Anatomy of a CBA January 20, 2015 Presented by: Sarah Levitan Kaatz Whats Ahead Just BeClause The Vital Organs Spare Parts Often Neglected and Ignored What Must Be Negotiated? Government Code section (a) (1) states that the scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment Terms and conditions of employment includes: Health and welfare benefits, leave, transfer and reassignment, safety conditions, class size, procedures for evaluations, organizational security, grievances, and layoffs. Where Do You Start? Initial Bargaining Proposal: the initial set of articles and topics sunshined at the start of negotiations for a new collective bargaining agreement. Successor Agreement versus Reopener negotiations. For Successor Agreement negotiations, read over your entire contract. Often Neglected and Ignored Duration of Contract Multiple year agreements versus one year agreements Three Year Maximum Appalachian Shale Agreements Update your dates! Recognition Article This provision recognizes the union as the exclusive bargaining agent for all employees in the bargaining unit. States who is considered in the unit. May: State all new positions are presumed in the unit State categories excluded State positions excluded Recognition Article CSEA Policy 610 (the Clovis case) The negotiated agreement must generally be executed by both the local chapter and state association. Protocol for ratifying tentative agreements involves submitting the agreement to the local representative, who will pass it on to the chapter president before the unit members convene to ratify or reject the agreement. In the Clovis case, the CBA listed the exclusive representative as CSEA and its chapter. Would the result be the same if CBA only mentioned the chapter? (California School Employees Association- Chapter 250 v. Clovis Unified School District (2002) PERB Dec. No ) Organizational Security Addresses dues collection Members Service fee payers Religious exemption Hold harmless Make sure you have it! Pending Litigation Friedrichs v. California Teachers Association United States Supreme Court heard oral arguments on January 11, The decision should come out sometime in June, Challenges fair share provisions as violating the First Amendment right to free speech. The fair share provision requires employees who do not want to be part of a union to nonetheless pay a fair share fee to the union; this is also often referred to as an agency fee. The fee is meant to cover collective bargaining activities which will benefit non-union members. Pending Legislation The Legislature is expected to consider a statute requiring a union orientation for all new employees. Many agreements already provide for union information/orientation. Stay tuned. Union Rights and Responsibilities Details the Unions rights, such as: Release time Officers Negotiations Process for requesting or approving classified employee leave for organizational activities (Ed. Code 45210) Mailboxes/bulletin boards Use of buildings/equipment Orientation by CSEA Management Rights Do you have an article? May include: Hiring additional employees to do bargaining unit work School curriculum Times and hours of operation The number and kinds of personnel needed Establishing educational policies, goals, and objectives Budget procedures and methods to raise revenue Reserves all managerial rights and prerogatives May still need to bargain the effects of the decision Management Rights The California Supreme Court has established a test on negotiating the implementation of a fundamental management decision: Significant and adverse effect on employees wages, hours, or working conditions. That arose from the implementation of a fundamental managerial decision. Then the action is within the scope of representation if the employers need for unencumbered decision making in managing its operations is outweighed by the benefit to the employer- employee relations of bargaining about the action in question. (Claremont Police Officers Association v. City of Claremont (2006) 39 Cal.4 th 623; Building Material & Construction Teamsters Union v. Farrell (1986) 41 Cal.3d 651.) Management Rights- Example Principal required teachers provide weekly lesson plans, bi- weekly student progress reports, report absences orally and in writing, etc. Without showing a past practice or written agreement regarding these items, there was no unlawful unilateral change. The assignment of work is a nonnegotiable management prerogative if newly assigned work is reasonably related to existing duties performed. (United Educators of San Francisco v. San Francisco Unified School District (2009) PERB Dec. No ) Savings Provision Example: If during the life of this Agreement there exists any applicable law or any applicable rule, regulation, or order issued by governmental authority other than the District which shall render invalid or restrain compliance with or enforcement of any provision of this Agreement, such provision shall be immediately suspended and be of no effect hereunder so long as such law, rule, regulation, or other shall remain in effect. Such invalidation of a part or portion of this Agreement shall not invalidate any remaining portions which shall continue in full force and effect. Effect of Agreement Example: It is agreed and understood that the specific provisions contained in this Agreement shall prevail over District practices and procedures and over state laws to the extent permitted by state law and that in the absence of specific provisions in this Agreement such practice and procedures are discretionary on the part of the District. Support of Agreement Example: The District and the Association agree that their mutual benefit to encourage the resolution of differences through the meet and negotiation process. Therefore, it is agreed that the Association will support this Agreement for its term and that negotiations will be conducted only at the negotiating table. Just BeClause Crazy But Common Clauses Calendar Not included in all CBAs Why might you want it in yours? What is and isnt negotiable? Often in hours/workday Calendar In Pasadena City College, the District unilaterally changed from a semester calendar to a trimester calendar. Changes to employee work hours are negotiable, which means that changes to the academic calendar, if the changes affect