TO ADOPT AND AVOID ESICA/CSIA FALL CONFERENCE September 2007 Bob Dunlevey

Dunlevey, Mahan & Furry 1

TO ADOPT AND AVOID

ESICA/CSIA FALL CONFERENCESeptember 2007

Bob DunleveyBoard Certified Specialist in Labor and Employment Law

CONTRACT CLAUSES


TODAY’S TOPICS Bargaining topics previously covered

a quick review How to write sound contract

language Clauses to avoid/adopt Merger agreements Labor-management cooperative trust

and more …


MULTI-EMPLOYER BARGAINING

CSIA/ESICA FALL CONFERENCESeptember 2005

Bob [email protected]

AND

Section 9(a)


Bargaining relationships Methods of determining representation

under 9(a) Forms of negotiations Assignment of bargaining rights 8(f) Deklewa Pros/cons of multi-employer bargaining Pros/cons of single employer bargaining Pros/cons of coordinated bargaining Reasons for multi-employer withdrawal


BARGAINING STRATEGIES

ESICA SPRING CONFERENCEMay 2007

Bob DunleveyBoard Certified Specialist in Labor and Employment Law

EFFECTIVE COLLECTIVE


EFFECTIVE COLLECTIVE BARGAINING Understanding the Bargaining Relationship Effective Preparation for Negotiations

Selecting the Form of BargainingEstablishing your Labor Relations PolicyGathering Background InformationInput from the Management TeamPreparing the Chief Negotiator’s “Bargaining Book”The Position StatementThe Model AgreementConditioning the Bargaining UnitConsult CounselRecent Developments/Trends/Statistics


EFFECTIVE COLLECTIVE BARGAINING The Law of Collective Bargaining

The Obligation to BargainProcedural Requirements for BargainingMidterm Changes in Contract TermsSubjects of BargainingBad Faith Bargaining MisconductTerminating the Bargaining Relationship

Bargaining Table Conduct


TODAY’S TOPICS Bargaining topics previously covered

a quick review How to write sound contract

language Clauses to avoid/adopt Merger agreements Labor-management cooperative trust

and more …


HINTS FOR DRAFTING Write with clarity and precision so that all

who read will understand

Be uniform in the terms used Always shoulder the burden of drafting

proposals, alternate language, and final agreements

The Employers further agree that on all operations outside of the chartered territory of the Union they will abide by the rates of pay, rules, and working conditions established by collective bargaining agreements between the local insulation contractors and the local union in the jurisdiction.


HINTS … Present all proposals in writing Utilize a logical sequence for your

agreement, starting with the recognition of the union and ending with the duration and termination provisions

Use descriptive headings and number each section and subsection – include a table of contents

ARTICLE IIIWORK REQUIREMENTS

Section 1: Work Week and Work Day


HINTS … Define frequently used terms and concepts

and always use the same phrasing when referring to the same concept

Be specific when referring to other sections of the agreement – identify the actual section by title and numerical caption

The Contractor and the Union shall mutually agree that on any project that dictates the starting and quitting times may be changed for all or any of a particular job providing the work is maintenance type work on existing industrial structures. Except for approved project agreements this section does not apply for independent facilities.


HINTS … Do not include “bleeding heart”

clauses on philosophy which an arbitrator could seize upon to impose equity as opposed to following the contractThe Employer is privileged to send the Mechanic (job foreman) as

outlined above, but cannot bring a Mechanic (job foreman) into an area …

In recognition of their commitment to the highest standards of their industry, the parties hereby adopt and incorporate the terms of the Professional Craftsman Code of Conduct.


HINTS … Avoid extra words which mean

nothing

Have model clauses available Have a bargaining manual with you Know the law of bargaining or have a

consultant available

It is mutually agreed, understood and acknowledged that the Union is the sole and exclusive bargaining representative of Employees.


HINTS … Be mindful of bargaining trends Second guess your language

before proposing Be patient when drafting! Don’t leave the table without a

signed agreement Proofread final contract


CLAUSES TO AVOID Wage deferral “Agree-to-Agree”

Just cause for termination

If the Employer so elects, he may work shift work at a rate negotiated in the applicable agreements. If the agreements do not contain rates pertaining to shift work, the parties shall negotiate such shift rates at the pre-job conference.

