Mgmt 583

Chapter 10: Non Wage Issues in BargainingFall 2008

Non Wage Components of the CBA Union security (level of compulsory membership)

Check off clause Individual security/ seniority Layoff and rehiring Bumping privileges Hours and overtime Management rights No strike/no lockout Discipline/discharge Contract term/duration Contract administration Vacations (entitlements, eligibility, etc.) Working conditions and workplace safety EEO protections

Union Security - Compulsory Union Membership

ExclusiveBargaining Rights

AgencyShop

Maintenance of Membership

Shop

ModifiedUnion Shop

UnionShop

PreferentialUnionShop

ClosedShop

OpenShop

Union Security Open Shop - non union Exclusive Bargaining Rights

The union is the certified/recognized bargaining agent of the bargaining unit.

Membership is strictly voluntary. Only union members must pay dues.

Union Security Agency Shop

The union is the certified/recognized bargaining agent of the bargaining unit.

Membership is still strictly voluntary. Union members must pay dues; nonunion

members of the BU pay equivalent of dues.

Union Security Maintenance of Membership Shop

The union is the certified/recognized bargaining agent of the bargaining unit.

Membership is voluntary in a limited sense. Union members must pay dues; nonunion

members of the BU pay equivalent of dues. However, once a member joins the union they

must remain a member in good standing as a condition of employment

Union Security Modified Union Shop

The union is the certified/recognized bargaining agent of the bargaining unit.

All new hires must join the union old nonunion employees may remain non union.

Union members must pay dues; nonunion members of the BU pay equivalent of dues.

However, once a member joins the union they must remain a member in good standing as a condition of employment.

Union Security Union Shop

The union is the certified/recognized bargaining agent of the bargaining unit.

All employees must join the union. Union members must pay dues. Union membership is a condition of continued

employment. This is not Closed Shop (one must be a union

member before applying for the job) which is illegal under the LMRA.

Union Security Preferential Union Shop

Applicable only to building & construction trade unions (§ 8 (f)).

Allows temporary (7-day) assignment of nonunion workers to the local.

Temporary members must pay dues. Temporary union membership is renewable.

Union Security Within these provisions, union and

management negotiate the time frame under which a new hire must bring HR proof of joining the union. Conventionally 30 to 60 days. Sometimes at the conclusion of the probationary

period. If the employee fails to do so, management

must fire the employee or be found guilty of a ULP.

Individual Security/ Seniority Two types:

Benefit Seniority - benefit entitlements based on seniority (i.e., vacation length).

Competitive Status Seniority – entitlement to bid on promotions, transfers, and avoid layoffs.

Often defines how seniority will be determined : Time in the job/position, Time in the facility, or Time with the company.

Individual Security/ Seniority Superseniority – an artificial employment

seniority system that considers factors over and above length of service. It is used as a means of retaining key employees who might otherwise be laid off. Usually the union negotiates superseniority for

shop stewards and its Executive Council. Superseniority is assigned to the office, not to the

individual. If unions can have it, so can management.

Competitive Status Seniority The formula for layoffs is usually LIFO. Recall/rehiring is usually based on seniority

as well. May contain bumping privileges.

More senior employees may take the positions of less senior employees during layoffs or RIFs provided they are minimally qualified.

Checkoff Clause A.k.a. Dues Checkoff.

Employer agrees to payroll deduction of BU member’s union dues or equivalent.

The advantage is to the union. Without it, shop stewards must collect dues. Members can be disciplined by the union for being

late in paying dues. The union is guaranteed a uniform and consistent cash

flow.

Hours and Overtime Often establishes work schedules and

determines when the work week begins and ends.

Establishes entitlement and/or restrictions for overtime. Bumping privileges Right to refusal. When overtime occurs (anything in excess of

eight hours in a 24 consecutive hour period, e.g.).

Management Prerogatives The following rights should be expressly reserved in

the the Management Rights clause of the CBA: The right to direct work The right to promulgate work rules The right to establish company policies (i.e.,

safety, attendance, pilferage, good order, etc.) The right to establish production levels The right to discipline employees The right to establish employee performance

standards and conduct performance appraisal

Management Prerogatives There should be a general management rights

statement in the Management Rights clause: Those rights not expressly contracted away by a

specific provision of the bargaining agreement are retained by management.