work hours, are a negotiable change. Changes to the student calendar, if they do not affect work hours, may not require negotiations. (Pasadena City College Faculty Association v. Pasadena Community College District (2015) PERB Dec. No ) Escalator Clause Ties salaries to an external standard, such as the consumer Price Index (CPI). Self executing If the CPI is used in the escalator clause, the theory is that real wages will remain stable during the term of the agreement. Pros/Cons Grandfather Clause Employees places on payroll before a specified time will retain certain rights and benefits, even though newer employees will not be entitled to the same rights. Examples: Changing who qualifies for benefits. Changing educational or work experience requirements for certain positions. Changing the composition of the bargaining unit. Most Favored Nations Clause (AKA me too!) Gives the union the opportunity to share in a more favorable settlement if it is given to another unit or group. Define it well! Does it apply to other units or also to management/contracted employees? Is it given to another unit or group. Is it salary only? Often used when employer settles early with one union while negotiations continue with other unions. In contract or just in Tentative Agreement? Me Too Clause Example PERB found the District violated EERA by agreeing to an illegal bonus provision. The provision required the District to pay a 10% bonus to members of the unit if the District agreed to a me-too clause with any other bargaining unit. Precluded the District from negotiating about a lawful subject with representatives of other bargaining units. (Associated Administrators of Los Angeles and Service Employees International Union, Local 99 v. Los Angeles Unified School District; United Teachers Los Angeles (1995) PERB Dec. No ) No-Strike Clause Also referred to as a no-concerted activities clause The union promises that during the life of the CBA, the employees and union will not engage in strikes, slowdowns, sickouts, or other job actions. May also include an agreement by the District to not engage in any form of lockout of employees during the term of the agreement. Evaporates upon expiration of the CBA No-Strike Clause Strike preparation prior to completion of fact-finding is not a per se unfair labor practice. (Sweetwater UHSD, 2014.) No-strike clauses will be narrowly construed. Is the no-strike clause enforceable during reopeners on the no- strike clause? Re-Opener Clause Usually in Negotiations Article States how many articles may be opened each year by each party May include timelines Zipper Clause Zipper clause should state that the written CBA is the complete agreement of the parties and that anything not contained in the written agreement is not agreed to and is not part of the agreement. Intended to stop either party from demanding renewed negotiations during the life of the agreement. Limits grievance arbitrators ability to consider evidence beyond the written contents of the CBA. Normally expires with the contract. Zipper Clause Example Providing notice and an opportunity to negotiate a change in policy or addition of a new policy is insufficient when a zipper clause is in place. If a zipper clause is in place, the Association will be under no obligation to request bargaining over proposed changes. Each party voluntarily waived the right to meet and confer in good faith with respect to any subject or matter referred to or covered in the agreement. (San Bernardino County Public Attorneys Association v. County of San Bernardino (Office of the Public Defender) (2015) PERB Dec. No M.) Past Practice Clause The opposite of a zipper clause. States that the previous practices of the employer will continue during the term of the CBA, unless modified by the language of the agreement. The Vital Organs Salary/Compensation Benefits Hours/Workday Leaves Transfers/Reassignments Evaluation Grievance Negotiations The Vital Organs Vacation/Holidays (Classified) Layoff/Reduction in Hours (Classified) Discipline (Classified) Class Size (Certificated) Salary Single year Multi-year Agreements Contingency Language Escalator Clause Me, Too Health and Welfare Benefits Whats included in the benefits package, and who is paying for it. Medical, dental, vision, life insurance Retirement benefits Cadillac Tax Who pays increases? Leaves Personal days Family Care and Medical Leave Catastrophic leave bank Bereavement leave Jury duty/witness leave Industrial accident and illness leave Personal leave Update for paid sick days (AB 1522) Update certificated CBAs for new maternity leave/differential pay provisions (AB 375, Ed. Code ) Transfers and Promotions One of the most commonly grieved articles Ask managers if language has prevented transfers Beware of seniority based decisions Retain ability to transfer in the best interest of the district Beware of provisions preventing disciplinary transfers Layoffs Typically in classified but not certificated contracts. The decision to layoff positions must be left with the District! For Classified, consider: Reduction in hours Bumping up in hours Seniority by date or hours Discipline Most Certificated CBAs do not include this. Can negotiate policies and procedures for suspensions of 15 days or less. Classified CBAs often set out cause for dismissal, as well as procedures. Watch for narrow definitions of causes! Example: Use of narcotics on District property which adversely affects the District. Discipline process Who hears the case? Grievance Procedures The enforcement mechanism for the entire agreement. Should include definitions such as grievance, day, party in interest, etc. Make sure time lines do not allow union to sit on an issue for too long Can a District file a grievance? Enhancements or Surplus? Articles That May Not Belong Year Round Education Peer Assistance and Review (PAR) Programs Job Descriptions For Your Consideration Non Discrimination Safety Provisions Job Sharing Professional Growth Personnel Files Retirement (Willie Brown) Special Groups Transportation ECE Adult Education And in the End . Sick CBAs never die. Surgical correction is the only option. Questions 49 Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact or call (559) Copyright 2016 Lozano Smith All rights reserved. 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