by Maureen Anichini Lemon
When the pandemic hit, some school board negotiating teams put their negotiations on hold, thinking that the March ‘shut down’ would be a temporary setback. The current escalation of COVID-19 cases, however, should have all school boards with a soon-to-expire collective bargaining agreement (CBA) contemplating the pros and cons of virtual collective bargaining.
In general, employers are expected to meet with union representatives in-person at mutually agreed upon times and locations to resolve bargaining issues. The National Labor Relations Board (NLRB) has historically concluded that conducting face-to-face negotiations is a statutory right, and that a party that refuses to negotiate in-person creates an impasse on a permissive topic of bargaining. Yet, in a September memo, NRLB’s General Counsel stated that, while the pandemic does not privilege an employer to refuse to hold bargaining sessions, it may justify convening such sessions by teleconference. The Illinois Educational Labor Relations Board (IELRB) has not opined on this issue.
Hopefully, school board and union teams can jointly agree to postpone negotiations or to convene such sessions via a virtual platform when it isn’t safe to meet in person. With that latter decision, though, comes several unique challenges.
Preparation and Organization
Virtual negotiations might be hampered by a team member’s technological struggles. Just as it is important to ensure that each student has consistent WI-FI and internet access to participate in remote learning, the same is true in remote collective bargaining. However, it is not the school district’s responsibility to provide technology to a union team member just for negotiating. Your ground rules may require each negotiation team member to agree that they are personally responsible for accessing the necessary technology. Also, to avoid unnecessary technical difficulties, run a sample session so team members can familiarize themselves with the chosen platform.
Speaking of technology, now is the time to switch from a physical binder with tabs to an electronic folder containing the current CBA, ground rules, master list of outstanding items, proposals, counter-proposals, tentative agreements, and bargaining notes. A basic topic that should be addressed by your ground rules is how the parties will exchange proposals and counter proposals. It will be critical to properly label email groups so that information doesn’t accidently get sent to the wrong individuals.
For tentative agreements (TAs), one option is to electronically send a pdf of the ‘final’ TA to both parties, and have the individual from each team who would sign the TA send a ‘reply all’ email acknowledging their team’s agreement. Then, update your side’s master list of outstanding items after getting those emails and that TA saved in the electronic folder.
Certain aspects of traditional bargaining get lost in translation by going virtual. Reading body language and facial expressions can provide a wealth of information but isn’t easy to do during virtual settings, especially if individuals are allowed to keep their cameras off. A ground rule might be that each participant keeps their camera on unless they’ve been granted a specific exemption during a particular negotiation session. Even if all participants are visible on camera, you have to use caution when observing any notable gestures or expressions. The individual might be reacting to something that their pet just did, not what was communicated at the virtual bargaining table.
While each side has the right to select its own representatives, fewer participants will make a virtual setting more manageable, since only so many screens can be viewed at the same time. It might benefit the process for each side to limit the number of individuals on its team. District participants should also keep a ‘cheat sheet’ handy listing each member of the union team by name, title, building, seniority, and years until retirement.
While bargaining teams often ‘break bread’ or have other opportunities to get to know their counterparts during traditional bargaining, those opportunities are all but lost in a virtual setting. Such personal connections can be instrumental to fostering the trust and relationships necessary to reach an agreement. Teams may wish to creatively consider icebreakers and other ways for team members to get to know one another.
Taking the discussion online lends itself to having spokespersons for each side who would do the majority of the talking. Unfortunately, those non-speaking individuals tend to ‘check out’ during lengthy sessions. More frequent but shorter sessions might be beneficial. At the very least, the parties should agree to take short 5-10-minute breaks each 1-1 ½ hours to allow participants to stretch and refresh themselves.
Caucuses are extremely important to move negotiations along and to connect with the team members who are not as active at the bargaining table. The parties will need to set up separate sessions or breakout rooms within these virtual platforms. Always use two breakout rooms, rather than allowing one caucus to remain in the main room, since people may return from their breakouts and hear the other side’s discussion. Sidebars should work the same way.
While virtual collective bargaining is a poor substitute for meeting face-to-face, it may become necessary as union negotiations can be ‘put off’ for only so long. At the same time, school district budgets have been decimated and fewer financial resources are available. Ottosen DiNolfo attorneys are available to assist your school district navigate its collective bargaining obligations, whether in a virtual or traditional setting.