan to get a deal, you need to support this person doing whatever it is that they think they need to do to be able to get the politics set so that they can get the deal across the table.
[00:17:22]
Maybe tell me a little bit about a couple of examples. Each of you, if you can think of an example where there was one thing happening in the room, but the actual deal was happening elsewhere. Do you have any experience to share on that?
Dave Sapenoff: [00:17:37]
I was about a year and a half ago on a renewal agreement with the Teamsters local up in Michigan. Sitting at the table, the teamster rep comes in, a nice guy, and everything else. Knew his business. I was looking at the committee and asked management- I said, the three committee people who are they, and give me some information about it. Well, it turns out that they were the three most senior individuals in the organization. And as we talked, their conversation was, 'all about them.'.
[00:18:11]
The bottom line is the deal that eventually got cut was distinctly to a very slim piece of the organization of the most senior employees in the group because in effect they got what they needed and went back to the rest of the group and basically said, this is the way it is. And that's how the deal got cut. So, it was just understanding that the committee was not a cross-section of the entire organization. It was three individuals there very much with self-interest in terms of how the negotiation was going to get cut. One of the things I do want to mention about the Union's committee as well, that sometimes management has a little bit of difficulty with is you don't have a say in who they bring to the table.
[00:18:59]
And more often than not I've gone into negotiations and management will look at me and say why is that person across the table? It could be an ex-employee, it could have been somebody who was terminated during the campaign, or something of that nature and so they can't be here. And I said, well, unfortunately, as the law goes, you can't dictate who the union has at the table. That's their right. We have the right to dictate who will have on our side. But we can't change who they bring. So that's one thing I just wanted to make sure everybody understood. You can't dictate that.
[00:19:35]
Again, when I was a Teamster, I was in negotiations and we got into a huge, huge debate in negotiations, this is back in the 70s, of an employee wanting Martin Luther King's birthday off, to the point where he became disruptive. We had to take him out of the room, talk to him, went back, he'd become disruptive again. He wanted Martin Luther King's birthday off. Anyway, to make a long story short, somebody else came up to us during a caucus and basically said he wanted it because it was his birthday. And again, you look at that and you say, okay, now you understand sometimes the self-interest and the politics of what goes on at the bargaining table.
Phil Wilson: [00:20:21]
Yeah. Phil, are there any examples you can think of?
Phil McMann: [00:20:24]
Yeah. I've had a couple of times where a facility would be supplementing their workforce with contractors, and now all of a sudden the union comes in and you're in that first contract, and the union's taking the position that going forward, there'll be no more contractors working within the facility, that the folks who are going to be covered by the collective agreement are going to be the employees. And if you need to bring people in, then bring them in as a full-time equivalent. And we've had that dance going back and forth in the union.
[00:20:51]
Again, the union is there in the interest of representing their members and the employees. But in my experience, usually, you can get there. It's going to take some time to discuss it and continue to discuss it and help them understand that there can be benefits to having that contracting workforce, because it's not in anyone's best interest to be hiring and laying people off, depending on the work volume. So, they may come in initially saying absolutely no contractors. And then over time, over multiple discussions and possibly different proposals and the company remaining firm that, look, we need this. This is very important to us. It allows us to grow the business and flex as we need to. We then can try and hire from within that workforce because they're now trained and aware of our policies, procedures, and coming on and things like that.
[00:21:40]
So, that's probably the best example I can give you where there's that give and take. And ultimately, you'll get to where you need to get to. But again, it's just some of that showmanship. The kabuki theater, as you mentioned, going back and forth.
Phil Wilson: [00:21:53]
Yeah. It depends on the relationship that you've got with the union leadership on the other side. My dad tells stories. His best friend came up on the other side of the unions that represented companies in the companies that he came up with. And they built that friendship around figuring out how to get deals done in nasty situations, avoiding strikes. But over time, his company, if there was a really serious bad deal that was about to lead to a strike and shut down a plant and really negatively impact not just the business but a bunch of other employees, they would fly these two guys in because they knew there might be a giant battle at the table, and it could be just as nasty as it was going to be. But at the end of the day, those there a strike would be avoided.
