International Public Management Association for Human Resource IMPA

International Public Management Association for Human Resource IMPA - HR The Good, the Bad and the Ugly: Techniques for analyzing and writing contract language. Gary Moss Deverie J. Christensen Jackson Lewis LLP- Las Vegas Jerry Keating IPMA-CP, Assistant General Manager/Chief Human Resources Officer- Regional Transportation Commission of So. Nevada

International Public Management Association for Human Resource IMPA- HR GOOD: “will be discharged” UGLY: Results of Bad BAD: “may be discharge d”

Drafting Collective Bargaining Agreement Language Why is well drafted contract language important? • Dictates how the parties conduct themselves on a daily basis. • Important that management, the Union and the bargaining unit employees understand this significant part of the employment relationship. • The language oftentimes is relied upon by third parties, such as trust funds, administrative agencies. • The language will be subject to review and interpretation by an arbitrator.

Drafting Collective Bargaining Agreement Language – con’t • Circumstances sometimes make it difficult to obtain the language you want. • Bargaining dynamics. • Union negotiators often are uncomfortable with haggling over wording. • You are often dealing with proposals initiated by the Union and you must deal with their language. • It is well worth the effort to obtain the best possible language.

Improper organization, word usage and grammar can make it difficult to determine what the parties agreed to. EXAMPLES Confessions or Statements. No employee shall be required, requested or coerced by the Employer to sign a confession or statement concerning the employee’s alleged irregularities in the handling of money, merchandise or supplies unless a Union representative is first given an opportunity to be present. Holiday Pay. (a) Except as provided otherwise in paragraph (b) of this section, employees who work on any of the holidays set forth in Section 12. 01 shall be paid one and one-half (11/2 x) their straight-time hourly rate of pay for such work.

MANAGEMENT RIGHTS

BAD Management Rights Section 1. All of the rights, duties and prerogatives of the Company to manage, control and direct its business, operations, and activities are vested in and retained by the Company, including, but not limited to, the assignment and direction of its employees.

GOOD Article 02. 00 – Management Rights 02. 01. Except as expressly modified or restricted by a specific provision of this Collective Bargaining Agreement, all statutory and inherent managerial rights, prerogatives, and functions are retained and vested exclusively with the Company, whether heretofore or hereafter exercised and regardless of the frequency or infrequency of the exercise of those rights. These rights include, but are not limited to, the right to reprimand, suspend, discharge, or otherwise discipline employees for just cause; to determine the number of employees to be employed; to hire employees, determine

GOOD relocate the Company’s operations or any part thereof; to expand, reduce, alter, combine, transfer, assign, or cease any job, department, operations or service; to introduce new or improved methods of operation, equipment, or modes of transportation; to control and regulate the use of machinery, facilities, equipment, and other property; to issue, amend, and revise, policies, procedures, rules, regulations and practices; and take whatever action is either necessary or advisable to determine, manage, and fulfill the mission of the Company and to direct the Company’s employees.

DISCUSSION UGLY: The bad language used to be “good. ” Now it is bad because there is no definition or description of what those “rights, duties and prerogatives” are. The good language recognizes the reality that today many arbitrators and courts no longer accept the premise that management can do anything that is not specifically restricted by the provisions of the collective bargaining agreement. The good language is an example of an expansively worded clause that attempts to touch on virtually every subject that might be important for management to control. Needs to be adapted to your specific operation.

SUBCONTRACTING

BAD Article 27: Subcontracting and Subleasing 27. 01. It is recognized that the Employer and the Union have a common interest in protecting work opportunities for all employees covered by this Agreement and employed on a regular basis. Therefore, no work customarily performed by employees covered by this Agreement shall be performed under any sublease, subcontract, or other agreement unless the terms of any lease, contract or other agreement specifically state that (a) all such work shall be performed only by members of the bargaining unit covered by this Agreement, and (b) the Employer shall at all times hold and exercise full control of the terms and conditions of employment of all such employees pursuant to the terms of

GOOD Section 2. Nothing in this Agreement shall preclude the Company, to the extent permitted by law, from subcontracting with other providers or individuals to perform duties similar to or identical with the duties of employees working under this Agreement.

