Caveat Lectores Memo to Union Leadership #1

6-17-2014

It is time to get ugly. We should have gotten ugly early but it is not too late.

Make some noise.

The right wing nut jobs and tea baggers are working hard at taking away the careers and futures of your members. Doing so will endanger the future for the citizens you serve as well. There are a lot of people in each city, township, county, state and in the entire nation who are counting on you.

Stop just defending yourselves and attack them where they live. Are you up to the task?

The Lectores mantra is usually framed in political civility as it should be; however, there is an element of the body politic dedicated to destroying unions and the workers who do the work of this country. The way they have been operating is to use false and at the very least misleading “facts” to anchor the message that public sector workers are lazy, greedy, over paid and under worked. They are scapegoating public sector workers in an even more vengeful way than they attacked private sector workers 20 plus years ago. They subdued the voices of the private sector and have now set their sights on the unions who protect the rights of public employees.

This faction is nothing new, but they are now fully in charge (with the help of the very people they seek to destroy). It is now time to counter attack and disgrace, disarm and marginalize your enemies before they further their political fortunes by stomping you into the dirt.

In Lectores Lobbying School and The Survivor’s Guide to a Successful Public Sector Union, the Lector identifies different species of politicians as:

• Real supporters: These will almost seem like true friends, if they actually exist in political circles. They are tireless supporters of your causes.
• Political allies: These legislators will be on your side unless there is an overriding need to be somewhere else. They will support you but need to get reelected.
• Fence Sitters: Most of your so-called friends reside here. They will be uncommitted on the issues, potentially able to vote either way but not openly against you.
• Uncommitted Opponents: You can count on these legislators voting against your issues, but they are not committed to seeing you destroyed in the process.
• Hard Core Opponents: These legislators will lead your opposition. The only way you will ever make them anything other than what they are is to put them out of office. Discredit their position as extreme to the extent that others may think twice before aligning with them.

It is only recently that public employees and their leaders have had to face the irrational rhetoric of so many uncommitted and hard core opponents. It is now fashionable for right wing politicians and the sycophant media to make open attempts at demonizing, scapegoating and harming public employees. These are the same politicians who took your money and support in the past and have mesmerized your members into supporting their right wing causes. They are aided by a right wing media that purports to report the news but is only spinning the news into right wing conservative propaganda.

You must now attack them as publicly as possible. Make them suffer.
• Call a liar a liar and nothing less. Accept the truth but expose the lies as loudly as possible.
• Call out these people who seek to further destroy the middle class workers’ future in uncompromising terms.
• Call out fellow public employees who support those who seek to destroy them. They are ignorant and need to know the truth in the harshest terms you can muster.
• Stop being nice to anyone who wants to hurt you or your members, the public and themselves. Ignorance and stupidity can no longer be overlooked and even condoned in the name of peaceful coexistence.

Stay tuned…more to come.

And oh yes, have a nice Day?

Wjc
Caveat Lectores by Jeff Carnes
Read at your own risk.
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Grievance Mediation:  The Most Under-Used Tool in a Labor Leader’s Toolbox

A fight to conclusion, winner-take-all attitude is expensive in both resources and lack of positive results.  Labor negotiation is all about effective compromise.  Learn how to use Grievance Mediation as a device to get positive outcomes for the members. 

Caveat Lectores on Grievance Mediation: Part 1 

I am going to generically define grievance mediation as a voluntary non-binding process using a professional labor mediator to assist the parties in negotiating a mutually acceptable resolution to their grievance dispute, where there is an alleged violation of a contract. It is “Let’s Make a Deal” in real life.

Labor arbitration is the heart and soul of Collective Bargaining. Without and grievance procedure ending in binding arbitration when the parties cannot settle a grievance a collective bargaining agreement cannot be enforced. However, arbitration the final option available to the parties not a desired result.

The Lector, as a labor attorney, has suggested grievance mediation many times to labor union clients. Sometimes successfully; sometimes not. Success occurs when the parties agree to mediate the dispute. All grievances do not have to settle during the mediation to be successful. If the grievance does not settle, the parties at least know more about the facts and issues as they go into arbitration, if it goes that far.

With labor leaders and managers who are not familiar with the process, there is sometimes resistance. This is unfortunate but expected. Mediation requires the parties to enter the process with a desire to settle a dispute. All too frequently, one side or both will only accept an absolute win or loss. If compromise is not an available option, the parties must go an outsider, a labor arbitrator, to cram an unpleasant result on one or both. So be it.

Binding arbitration is a valuable resource for resolving grievances which, for many good and bad reasons, may be beyond the ability of the parties to settle themselves. However, whether the negotiated grievance procedure includes binding arbitration, or does not, mediation of unresolved grievances can be an efficient and cost effective means of resolving many disputes.