[00:22:50]
They would come and they would figure out a way to get a deal done. And it didn't necessarily always look pretty while it was happening. But there was trust between those two people. And they knew if this guy says he's going to do something, I know he's going to do it. And if you can build a relationship like that with someone- you're not going to do that probably during your first negotiation with somebody. But over a period of time, you can build that sort of relationship. And even in the first contract, you still need to be laying the groundwork for that, right? You need to be somebody that can be trusted.
[00:23:30]
And you tell them, look, I'm going to say things that you are not going to like, and I'm going to say things and probably not agree to things that you don't understand why I won't just agree to them. But what you do need to understand is if I tell you something, you can trust that that's true. If I tell you that my authority is here and I can't go beyond that, I'm not going to lie to you about that. And so, there are certain components of a negotiation where you're trying to build that, particularly with the spokesperson. You may not have that relationship with the committee. But being also able then, as Dave said earlier, to understand like they have a job to do as well and don't take that personally.
[00:24:13]
They're going to yell at you and they're going to call you bad names. You may have etiquette rules around how far you can go there, but at the end of the day, being able to sit through that, and understanding that's also probably part of the theater role here is important. So, let's switch gears here, going to proposals across the table. We've already talked about setting the ground rules. What are some of your key practices around the mechanics of the day-to-day what's going on at the bargaining table? Phil, why don't you start, and then we'll go to Dave?
Phil McMann: [00:24:55]
Sure. First and foremost, for me, I like to always start with non-economic proposals. I personally am not a fan of putting everything on the table at once, because as soon as you put money on the table, that's going to be the driving factor. So, my approach has always been let's try and get through some of this non-economic language, the things that we know are going to be incorporated into the collective agreement. Let's get and seek alignment and agreement on those issues and items as soon as we can because then we can move that off to the side. They've been TA, their sitting off to the side, ready to be incorporated into the final offer.
Phil Wilson: [00:25:29]
Non-economics still has a cost, right? So it's like, I don't really know what my budget is.
Dave Sapenoff: [00:25:34]
Everything has a cost. Everything has a cost.
Phil McMann: [00:25:39]
But depending again on how you're going to frame your contract. So, getting management rights clauses out there, harassment and discrimination language if you're going to put that in the contract or if you're just going to leave it as a policy and procedure. Because there's a lot of different ways you can structure things. The preamble- looking at the term of the contract. Are you looking to try and do, say, a three-year deal or possibly looking for something longer? Again, throw those feelers out there and approach those types of language issues as soon as you can.
[00:26:12]
And then the more you can get through those proposals, you can start to shift to the ones that, you know, are going to take a lot more time and effort to be negotiated. Oftentimes the union may come across and give you their entire non-economic pass or they may give you everything all at once. Again, as David said, you can't dictate how they're going to play it. But hopefully, you've had that discussion with your counterpart to understand and say, look, this is where I'm thinking, this is what I'm thinking, and my approach is going to be what are your thoughts on it?
[00:26:46]
And if you have a relationship, that tends to go very well. If it's new and you're learning your way, you say, look, this is this is my preference, this is what I'm planning to do. So again, no surprises. And then you just start working your way through it. The other thing that I always make sure that I fully understand is I read through their entire proposal and if there's anything or I ask them to read through it, I should say. And then if I have any questions, I'll ask questions and I'll say, okay, I understand your proposal. I will get back to you with the response once we have time to evaluate it fully.
[00:27:19]
And I leave it at that. And then I move on to the next proposal. And then keeping track of everything that's passed. I also make it a format for myself to notarize every proposal in terms of the date, the time, and whose pass it was in terms of the proposal, so that way I have a tracking mechanism of everything that's passed by every specific section. I break it out separately for myself. So, being very organized is important.
Phil Wilson: [00:27:47]
Yeah. Great. How about you, Dave?