DISCUSSION UGLY: The bad language means, in essence, that all work within the scope of the agreement must always be done by employees who work under the same terms and conditions as bargaining unit employees. Thus, there is no benefit to subcontracting. Good language is very strong. • Allows employer to have much work that would otherwise be done subject to provisions of CBA performed by an outside company where labor

BARGAINING UNIT WORK

BAD Section 1. No manager, supervisor or excluded employee shall perform any work that is customarily performed by members of the bargaining unit.

GOOD Article 06. 00 – Non -Bargaining

DISCUSSION UGLY: The bad language means that you have no viable options when an unusual number of absences occur or an unusual operational issue arises that requires special skill or knowledge. Like the ability to subcontract, the ability to assign “bargaining unit work” to other managerial, supervisory and employees who are not in the bargaining unit is an important way to insure that operations are performed on an efficient, economical and timely basis. No union will agree that there are no restrictions on your right to use non-bargaining unit employees to do the work that would otherwise be performed by employees covered by the CBA, but the examples in the “Good” language are very useful to management.

DEFINITION OF GRIEVANCE

BAD Article 19: Grievances and Arbitration 19. 01. Definition. For purposes of this Agreement, a grievance is a dispute or difference of opinion between the Union and the Employer involving the meaning, interpretation, application to employees covered by this Agreement, or alleged violation of any provision of this Agreement.

GOOD Article 15 – Grievance and Arbitration Procedure Section 1. A grievance shall be limited and only defined as a dispute regarding the interpretation and/or application of the provisions of this Agreement arising during the term of this Agreement filed by the Union signatory to this Agreement or by an employee covered by this Agreement alleging a violation of terms and provisions of this Agreement. However, disputes specifically excluded in other Articles of this Agreement from the Grievance and Arbitration procedure shall not be construed as within the definition set forth above and shall not be handled in accordance with this procedure. It is agreed that such excluded disputes are not grievable or arbitrable under the terms of this Article or under this contract. Section 2. Procedure. All grievances covered by this Article shall be handled exclusively in the following manner: (a) A grievance must be reduced to writing, citing the specific Article and Section of this Agreement alleged to have been violated. A

DISCUSSION For a number of reasons, unions are now much more prone to attempt to use the grievance and arbitration provisions of the CBA to challenge actions taken by management and to attempt to achieve through “the back door” what they did not achieve in bargaining. Therefore, it is important to limit their ability to do that through a narrow definition of the term “grievance. ”

DISCUSSION UGLY: The “Bad” language is a common definition, but it allows almost any type of claim to be asserted as a grievance. There does not even have to be an employee who contends that he/she has been adversely affected by a management action. The “Good” language places the onus on the union or an employee to specify what action by management is being challenged and what specific provision of the CBA that

LIMITATIONS ON AUTHORITY OF ARBITRATOR

BAD The award of the arbitrator shall be final and binding on the parties. The arbitrator shall have no authority to amend, modify, nullify or add to the provisions of this Agreement.

GOOD Section 5. The arbitrator shall not have the authority to modify, amend, alter, add to or subtract from any provision of this Agreement. The Union shall have the right to grieve and the arbitrator shall have the right to rule on any grievance within the scope of Section 1 as long as the grievance is filed and processed within the time limits of this Article, even if the grievance is filed after the termination date of this Agreement. However, the Union shall not have the authority to grieve and the arbitrator shall not have the authority to rule on any matter, whether or not it meets the definition of a grievance under Section 1, which arises after the termination date of this Agreement, or which is not filed or processed within the time limits specified in this Article. Any issue of procedural arbitrability will be decided by the same arbitrator selected to handle the case. Any issue of substantive arbitrability shall be initially decided by a court of competent jurisdiction. Section 6. In any arbitration hearing concerning the discipline and/or discharge of an employee for any infraction agreed by the parties to be just cause for discharge in Section 1(a) of Article 20, the arbitrator’s sole authority shall be to determine if the employee committed the act or infraction alleged by the Employer. The arbitrator shall have no authority to modify the disciplinary penalty imposed by the Employer in such cases if the arbitrator finds the employee did commit the act

