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Greg Dannis Gives Keynote Speech at ACSA’s 2014 Symposium for Negotiators

Jan 22, 2014 | Legal Developments and News

By Gregory J. Dannis

ACSA’s 2014 Symposium for Negotiators
Keynote Presentation

About six months ago, I was exploring the basement of my house.  The floor is rough concrete and sometimes when it rains, little streams and rivers spring to life.  As I walked around, I noticed an overturned cardboard box, out of which some of the contents had spilled.  One of these items was a thin, fully decomposed seven inch square box.  Sticking out of that box was a round reel to reel tape, partially unspooled, spilling out onto the cement.

[Let me pause here for a moment and ask:  Do I need to explain to all the young folks in the room what a reel to reel tape is?] 

Being reasonably certain this tape was irretrievably damaged, I picked it up to take to the trash, but then I noticed there was writing around the outside edge of the reel.  It said: “Dannis and Carruth: Live in Concert at Dublin High Little Theater, March 26, 1976.” I was stunned!

Almost 38 years ago, Jimmy Carruth and I played a live concert at Dublin High School where we performed over 30 original songs.  But I had no memory that this concert had been recorded!  My surprise and excitement were immediately dampened, however, by the realization that this old tape, having sat on cold wet cement in a basement for over 20 years, was utterly destroyed and would produce no intelligible sounds.

Having nothing to lose, I found a place that claimed it could restore any tape, no matter how damaged, and transfer it to a CD.  [You all know what CDs are, right?]  So I paid the $50, boxed the tape, sent it off, and forgot all about it.  Then, four weeks later, a box came in the mail and, lo and behold, inside were two shiny new CDs. I couldn’t believe it.

With great anticipation, anxiety and apprehension, I inserted the CDs into my computer and began to listen.  It was like an out of body experience!  The sound was amazingly pure and the voices and guitars were as clear as if they had been recorded yesterday.

I can not describe fully my reaction, except to ask you: How would you feel if you could go back in time almost 40 years and return to what you were thinking, what you were feeling, and what you sounded like expressing those thoughts and feelings?  For me, it was both eerie and like a fulfilling reunion with an old friend.

As I listened to the music though, I began to despair that there was no link between who that person was and who I have become.  But then, near the end of disc two, came a song called “World of Difference” with these lyrics:

I’ve been readin’ so many books
All about the way it all should be.
I’ve been readin’ so many pages
I never get the chance to see
That there’s a world of difference between all them words
And what’s goin’ down under me.

When I heard these words, I felt an emotional connection between my past and my present! I began thinking deeply about what I now call the World of Difference principle.

The World of Difference Principle
I have negotiated for over 30 years.  Using conservative numbers, I bargain about 20-30 contracts a year, for a total of, let’s say 750.  Although some negotiations last over a year and some finish in one session, a fair average is probably about 100 hours.  750 times 100 hours is 75,000 hours; divided by 24 hours, this is 3125 days. This means I’ve been at a bargaining table negotiating for more than 8.5 years of my life!

After all that time, there is one truism of which I am sure: There is indeed a world of difference between the words we speak in negotiations, the pages we write into contracts and the real world of negotiations in public education.

That’s what I would like to talk about today—the difference between what we do and what’s really goin’ down under us out there.  The difference between what we say and what we really mean. Some of the distinctions are minor, even trivial, while others cut to the core of what we do.

The World of Difference principle is especially relevant for us because in no other forum is code-speak used more frequently than negotiations.  For some reason, in a process intended to educate, communicate and ultimately persuade, participants put great effort into using words and phrases to disguise what they really mean.  This may be because many believe the most dangerous word that can be spoken in negotiations is “no,” the second most dangerous is “yes,” and the negotiator’s job is to find a way to say neither.

The Dilemma of Outreach and the Quandary of Collaboration
What causes this?  I think part of the answer lies in what I call “the dilemma of outreach and the quandary of collaboration.” Let me explain. We face many challenges that call for innovation, creativity and teamwork.  The Common Core State Standards is a perfect example.  According to many, this is the most fundamental shift in decades in how to teach.