Dave Sapenoff: [00:27:49]
Going into contract negotiations and developing proposals, one thing I try and get with management on is this concept of I don't care what color the cat is as long as it catches mice. Because sometimes management or the union feels the language has to look like this. And if you can get to X via some other way of saying it, as long as you end up where you need to be, that's good. And that prevents entrenchment in terms of what you're looking at. What I've seen recently in most negotiations is the union literally walks in with a complete agreement, slaps it down on the table, and says, here it is.
[00:28:33]
The last several negotiations I've been in, that's exactly what the union did, including all the economics. And management, looks at this and says, oh my gosh, what are we going to do with it? And I said, well, we're going to eat this elephant in small bites. And you start picking out those proposals, understanding as well that really in the union's mindset, that sets the stage that you're working from their language. And again, I tell management not to feel obligated in any manner, shape, or form to counter-propose exactly to what is in their proposal or how they've arranged it.
[00:29:09]
I said, these are negotiations, and we're going to you'll pick and choose and we'll decide what we're going to respond to, when, and where. It's a starting point. I totally agree with Phil. You always do the language stuff first with the concept that even language, a grievance procedure, for instance, has a cost. How are you going to pay representative stewards? Are you going to pay them or not pay them for the time they're spending hearing a grievance? If some employee off the shop floor comes into your office as a supervisor with a grievance, is it on that person's time? Is it company-paid time?
[00:29:48]
So, you could see where all of that starts adding up? And depending on if you have something with a lot of language that generates a lot of grievances, you can see very easily that something as simple as a grievance procedure could become very costly. So, I make sure that management understands all of the nuances around that. And again, you write some language to be explicitly clear and some language when it's to your advantage, you'll leave vague. But this is where you start dissecting all of that in terms of developing your counters or new proposals for that matter.
Phil Wilson: [00:30:23]
Good. Great stuff. What other tactical things do you like to have in place? Dave, you mentioned earlier, you only respond to something that's in writing. Any other tactical things that you found over the years that help get things clear?
Dave Sapenoff: [00:30:49]
Oh, yeah. I'll say one thing. Everybody comes into this thinking that the union is the only one that can request information. Actually, the request for information is a two-way street. So, the union typically walks in, if they put a contract on the table, understanding what you're typically going to see is what I call the union's gold-plated agreement. They've put together an agreement with their best language, from their best agreements, from wherever they represent other employees. You do your research, you find out where else they represent employees.
[00:31:21]
I do not hesitate to put an information request out to the union saying I understand you represent employees also at this location, this location, this location. I want their contracts. And one of the great tactics here at the table that I've employed relatively successfully is the union in many instances responds to that, and you get to see language that is way different from what they gave you as a proposal at the table, which gives you something else to work from. Or in another couple of instances, the union has walked in and said what we've done elsewhere, anywhere else is not relevant to this discussion.
[00:32:01]
And I'll say, that's fine. And then the next time the union says, we have this language in every other agreement- I'll simply look at them and say, I don't care that you have it in other agreements. You told me it's not relevant that it's in other agreements, and therefore I'm going to do what's relevant here and not what you've done elsewhere. And they've typically given me that response in writing. So again, a little give and take in things. And then using the law and tactics to your advantage to gather information to make a more informed decision.
Phil Wilson: [00:32:33]
Yeah. Or they say, well, we've never agreed to something like that, right? Because that can become a reason to see your agreements. You say you never agreed to it- prove it to me. We know you represent people here. We don't believe you. So yeah, I like that. That's a good one, Phil.
Dave Sapenoff: [00:32:54]
I was in negotiations once with the CWA, and we put a proposal on which I had seen in one of their agreements, for instance about laying off people. They wanted strict seniority. We basically said being able to retain 20% of the workforce out of seniority in a layoff situation based on their skill level. So, we put that proposal on the table. And they said we've never agreed to that anywhere. I gave them an information request, and I said to the union representative and said, just so you understand, in this envelope here, I've got three of your agreements that say that. So I want to see your agreements where you have that language.
[00:33:32]
And next week I got a box with 16 agreements in it. So, it's just one of those things that you do at the table. And it's not to be snarky, but it's this idea that if you take it on face value, what you're being told, you're going to find yourself on the short end.