Management Rights If there are foreseeable circumstances in

which supervisory personnel may be needed to perform production work, include it in Management Rights.

Caveat: Unions often insert provisions in CBAs that prevent supervisors from performing any BU work at any time.

Management Rights In the event that there is a conflict between a

provision in the Management Rights Provision and another clause in the CBA, there is a potential grievance (and arbitration)

Other Clauses Conflicting with Management Rights Other clauses in the CBA that may conflict

with, hence diminish management rights: Restrictions on the assignment of personnel

Limitations on assignments outside a worker’s job category

Limitations on assignments outside a worker’s job description

Restrictions on who can work overtime Voluntary v. involuntary overtime Bumping privileges Limitations on total hours per overtime period

Other Clauses Conflicting with Management Rights

Restrictions on promotion policies Seniority considerations Affirmative action Challenges/appeals

Restrictions on pay raises Seniority considerations Incentives, differentials

Restrictions on hiring Job posting

Other Clauses Conflicting with Management Rights

Restrictions on discipline Restrictions on outsourcing

Subcontracting Temporary employees Part-time employees

Restrictions work scheduling Time-off Hours of work

Management Rights

Why clearly delineated management rights are important: They reduce exposure to unfair labor practice

challenges. They reduce exposure to meritorious

grievances. They reduce exposure to arbitration.

Typical Management Rights Clause

The Company acknowledges that it has no natural rights over individual persons within the organization, but it reserves rights to maintain a company those physical assets, property, and rights that are real and lawfully enforceable.

The Company reserves the exclusive right and responsibility to manage the business and to direct the employees who may be subject to this Agreement.

Management reserves, among the other customary rights of management, the sole and exclusive discretion to hire qualified employees and to transfer, assign, deploy and direct their work.

Typical Management Rights Clause

The Company further reserves the right to evaluate the performance of employees to determine their qualification and fitness for continued duty or employment; the right to relieve them from duty; the right to suspend or discharge them for a lawful cause; and the right to layoff employees because of lack of work or for other lawful reasons.

This provision may only be limited by the company’s obligation to bargain in good faith about matters over which it is lawfully required to bargain

No Strike/No Lockout For the duration of the contract both parties

agree to resolve any disagreements arising from the contract according to the contraction administration provisions. Management cannot lockout the union. The union cannot strike (other than a ULP Strike,

any strike would become a Wildcat Strike). This why unions cannot strike during negotiations

until the contract expires.

Discipline and Discharge Most CBAs state that employees may be

discharged only for just cause. Contains the provisions for due process

guarantees. May establish progressive discipline

provisions. Note that union employees enjoy far more

procedural rights than nonunion counterparts. May specify what actions are subject to

discipline.

Discipline and Discharge ULPs claims may arise when:

Management does not consistently impose discipline.

When procedural requirements are not meticulously met.

Reopener Clause Provisions in the CBA specifying the

conditions under which one or either party can reopen for renegotiation the agreement or designated parts of the agreement. Some CBAs contain mutual consent reopeners. May be triggered by certain events which compel

the other party to renegotiate (particular level of the CPI, e.g.)

Zipper Clause A zipper clause may constitute a waiver of the right

to bargain over issues negotiated in or outside the terms of a contract until its expiration.

During the life of the contact, the issue may not be reopened.

"[t]he Parties agree that all negotiable items have been discussed during the negotiations leading to this Agreement, and, therefore, agree that negotiations will not be reopened on any items, whether contained herein or not, during the life of this Agreement, unless by mutual agreement of both Parties."

Contract Term/Duration By convention most are three years.

Usually state in specific dates (i.e., January 1, 2008to December 30, 2011).

If a no strike no lockout clause is in place, no economic strike or lockout can occur until after the CBA expires.

Contract Administration Contains provisions for handling grievances

(how disagreements over the contract’s interpretation will be resolved).

Establishes procedures for filing a grievance. Time frames Points of contact Requirements for formalization

Often establishes procedures for taking issues to rights arbitration.

Effect of Unions on Non Wage Outcomes Hiring

Unions, through the CBA, exert influence on how internal recruiting is conducted.

Promotions Unions use seniority to dilute the use of

performance appraisal in making such decisions. Retirement

Earlier eligibility