Most administrators and board members—and I am a school board member—believe strategies for implementing the standards should involve those who actually do the teaching.  One would assume, therefore, that teacher unions would be obvious partners in this endeavor.  As one commentator noted:

“I support teachers unions not because they are models of efficiency or because they are always right or because I think there is no need for reform—I believe that the unions can be inefficient, they can be wrongheaded, they can oppose change unnecessarily.  No, I support teachers unions because they are the best chance this country has to improve and strengthen public education for the long haul. No other organization will step in to protect teachers from political blowback and the reform-trend-of-the-moment.” (Erik Kain, Forbes Magazine, September 28, 2011.)

We already see political blowback, with some claiming the standards are part of a nefarious federal conspiracy to take over and homogenize education throughout the country.

In any event, instead of reaching out to teacher unions to collaborate on the standards, many fear the association will instead seek to dominate, negotiate and ultimately wield veto power. Sometimes this fear is justified by past conduct, and sometimes it is unfounded, but it yields the same result.

Instead of seeking a partnership with labor as it sincerely wishes to do, management does not reach out at all, and the opportunity for meaningful collaboration is lost, to the detriment of both sides and, significantly, students.  So is born the dilemma of outreach and the quandary of collaboration.

This year, many employers never even had the chance to consider reaching out.  Before the ink was even dry on the standards, we received strident letters demanding to bargain any and all aspects of the standards, ordering the district to cease and desist from taking any action such as planning professional development or drafting technology plans, and threatening unfair practice charges if the district took even the most preliminary of steps to move forward.  In one district, the union even “ordered” all teachers to refuse to cooperate or engage in any activities related to Common Core until the district met and negotiated over the union’s demands.

In response to these combative overtures, districts were, as you would expect, compelled to reciprocate if only to preserve their right, in the words of the law, to define “educational objectives [and]…the content of courses and curriculum,” subject only to a duty to consult  and not negotiatewith the union.  Thus, our responsive words masked our underlying openness to collaboration.  Instead, we must be wary and more vigilant in understanding and asserting the nuances of our obligations of the legally required dialogue spectrum with labor—from consultation to decisional bargaining to effects bargaining.

Whoever devised and advocated labor’s aggressive approach should heed the words of former Speaker of the House Sam Rayburn when he said, “I’ve found that the world will meet you half way, if you will let it.”  Even more to the point, Mr. Rayburn said, “Remember, any jackass can kick down a barn door.  It takes a carpenter to build one.”

A World of Difference for Teacher Unions?
It may well be that teacher unions are in a building mode, or at least playing “catch-up” when it comes to educational reform.  Maybe they are feeling the impact of the World of Difference principle.  According to one observer, when unions emerged in the 1960s to protect teacher interests, they adopted the industrial union model to fight for better salaries, job security and working conditions.  They did not, however, attempt to wield influence over teaching itself, based on a belief that quality teaching depended on the skills of the individual, rather than on collective efforts.

More importantly, union leaders believed educational quality control was a management responsibility. (Taking Back Teaching, by Richard Colvin, Education Next, Spring 2013, Vol. 13.)  By contrast, said the same writer:

“The union’s role was to enforce fairness through rigid salary schedules, a fetish-like attachment to seniority policies, and aggressive enforcement of due process rules. This has left unions ill-prepared to respond to current demands on teachers and schools to boost test scores, increase graduation rates and better prepare students for success in college or on the job.  They’ve been unable to block the rapid spread of policies that seek to link tenure decisions, the order of layoff, job security, and even compensation to performance.” (Taking Back Teaching by Richard Colvin.)

Out of necessity, however, this “we protect rights and you prescribe teaching” stance is changing.  In California, a trial will begin in five days, challenging laws affecting tenure and seniority on the basis that they have a disproportionate impact on disadvantaged students.  There is the High Quality Teachers Act of 2014, a proposed initiative under review by the Attorney General that would abolish seniority and replace it with evaluated performance in assigning and laying off teachers.