Phil Wilson: [00:33:47]
Yeah. And it also goes back to I need to be able to trust you. You're teaching them a little bit, don't lie to me.
Dave Sapenoff: [00:33:59]
You've done your homework.
Phil Wilson: [00:34:01]
Right. Phil, how about you?
Phil McMann: [00:34:02]
I couldn't agree with David more. He's spot on in terms of having done your due diligence, preparing for this, and looking at other languages for other collective agreements at the same local has is going to be very helpful. Because you're right, they're going to cherry-pick the best of every section that they have. Very rarely have I ever seen the union sit down in a first contract (and I've done six first contracts myself) where they're going to come down and give you a contract that they sat down and wrote from scratch. No, they're going to be pulling the best from all the different collective agreements they have, maybe even from other contracts from other unions, because they realize there's some language out there that could be more favorable than what they're what they've done in the past.
[00:34:46]
So, having that ability to have that at your fingertips so that you can then respond appropriately, challenge them appropriately, and possibly, as David said, put in an information request to force them to provide you with the language. Right time, right place, I think is also pertinent in terms of whether you are going to die on the hill or really dig in on something that in the end, is it really going to be that big of a deal. You're going to have to work that out with your committee and the leadership of the organization. You're just going to have to work your way through that.
Phil Wilson: [00:35:21]
Yeah. This also relates back to our conversation about strategy, too, right? You ideally want it to look a certain way, especially if you feel like you're in a situation where you're potentially going to get to an impasse or potentially be in a strike-type situation. You're going to want the negotiation. You can't just look like you're only saying no to everything, right? And like you just said, Phil, there are some things that ultimately we're going to agree to this. This is not language that is controversial. So, your ideal scenario is you're sprinkling those in so we're getting TAs.
[00:36:02]
Ideally, we're getting something TA'd, if not every session, at least you know every other session. In some sessions, you'll get to a point where it's like, okay, we can TA 3 or 4 things today. You want to also be thinking about it that way, right? What do I need this to look like so that if I'm ever charged with bad faith bargaining, I have a perfect case of examples of where I've compromised and where I have signed off on their language as they initially proposed it and all of those. I've agreed to dates and I've offered dates that they said weren't available.
[00:36:41]
All those sorts of things are the details in the session things that you have to be thinking about to make sure that you're building a case that, look, we've done this in good faith. We've done our very best to try to reach an agreement. It's not our fault. We may have some things that we just can't agree on, but that's not because we haven't tried.
Phil McMann: [00:37:05]
I was going to say, the other thing to keep in mind, too, depending on where they're pulling some of this language from- some of these collective agreements that the union negotiator has probably dealt with may have been around for 20, 30, 40 plus years. That language has evolved over many, many years, so don't just take it at face value, to David's point, that this is the language that in the way that they have to have it. Because no, they could be passing language that doesn't necessarily fit within your workplace, but they're saying, 'Well, we put this in every collective agreement.' Well, it doesn't fit at all with what we're doing. So, that's where it's critical that you also have the ability to push back on things like that.
Phil Wilson: [00:37:45]
And going back-to-back to Dave's example, it's like, show me a first contract that has that clause in it, or the last 2 or 3 first contracts you've negotiated.
Dave Sapenoff: [00:37:56]
I am currently in negotiations for a first agreement with a Teamsters local. And the leadership are what they call TDU, Teamsters for Democratic Union. Newly elected, straight out of the UPS bargaining unit. They gave management a first proposal. Now, this is a company that has 30 drivers. And the contract, I would say 80% of what they put on the table as their initial proposed contract proposal was taken straight out of the UPS agreement, which looks like a small telephone book. And that's their world. That's what they understood.
[00:38:37]
And quite frankly, that is the education that what is applicable in the UPS environment is certainly not applicable in a company that's doing a couple of million dollars a year in business versus multi-billions of dollars a year in business.