My personal experience with grievance mediation, in Florida, has been overwhelmingly positive when I can get the parties to the mediation table. The few times when the process was not successful occurred when the real decision maker was not at the mediation meeting and later nixed the agreement made between the people at the table.

Installment Number 2 will focus in why grievance mediation is not more common.

Caveat Lectores on Grievance Mediation Part 2

The first installment on Grievance Mediation centered generally on the virtues of grievance mediation. This blog is about why grievance mediation is not used more often.

Not all unions and management are sold on mediating grievances. Sometimes, the attorneys are not so much in favor, and arbitrators would go out of business if all grievances were successfully mediated.

A successful mediation requires compromise and when the parties are absolutely unwilling to consider any compromise, there is no value to mediation. Some advocates believe that willingness to mediate will show weakness in a position already taken. Indeed, the system of using arbitration as the ultimate end to labor hostility would be weakened if the parties merely threaten go to war with an obvious resolve to settle every grievance short of the battle. Arbitration must always be reserved for when a settlement is unavailable, and the cause is worthwhile.

Sometimes, the union cannot compromise because the members would rather lose on an issue than admit their position is flawed. Sometimes, management takes the same viewpoint.

Terminations are particularly sensitive. Since a termination is economic capital punishment to an employee and the union, management has a hard time admitting overkill. This is particularly true when safety or bad behavior is an issue. Management can blame the arbitrator for putting an employee back to work if later the employee has more of the same issues that would expose the employer to liability.

HOWEVER, sophisticated parties should be able to recognize the value is settlement short of an absolute win or loss. The fear of losing negotiation superiority because of a willingness to settle any grievance is short sighted when one considers a broader focus than the individual grievance. The collective bargaining and negotiation include processing grievances. Negotiating an end to the grievance can come from mediation where all options are considered.

All too frequently, both parties set themselves up for negotiation failure by pursuing their positions on a grievance as if there were no alternative but to win or lose.

The whole grievance process is a series of encounters where one side tries to convince the other to reverse its course and give in, with each defending its position as if there is no alternative. Management wants the union to recognize the grievance as nothing more than a frivolous complaint and drop the grievance. The union wants to make credible its belief that management if over-reaching and unfair by trying to get management to admit the deceit or incompetence of its managers. Either scenario is flawed.

Creative mediators and willing participants can craft all sorts of options to the win/lose proposition that comes from an arbitration, but it takes effort that some are not willing to expend.

True, mediation require resources, effort and time that can add to the cost of processing a grievance to arbitration; however, settling the grievance with some sort of positive outcome short of a costly arbitration will always save resources and allows the union and management to say they did not lose. Studies show that mediation works nearly 85% of the time. Those are better odds for the union than winning a labor arbitration.

Another extremely valuable aspect of grievance mediation is that it will make it very difficult for a grievant to have a credible claim of failure of the duty of fair representation when the union has gone through the grievance process and even attempted to mediate the grievance. Some would call it cheap insurance in these days when disgruntled employees are looking for someone, anyone to blame for their troubles even their union. Defending a DFR suit or ULP is more expensive than a good faith effort to settle called Grievance Mediation.

Caveat Lectores on Mediation Part 3

--A top ten list. A tongue in cheek explanation as to why mediation may not work.

10. The Parties spent the hours before the session watching Roller Derby or Judge Wapner on The People's Court. (The parties do not understand the process and have not been educated about the process.)

9. The Parties have an aversion to old magazines and the 1989 swimsuit edition of Sports Illustrated in the conference room. (The parties do not realize that time and effort on their part are necessary to a mediation and fail to plan for the session accordingly.) 8.

Mediator serves special green chili enchilada casserole for lunch. Attorneys insist on three martini "conference" at lunch. (The parties and the attorneys need to plan putting the mediation first. A break in attention outside of the mediation risks losing momentum and focus in the progress of the discussions.)

7. Dumb lawyers. (Mediation is no substitute for a lawyer planning and analyzing the law and the case. Mediation helps a lawyer advocate a position -- it does not replace the need for advocacy.)

6. Smart lawyers. (Mediation presentations should not be overdone. Too smart can be as bad as too dumb.)

5. Lack of bathrooms and smoking areas. (Speaks for itself. A mediation should reduce stress and allow for special needs. A party should not need to break off a mediation just to get relief from non-legal needs.)

4. One party believes that settlement means that he won't get his deposit back from the hired mob killer that has a contract on the other party. (Lack of good faith by one or more parties.)