Initially, this sounds like an improvement over a system that dictates who will teach our children solely on the basis of how long, but not how well, they teach.  Upon reflection, however, we need to scrutinize our processes, criteria and standards for determining superior and deficient performance before we base a teacher’s livelihood on these measures.  Are we ready?  Many experts think not.

Author Diane Ravich describes performance-based pay as “the idea that never works and never dies.” (Reign of Error, By Diane Ravich, 2013.)  Professor Bob Sutton is wary of rankings and yearly evaluations in general. Many organizations, he claims, would be better off if they provided continuous feedback, with formal evaluations coming into play mainly if a worker is being eyed for promotion or has shown substandard performance.  He describes the current state of evaluations as follows:

“If performance evaluations were a drug, they would not receive F.D.A. approval [because] they have so many side effects, and so often they fail.” (Work Matters [Blog], By Bob Sutton.)

We must evaluate, however, in order to distinguish the proficient from the poor. Even Professor Sutton agrees, saying, “I think it is important to make clear that I am not opposed to all performance evaluations, only bad ones  —and unfortunately, they are done badly more often then they are done well.”

Perhaps the time has arrived where some in labor are finally owning up to the World of Difference here, and are prepared to participate meaningfully in real, student-centered reform if for no reason other than to avoid having no voice in change efforts.  Both Randi Weingarten, president of the American Federation of Teachers (AFT), and Dennis Van Roekel, president of the larger National Education Association (NEA), recognize the threat of potential union irrelevance to the reform groundswell.

In his keynote speech to NEA’s Representative Assembly in July 2012, Van Roekel said teaching is “OUR work…OUR profession.”  But, he said, “That sure doesn’t stop everyone from having an opinion on how to do our work, does it?”  Van Roekel said that “teachers are willing to take responsibility for student success—and they want and deserve a voice in how they’re trained, supported, and evaluated.” (Taking Back Teaching, by Richard Colvin.)

If this is true—if teachers and their unions are truly ready to take responsibility for policing their own profession in the interest of those for whom their profession exists—and some already have—they must put an end to the World of Difference between this pledge and the words and tone being used by unions to supposedly reach out for collaboration.  Words like “we demand,” “you shall not,” and “we will sue” serve only to poke employers with a sharp stick, rather than extend an olive branch.

There are many other examples of the World of Difference principle at work in negotiations.

“This Isn’t About You”
Take for instance the statement “This Isn’t About You.”  In attempting to justify a proposal to narrow management rights or enhance employee protections, a common union rationale is: “This is not about any of you at the table; in fact you are all the most fantastic administrators we’ve ever known!  This is not even about the current superintendent or board; they are wonderful too!  But, you won’t always be here, so we need safeguards for when the evil regime arises, as it surely will after you leave.”

Thus, we have a proposal for a solution in search of a problem.  Negotiators must always keep in mind that we are stewards of a contract, a binding and enforceable legal promise, the content of which cannot depend on the goodness or badness of any individual at any given time.

One thing I have come to appreciate after serving as a school board member is that we are transitory—we are all just passing through an institution that must remain strong for generations of students.  When asked about my agenda or philosophy as a school board member, my response is always the same: “First, do no harm.”  The same credo should apply to negotiators: We cannot carve in contractual stone language that concentrates on the people, personalities or issues of the moment.

“Perception Is Reality”
An offshoot of the “This Isn’t About You” tactic is one of my most hated: “Perception is Reality.”  No it isn’t—that’s why they are two different words!  Perception is opinion which need not rely on any facts for its existence, whereas reality is truth that cannot be tempered by baseless opinion.  Saying “Perception is Reality” exemplifies the World of Difference principle because it rationalizes any proposal with absolutely no requirement that it have any relationship to the district or any of the people who work there.