DISCUSSION UGLY: Many current arbitrators believe that when a dispute is submitted, they are free to decide the case according to their view of what is the “just” result; they are not limited to the actual language in the CBA; and that they can impose their own assumptions as to what the parties intended in using certain language. This problem is exacerbated by a broad definition of “grievance. ” The good language specifically narrows the arbitrator’s authority. The “Good” is an excellent example of how to constrain an arbitrator.

PAST PRACTICE

BAD Sole Agreement. This Agreement contains all covenants, stipulations and provisions agreed upon by the parties hereto.

GOOD Article 22 – Sole and Entire Agreement Section 1. This Agreement constitutes the sole and entire existing Agreement between the parties. This Agreement completely and correctly expresses all of the rights, obligations and restrictions retained by or imposed upon the parties to this Agreement. Section 2. All prior agreements, conditions, practices, customs, usages and obligations are completely superseded and revoked insofar as any such prior agreement, practice, custom, usage or obligation might have given rise to any enforceable right. Section 3. Any supplements, amendments or modifications to this Agreement which are mutually agreed

DISCUSSION UGLY: “Past Practice” is another one of the union’s “weapons” to circumvent the authority of management to exercise its management’s rights. Very misunderstood concept. There are several elements that must be shown for a past practice to be binding. Unions largely ignore these when making a past practice claim. Many arbitrators do not understand the concept. To combat this, there should be language in the CBA that nullifies any practices that occurred before the effective date of the new agreement.

WAGE RATE PROVISIONS

BAD Classification and Wage Rates 15. 01. Classifications and Wage Rates. The following job classifications and corresponding hourly wage rates are hereby established:

GOOD 5. 06. Superior Workers. The wage scales in this Agreement are minimum scales and do not prohibit the Employer from paying higher wages. It is specifically agreed that employees compensated at said higher wage rates may be returned to the scales published herein at the sole discretion of the Employer. Employees paid Superior Workmen rates shall have their wages increased by amounts of not less than the increases in the minimum wage scales as specified in Exhibit 1, attached to and make part of this Agreement, for the classifications in which they are employed.

DISCUSSION UGLY: The bad language provides the exact pay rate that any employee in the particular classification must be paid. This prevents any individual or group from receiving a higher rate without union approval. Hinders your ability to reward higher performing employees or address hiring problems. The good language gives you discretion to pay wages above the contractually required rate.

MEDICAL BENEFITS

BAD Bargaining unit employees shall continue to participate in the Company provided health insurance plan and 401(k) plan.

GOOD Employer’s Right to Modify Benefits. In any provision of this Agreement where employees covered by the Agreement are provided the same benefits as other non-exempt, nonrepresented employees of the Employer, the Employer has the absolute right to improve, change, or eliminate any of the terms or conditions under which benefits are provided, the continuation, modification, or imposition of required employee’s contributions to any such plan, the provider, carrier, or other business entity through which any such plans are made available to employees, the elimination of such plans or the implementation of a new or different plan. The Union hereby expressly waives any such rights it might otherwise have to bargaining about such changes or modifications, provided that the Employer has notified the

DISCUSSION UGLY: The “Bad” language leaves open the argument that the Employer is precluded by law from making any unilateral changes to employee benefits that are provided for in the CBA. These are usually benefits that are also available to unrepresented employees. In order to insure that the Employer can change those plans for those employees, language similar to the “Good” should be included.

QUESTIONS