3. Parties are disappointed when mediator shows up instead of a fairy godmother. (Unrealistic expectations.)

2. Persons in attendance have permission to settle case only if the other party is burned at the stake after being drawn and quartered (Lack of authority.)

1. Counsel states in opening remarks (and believes) that his client's case will do to the other party what the dinosaur did to the lawyer in Jurassic Park. (Overly contentious party or advocate and/or a failure to recognize or to consider the shortcomings of the case.)

Caveat Lectores on Grievance Mediation Part 4

This Blog on grievance mediation contains work by T.W. Young, III and Kevin E. Hyde. Mediation-an offer you can’t refuse? I have fought some really interesting labor arbitrations with Kevin Hyde. He is still practicing labor law in Jacksonville, Florida and is a member of the City Council. This is an excerpt from The Survivor’s Guide to a Successful Labor Union used with permission.

What are the Advantages and Disadvantages of Grievance Mediation?

Upside

• Case assessment by neutral third party (if the mediator uses an evaluative technique);
• No restriction on what is said to the mediator;
• Informal process as opposed to arbitration/court system;
• Employer and grievant will get an opportunity to vent;
• Confidentiality;
• Cost: 1/4 cost of arbitration, 1/10 cost of litigation;
• Personal resources: less staff time involved, few or no witnesses, no formal exhibits;
• Time saved: Settlement is frequently immediate
• 30 days or more for an arbitration decision
• 6 months or more for a PERC/NLRB decision
• 1 year or more in civil litigation;
• Parties control the process and the outcome;
• Hearings, arbitrations and trials are not fun and recreational activities. They take a toll on the parties and the relationships;
• Issues may be narrowed even if no settlement is reached;
• Parties may learn from the process and avoid future impasse situations;
• Mediation waives no future rights to continue to arbitration or civil litigation;
Downside
• Most grievances are resolved without mediation;
• Mediation cannot guarantee resolution to the grievance;
• Mediation cannot overcome either party’s desire or need to “win;”
• Mediation requires voluntary agreement to be successful;
• It is successful only to the extent that each party is willing to accommodate the other in those grievances where the available information indicates accommodation is justified;
• Catch-22: mediation’s success depends on the continued existence of arbitration as the next step, but the existence of arbitration as the next step allows the parties to refuse to accept mediation;
• Union may attempt to use mediation to obtain something not available in negotiation;
• Managerial reluctance to voluntarily agree to change;
• Mediation could undermine the union’s support among rank and file on the grounds that the union accepted a settlement that was less than what could have been achieved in arbitration;
• Mediation is not in the self interest of the arbitration advocates and arbitrators;
• It costs one day’s per diem for the mediator and several hours of work by the parties

Grievance mediation will not settle all grievances (86%), but it is a relatively low cost alternative to just automatically pursuing every grievance to arbitration or dropping it. Arbitration is risky and costly, and dropping grievances may save money on the front end only to require a costly defense to a DFR litigation that could end badly and become even more costly.

And oh yes, have a nice Day?

Wjc
LectoresIT.com

Caveat Lectores on a Deprived Childhood

Somewhere along the way of growing up in my family, Mom and Dad just held me back from all I could have been. Maybe my brother and sisters suffered as well, but I definitely did not get the advantages that others in my era were afforded.

They deprived me of what it takes to hate. I am not sure why, but the feeling just is not there. Some of my contemporaries and others as well had the advantage of growing up in households where hate was endorsed.

I just cannot find it in myself to hate someone who is gay just because they are a homosexual. I just do not care. Why should I hate, if they are gay and I am not. I cannot find it within me to hate someone just because they are poor or even lazy or unintelligent. Their race or ethnic background… so what? Why hate them because they are different? I think many conservatives, most right wingers and all teabaggers are stupid, but I do not hate them. I just cannot get up the emotion to hate someone who believes in a different deity than me. My parents did not teach me that way. I feel so deprived or is it depraved? Wait a minute… I do hate cold weather and freezing rain.

 Know your enemies. Make them pay every day in every way, but do not waste time on hating them. And oh yes, have a nice Day?

Wjc

Caveat Lectores by Jeff Carnes Read at your own risk. 11,000 Readers in 633 Cities, 47 States and 28 Countries Lectores Labor Consulting 813-240-8165 Caveat Lectores on Facebook http://www.facebook.com/pages/Caveat-Lectores-by-Jeff-Carnes/363591216910?ref=ts Do the Lector a favor: If you like the stuff we post, share it on your Facebook profile by clicking the "Share" link under the item you like. Also, please use the "Suggest to Friends" link below our logo in the upper left corner to tell others about our Facebook page!