The next time you hear the “P is R” ploy, I suggest you respond by proposing to delete the hours of work, class size, transfer, evaluation compensation and health benefits articles from the contract.  When challenged, simply respond, “Well, we perceive these provisions are impeding our efforts at student achievement and preventing the efficient operation of the District.”  When asked to prove it, you know what to say.

“Treat Us Like Professionals”
Ranking right up there with “P is R” on my loathing list is the phrase “Treat us like professionals.”  Nowhere else is the World of Difference gulf so wide as it is between these words and universal contract language.  A typical agreement goes on for pages to describe in minute detail matters such as:

  • How many days must I teach?
  • How much time must I be in front of students actually teaching?
  • How much time can I refuse to interact with students, colleagues, administrators or parents?
  • What time does instruction start and end?
  • How long must I remain on campus?
  • How much of the time must I be available to parents and students when I am on campus?
  • How many and what kind of activities directly related to students but outside the classroom must I perform?
  • How many periods of teaching will there be?
  • How much, if at all, can I be required to plan, prepare and collaborate during designated planning, preparation and collaboration time?
  • How am I made whole if my preparation period falls on a Monday or Friday holiday?
  • How many staff meetings must I attend, and how long can each one be, and how many in a week, and on which day will they occur?
  • How many days must I engage in professional development?
  • Do I have to attend Back to School Night or Open House?
  • And finally, can I take a day off whenever I want for no reason and without advance notice, even if students are in attendance and substitutes cannot be secured clearly stated?

Being masters of language, as we lawyers are, I would describe the World of Difference principle here as follows: “Notwithstanding the foregoing provisions (or any of similar meaning, connotation or implication which may be set forth hereinafter), which terms appear to or may be construed as directly in conflict with the following mandate, such requirement is nevertheless a material term of this contract: Treat me like a professional.”

The Power of Projections
To be fair, labor does not have a monopoly on the World of Difference principle.  As the saying goes, nobody is on the side of the angels all the time.  Both sides are free to resort to hyperbole such as “what we deserve,” “respect,” “fiscal responsibility,” “management discretion,” and “what’s good for students.”  Use of these sayings should set off a warning claxon in your mind, screaming, “Danger! Danger!  Your negotiations are about to enter a DFZ—a Data Free Zone!”

My all time favorite that has lost all meaning because it has been used so many times by both sides to justify any proposal is the ubiquitous “Attract and Retain.”  If I hear that one more time, I may attack with disdain!

For employers, I think the World of Difference principle crops up most frequently in the use of economic projections.  We know AB 1200 requires employers to guarantee balanced budgets two years into the future whenever a dollar is proposed to be spent this year.  And, due to a more recent change in the law, we have lately enjoyed the heartfelt cries of CBOs threatening that “If you agree to it I will refuse to sign it!”

My question is, who among us can predict the California economy and education budget two years from now?  As Nobel laureate scientist Nils Bohr once said, “Prediction is very difficult, especially if it’s about the future.”  If anything, our fiscal crystal ball has become cloudier with the demise of base revenue limits and the arrival of the Local Control Funding Formula.

I have stated openly in my school board member role that I understand the necessity and value of projections, but with all due respect, I will pay scant attention to any forecast of what will be two years from now.  No one can know this.

But predict we must and project we should, and not just because the law says so.  As another scientist said, “It is far better to foresee even without certainty than not to foresee at all.” (The Foundations of Science, by Henri Poincare.)  Nevertheless, we should not permit decision-making for the present to become prisoner to somebody’s version of what will happen two years hence.  I will certainly not give credence to over-enthusiastic fiscal forecasts four, five and six years from now.  My repeated advice to boards and negotiating teams is that we cannot fall victim to what I call “paralysis by projection.”

Using projections is not the exclusive province of management by any means. The protocol seems to be that “projections” is a four letter word when a district uses them in support of fiscal restraint, if not for a depiction of impending doom.  Miraculously, however, projections become highly relevant and absolutely legitimate when labor employs them to predict the vast amounts of increased revenue a district is sure to receive.