Phil Wilson: [00:38:54]
Yeah. Let's talk a little bit about that because there's a psychology to this, right? It is a negotiation and there's a leverage component to it. But there's also this education component. And so, unions, unfortunately, if they don't do a good job of educating, especially a group of people that have never been unionized before about how this actually works, they create a lot of problems for themselves. So, if you went to this unit of people and said, 'We're going to get you the UPS deal,' that's really malpractice, right? They're not getting that deal. They probably don't even want that deal.
[00:39:40]
It would be onerous to try to administer the UPS contract for a one-unit group of 30 guys. So, there's an education piece to this that I don't think people appreciate. So, maybe talk a little bit about sometimes when you're bargaining, you're actually saying things to the chief spokesperson, but your audience is really everybody else to try to illustrate, look, what they're doing here is really not in your best interest. Can you think of any examples of that?
Dave Sapenoff: [00:40:16]
That's all I've been doing, at least, recently with this particular unit. For argument's sake, we were talking about language in discipline and discharge and the types of things that could result in immediate termination, not going through some progressive discipline. So, one of the examples that came up was the use of the word insubordination And in effect, the group not quite understanding what insubordination is. It's a fairly well-understood concept in labor relations. It's a fairly well-understood concept with arbitrators. So, when I walk them through that, I'm saying, look, I've been through over my 40 years in multiple arbitrations and everything. And here's what an arbitrator is going to look at as insubordination.
[00:41:03]
And even this concept here of work now, grieve later, educating to that, that no you don't have the right to simply refuse to do a job because you think it's unsafe. There are rules and definitions around that. And understanding that, and then explaining that so that people don't have this concept that, well, we can do what we need to do simply because 'we think.' No, that's not how it works. So, it's this constant education process on how it works, how arbitration works, how arbitrators look and view the written contract.
Phil McMann: [00:41:49]
Yeah. For me, one of the things that I tend to help trying to level set oftentimes is even just the level and number of representatives the union's going to want within the facility. Again, a lot of contracts, it's based on headcount. Does that necessarily fit the operation or number of shifts, things like that? So, helping to really level set the expectation that one representative for 60 people on the first shift and another representative for 20 people on the second shift isn't necessarily in the best interest, and trying to come up with- because in other contracts, you may have one representative for 300 people. So, working through some of those scenarios.
[00:42:33]
I think another area where it comes into play quite a bit is in terms of attendance systems. A lot of time and attention is put on attendance. And depending on what the union's proposal may be, as they're looking for things in terms of a time frame, when discipline may roll off someone's schedule, or being subject to the next higher level of progressive discipline. So again, what they may be proposing from somewhere else just doesn't even exist in the world that they're working in today. So, you have to help them steer it.
[00:43:04]
And I've seen it both ways. I've seen it where the chief spokesperson from the district level is trying to help the local bargaining team figure it out. I've also seen it where the local team is trying to help the chief negotiator for the union to figure it out, because again, they're coming from a different mindset. This is their first time interacting with your organization and your employees. And they may not necessarily have a background dealing with that type of industry. Because at a district level, they're dealing with people across a ton of different industries, different occupations, things like that. So, it can go back and forth.
Phil Wilson: [00:43:40]
Yeah, I think that's a great point, especially now. There's a lot of these smaller companies that are getting organized, and the people that you're dealing with at the union might be used to just dealing with like really big, massive, bargaining units. And so, there's some education that has to be done there as well. And part of it really is helping them understand, look, the stuff that works there actually would be a total pain here. You're going to make your job so much harder if you try to. What you're trying to do doesn't fit. And because of that, it's going to make your job more difficult.
Dave Sapenoff: [00:44:21]
That's one of the more important points. When you propose something at the table is not convincing the other side why you want it. It's why either in their best interest to accept it or it's not in their best interest to accept what they've proposed. You're on management. You know why you proposed it. You know why you want it. Convince them why it's in their best or not best interest to accept or reject something.
Phil Wilson: [00:44:51]
Really good point. Really good point. That ultimately is what you're doing, right?
Phil McMann: [00:44:57]
Yes.