This is a story with me in it. I have written stories with this title before, but they were not really about me. This is different. This past January 5 or so, I woke up to a Technicolor fireworks display going off in my left eye. “Surely, this is my imagination and it will stop soon.” But it did not. By the end of the day, it was obvious, even to me, that something was wrong with this spectacular event being broadcast in living color in my eye. I called E/S and we found an ophthalmologist who was willing to see me the next morning, first thing. When I got to see the Doctor, he examined me with little interest in my weird story of flashing lights but continued to search for a cause. He carefully explained the “floaters” were common for people my age. At one point, he finally realized I would not relent and gave me a test that showed significant damage to the peripheral vision in the left eye. He suggested an MRI, and off I went. After the MRI, I went home and waited. Later, he called and said in a chillingly calm voice that it appeared I had had a series of at least three strokes and should go to an emergency room immediately. JFTDC, I had an arbitration scheduled for the next week and was not pleased. I called E/S to ask if she would take me to the ER while trying to stay calm. I spent three days in the ER with some really great people making a serious effort at finding out what was wrong, keep me from going nutso and understanding that I had no insurance and very little money to pay the bill. I think they literally kept me in the ER because once released or assigned to a regular hospital bed the system’s obligation to care for me would shift to my ability to pay for service or suffer. In other words, they may have tacitly conspired with me to work the system for more that I could pay for. They surely saved my life as I know it. The tests revealed at least three stokes (CVA) had occurred. Anecdotal evidence indicates the first may have been in early November, then late December and finally early January. As far back as November, I was complaining profusely about my inability to focus on my work. I functioned adequately but not without a struggle. I thought I had just recently become lazier than usual and unfocused. I needed to constantly supervise myself to keep me on task. My daughter E/P picked Christmas day as one of the dates because she noticed I misspelled her name twice on her Christmas present. She was hurt and confused about why I would do that. Finally, when I awakened with color flashes that made it impossible to function, it was time to do something. Mercifully, the deleterious effects are minimal. I am getting used to the visual displays that are now only black and white ghost images. I am working on the lack of focus, but it sucks to have to motivate myself to do what I would otherwise do willingly. WORK is the thing I love to do. I have been unable to identify any deficit in memory, intellect or physical ability not already affected by age. I guess I am lucky, but I am so angry and scared I cannot decide whether to explode with rage or implode with fear. I could have died or worse. For me, infirmity is worse than death. We all die, but not all of us have to endure the indignity associated with lying helplessly in a bed waiting to die. It is my worst nightmare. I am very lucky I had E/S, E/P and my brother KJC, who immediately flew in from NC, all of whom figuratively held me up as I lay on a hospital gurney for three days waiting the results of the tests that would only confirm what we already knew. One of the neuros who physically examined me but not the test results had assured me I had not had a stroke, but he did not know what was wrong. The unknown is terrifying. It was a strange feeling to realize how mortal and dependent I could be as well as how afraid. Once, when E/S left for a while to take a break and a shower, I found myself without a hand to hold. When my daughter E/P grabbed my hand, all I could do was turn my head and cry. I don’t cry. Finally, the hospital doctors and nurses did all they could do and they let me break out of what seemed like a beneficent prison. Now, I had to face up to an even more scary future. JFTDC, I hated what was happening to me. I had lost control of my life. The healthcare system was now in charge. I either do as I am told or make plans for the funeral. But for E/S I would probably be dead or worse. She takes care of the important things while I, through denial, try to work as if nothing happened. No matter how much I try, there is always the recollection of the fireworks and the fear something else may break loose and land in my brain making me a vegetable. She pays the bills without me having to deal with them and negotiates with the providers so I can make payments to keep me from stroking out from the rage caused by my inability to effectively ignore this. Between the efforts of E/S (my love) and D/E (my assistant) I never actually have to do anything but sign the checks and make sure there is money in the accounts so the checks do not bounce. Not everyone has this kind of cushion to insulate them from reality. Not everyone has someone who cares. E/S and E/P have shown me they love me just being there when they could have been too busy. KJC calls regularly to check on me. The medications that are keeping me from stroking out are very expensive even with diligent work to reduce the cost, and they are kicking my ass. All drugs have side effects. Getting the right cocktail that will do the job without making me really unpleasant is taking some work. The desire to live will require me to take them forever. This is a new experience for me. Many people have been Rx drug dependant for much of their lives. I was lucky until now. Just because I was spoiled with good health did not insulate me from reality when it finally found me. As it stands now, I go to sleep each night with the positive attitude that I will awaken to find more healing but with the insane fear that there may be more damage and inevitable infirmity. I am lucky. I try not to think about those who are not so lucky, but I do. It could be me. And Oh yes, Have a nice day.