I think there is a simple way to escape the World of Difference principle in economic negotiations. Both parties must take a balanced approach that includes familiarity with the past, due consideration of what the future might hold, and the consequences of actions we might take and bargains we make based on an informed picture of the present.

It is not easy for either side to achieve this strategic equilibrium, and we should expect to have to work through disagreements.  It’s like the old joke: “The past, present and future walk into a bar. It was tense.”

Silence Is Golden
Another widespread bargaining fallacy is that more talk equals better negotiating; that he or she who can spout more words, especially those that dazzle and confuse, is the better negotiator.  If there is one negotiations axiom, however, it is that the opposite is true: Silence is truly golden and listening is the sign of a proficient negotiator.

This sounds counterintuitive for one whose job is to be a spokesperson, but there is no inconsistency here. The best negotiators are the best listeners.  As one person put it, “It is a well-known proposition that you know who is going to win a negotiation: it is he who pauses the longest.” (Robert Court.)

Calvin Coolidge once said, “I never have to explain anything I haven’t said.”  Reticence is not, however, just a way to avoid making mistakes.  In bargaining, my silence is usually in recognition of the fact that people abhor a vacuum and feel compelled to fill the void. I want my counterpart to explain, explicate and expound until the real goal or interest is disclosed, or the absence of any substance underlying the proposal is revealed.  As one writer put it: “Never forget the power of silence, that massively disconcerting pause which goes on and on and may at last induce an opponent to babble and backtrack nervously.” (Lance Morrow.)

Lest there be any doubt that table silence is indeed golden, consider this: It is no coincidence that the words silent and listen have the same letters in them.

“It’s Nothing Personal”
Another sure sign that the World of Different Principle in play is when someone remarks, “It’s nothing personal.”  Indeed, a cardinal rule for negotiators is “Don’t Take Anything Personally.” As one author wrote:

“Nothing others do is because of you. What others say and do is a projection of their own reality, their own dream. When you are immune to the opinions and actions of others, you won’t be the victim of needless suffering.” (Miguel Angel Ruiz.)

If we let emotions interfere with our thoughts, we may miss opportunities for movement and fail to see potential agreements.  We constantly tell ourselves, “No matter how intense the discourse, I will never get angry.”  Ralph Waldo Emerson wrote, “For every minute you remain angry, you give up 60 seconds of peace of mind.”

Keeping track of all the proposals, the law, your direction and the emotions at the table certainly requires peace of mind just to keep everything straight.  Simply put, if we let emotion take over, we disable ourselves from doing our job.

This all sounds so reasonable, doesn’t it?  I am here to confess openly that after spending eight and a half years of my life at the table, it is just not true.  I learned The World of Difference between the truth and the “Don’t Take It Personally” rule just this past year, and it was not easy to accept.

I have been at this table for about ten years.  Our dialog was always respectful, constructive, and usually laced with good humor.  In fact, the union even told the district it would not meet unless I was present, and more often than not, there was no paid union representative in attendance.  We always reached an agreement to the satisfaction of both parties.

Then, last year, the local union president requested to negotiate without “the lawyer.”  The parties deadlocked after a few sessions, whereupon I was invited back. Admittedly, the district’s proposals would fundamentally impact core issues for the union, including health and welfare benefits.

After a few sessions, the parties were moving farther apart, and on my advice, the district declared impasse, which PERB certified.  The union immediately began to engage in the standard “festivities” to pressure the Board and superintendent to surrender their proposals and grant a raise in total compensation.  I was not surprised to see activities I had seen hundreds of times before.

But then came something new:  For some reason, part of the union’s strategy was to target meprofessionally and personally.  My email was flooded with messages that were vitriolic, malicious and bordering on the obscene.  Words like “scum,” “Adolph Hitler,” “Satanic,” and “a tick sucking the life blood out of teachers,” are only a few examples.