Phil Wilson: [00:44:57]
And then being able to explain this is why this is actually superior to what you proposed. Those are great points. We're getting to the end here, but maybe tell me a quick story about a negotiation that you are the proudest of pulling off. What do you feel like you were able to do at the table that was able to get that result?
Phil McMann: [00:45:27]
That's a great question.
Dave Sapenoff: [00:45:36]
In my prior employer where we had 35 agreements, 12,000 bargaining unit employees in 18 states, we had a scenario where the union entered into a negotiation strategy of allowing agreements. We were going past expiration on everything. And considering the fact that we were doing between 12 and 15 agreements every year, there was a particular piece of this cycle where when nine of the agreements had expired, eight out of the 12,000 bargaining unit employees were ready and prepared to go out on strike, which would have been crippling at that point.
[00:46:20]
And as part of that, again, I spent many a sleepless night working my way through that one, but it was this strategy from a legal perspective, taking comments from all the various tables, building a case at the NLRB for illegal coordinated bargaining on the union's part, filing strategic unfair labor practices so that in effect, then, as far as communications was concerned, then getting out in front of the employees, letting them know that the real purpose behind what the union was attempting to do was to go from individual agreements to a master agreement on a number of different levels and then letting the employees know that potentially any strike they engaged in was unprotected.
[00:47:06]
And then once we got all of that out of the way, going after what we thought were the more susceptible locals, cooking to deal with them such that they started falling out. And the House of Cards fell after that. And going back to an earlier point, making sure that we never had those contracts expiring in that time frame ever again. So, some contracts were 18 months, some were 24 months, some were 28 months, some were 48 months or 36 months to break up that cycle. And one of the more successful things in terms of really every element, the finance group, operations, legal department, HR, everybody in lockstep with each other in terms of making sure you got to where you needed to be. To me, I look back on that and that was probably my most challenging set of negotiations, but ultimately one of the more successful.
Phil Wilson: [00:48:08]
How about you, Phil?
Phil McMann: [00:48:09]
For me, I think the most challenging and successful was a contract renewal for a business. And unfortunately, the business had lost one of their contracts with one of our customers. So, we're in the midst of doing a contract renewal, and we had enough work to basically get it through to the end of that contract term. But we knew that towards the latter part of the contract term, we were going to have to look at some significant cutbacks and layoffs because of the lack of work. And it got extremely emotional across the table to the point where they were more focused on what was going to happen two and a half years from now, rather than the challenge that we had in front of us.
[00:48:52]
And I was able to work through it and really help get a state of the business presentation coming in, being completely transparent as to why this is what the future was going to hold for the facility and that the future today is doing a great job but we need everybody to stay committed and working through it, understanding that two years from now, it's going to be a very different situation. But a lot can happen within those two years. And it was just the opportunity to work with the committee members to address and hear all their concerns. The membership concerns, the fear that this was part of the strategy of the company all along to try and close the facility. And that was never the strategy.
[00:49:32]
And literally, the notification of the loss of the contract was one month before we sat at the table. So, it came as a big surprise. Kind of made us shift our strategy a little bit going into the negotiations. But we dealt with a lot more emotions at the table and everything. And at the end of it, we got a full recommendation from the committee. And everybody on the committee thanked me because I followed up on everything that I said I was going to do, and I kept in touch with them long after, to the point where when the work was gone and we had to deal with, again addressing the headcount issue, I purposely went out there and was on site to do it, to know that I was a man of my word, so, that meant a lot to me.
Dave Sapenoff: [00:50:16]
That's important.
Phil Wilson: [00:50:17]
That's a good one. And that makes a big difference if you ever deal with the union in future negotiations and you know that team. So, that's really good. Well, guys, thanks. I really appreciate you. You have so much experience and expertise in this area. It's complicated. There's a lot of nuance to it. And it's great to arm folks with some just some practical- if you've never been through it before or even if you have, you definitely haven't been through it as much as you guys have. It's like what are some of the things be on the lookout for? So, I really appreciate it. So Phil, let's get- so everyone can see your names again. Phil, I really appreciate you joining us, Dave, as well. And we'll see you soon.
[END OF TRANSCRIPT].