I have been though several teacher strikes and have bargained through impasses in most of the largest districts in this state, but this was the worst and most vicious behavior I have ever encountered. It troubled me that the people saying these things were teaching children.  It got so bad that my IT department set up a filter to send these emails directly to a separate file so I would not have to see them.  There are over 1,100 emails in that file.

As if that were not enough, teachers also started calling my office and screaming and blowing air horns in my receptionist’s ear.  Eventually we screened calls too, because some nasty messages got through to my voicemail.  While this was going on, I learned the regional CTA office held a meeting of union leaders in the county to extol the virtues of their new form of protest—they proudly called it “E-picketing.”  After impasse was declared, the teachers demanded, and the district agreed to return to the table before official mediation began.  I returned to the table to face the people who were saying these things about me, but I was determined not to let this interfere.  Then, at the end of a session one night, the union team thanked me for being there and for trying to pursue creative ideas to resolve the impasse.

I could not stay silent any longer. I asked them, “How can you sit there and smile and thank me for being here while attacking me, maligning my professional reputation and questioning my personal integrity?”  Their response?  “We have no idea what you are talking about.  Those things are planned by the “Action Committee” and we have nothing to do with them.”

For a moment I was speechless.  Then I said in as controlled a manner as I could: “You are a single organization and you are accountable for that behavior—you cannot wash your hands of this.” Most of their faces were downcast and they were silent.

I learned some important things from this experience, not only about negotiations, but also about me:

  • The “Don’t Take It Personally” rule is not infallible.  It can become personal.  I confess the attacks on me were hurtful and caused more than a few sleepless nights.  Much as we would like to believe it, our armor is not impermeable.
  • There can be an amoral aspect to negotiations. “The ends justify the means” mentality makes everyone involved in the process a potential victim.  As one union negotiator told me years ago, “We will be just fine with you unless you get in our way.  When that happens, we will get you out of our way.”
  • No matter how friendly the people at the table seem to be, I will always hold some essential part of me in reserve.  My job is not to be their friend, nor are they there to be mine.  We are there to do business in as professional and civil a manner as possible.  We can joke—in fact humor is an essential element in negotiations—but we are not buddies.
  • The professional obligation to the client—and, in my case a legal duty as an attorney—must always remain paramount for the negotiator.  I wanted to be anywhere else than at that table, but I showed up, even when I was very sick.  I put all my efforts and energy into reaching an agreement, and eventually we did based primarily on options I had crafted.  I will never lose sight of my primary purpose as a negotiator—to reach an agreement both sides can live with consistent with the goals and core values of the district.
  • A corollary to the above is that I am keenly aware of my obligation to pursue the Board’s direction and not my own notion of what the right answer is.  I could not figure out why this union targeted me when my only role was to facilitate reaching agreement, rather than making the policy decisions underlying the Board’s proposals.  My job is to seek solutions to conflict, to offer options, to push my client to consider new directions and to provide likely outcomes to different choices.
  • Finally, I learned that for all our efforts and capacity to step into the other party’s shoes—an essential talent for a good negotiator—ultimately, “We do not see things as they are; we see things as we are.” (Anais Nin.)  We can never see or hear things with complete objectivity, and we should not expect to.  Instead, we must discover, confront and be conscious of our filters whenever we negotiate.

I close these remarks by returning to my original song lyric: “There’s a world of difference between all them words, and what’s goin’ down under me.”

We need to challenge and abstain from using meaningless words that allow parties to negotiate in Data Free Zones.

We must ask ourselves and our counterparts: Is what we are saying and proposing furthering or impeding confronting the realities of the problems we are at the table to solve together?

We should insist on a ground rule for every negotiations which states, “When all is said and done, more will have been done than said.”

We should steer clear of negotiations which end up just splitting the difference.  Instead we should strive for negotiations that make a difference.

Maybe even a World of Difference.

Thank you.

Gregory J. Dannis


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