The Employer expressly adopts and consents to any Delinquency Collection and Enforcement Policy, as may be adopted from time to time by the Trustees, including liquidated damages.


AVOID … Industry funds – restrictions on

expenditures

Association agrees to promote programs of industry education, training, negotiation and administration of collective bargaining agreement, research and promotion, such programs serving to expand the market for the services of the sheet metal industry, improve the technical and business skills of employers, stabilize and improve Employer-Union relations, and promote, support, and improve the employment opportunities for employees. No part of these payments to the Association, however, shall be used for any purpose except as expressly specified above.


AVOID … Anti-dual shop

If the Employer performs on-site construction work of the type covered by this Agreement, under its own name or the name of another, as a corporation, company, partnership, or other business entity, including a joint venture, wherein the Employer, through its officers, directors, partners, owners, or stockholders exercises directly or indirectly (including but not limited to management, control, or majority ownership through family members), management, control, or majority ownership, the terms and conditions of this Agreement shall be applicable to all such work.


AVOID … Featherbedding

Political action committee check-off

Work preservation clauses

The Employer agrees that during periods of unemployment unnecessary or nonessential overtime will not be worked.

To protect and preserve for the Building Trades employees covered by this Agreement all work they have performed and all work covered by the Agreement, and to prevent any device or subterfuge to avoid the protection and preservation of such work, it is agreed that all of the work requiring sketching and fabrication shall be performed by employees hereunder, either in the shop or on the jobsite within the geographical jurisdiction of [Local 38].


AVOID … Deferral to union to interpret

meaning

Notification of union by tradesperson

Interpretation of Sections A and B of this Article to be made by the Union Business Manager. If the Contractor is unable to agree with the Union’s interpretation, then the matter is to be decided by the Joint Trade Board.

Then the Apprentice may finish out that regular work day only, performing whatever work he is capable of doing at Mechanics rate of pay and only after notifying the Business Manager within that day of commencing said work.

Should material transporting be required outside of the regular work day or work week, prior notification must be given to the Business Manager and such work shall be paid for on an overtime basis as described in Article 3, within.


AVOID … Incorporation of codes of

workmanshipAll materials shall be applied as prescribed in the Code of Workmanship unless a set of specifications or work orders are given to the job leader.


AVOID … International Association’s

Professional Craftsman Code of Conduct implementation program to promote jobsite excellence and customer satisfaction

Q.C. CraftsmanThe QCC shall have full responsibility for communicating the Professional Craftsman Code of Conduct to all members, and insuring all members are fully meeting their responsibility to our Professional Craftsman Code of Conduct.


AVOID … Incorporation of constitutions/by-

laws Incorporation of state and federal

laws and regulations Insurance benefits defined Letters of intent Bargaining re-openers Interest arbitration


CLAUSES TO INCLUDE

Most favored nationThe union agrees that should it or its international union and/or its affiliates suffer, permit, or enter into a contract, agreement, understanding, or condition with any employer or group of employers in the jurisdiction which contract, agreement, understanding, or condition is more favorable to that employer or group of employers than the terms herein set forth, such more favorable terms shall immediately be deemed to have been incorporated into this agreement and applied to employers doing that type or similar work as the employer or group of employers to whom the more favorable terms have been granted, directly or indirectly. The union agrees to furnish immediately to the employer a copy of any agreement containing any such more favorable conditions.


INCLUDE …

Comprehensive management rights


INCLUDE …

Market recovery Hiring hall

Versus referral hall Rejection of applicants

The Employer retains the right to reject any employees referred by the Union; however, such rejection shall be based solely upon workmanship and/or qualification, and in no way be based upon union membership.


INCLUDE …

Hiring hall contd. Discharge without just cause Key man call

The Employer shall have the right to request a minimum number of key employees who may consist of a general foreman and leadman. In addition, the Employer shall have the right to recall from the out-of-work list any journeyman, so long as such journeyman was employed by the Employer within the past 12 months. In addition, the Employer may request in writing from the out-of-work list employees with specific skills, qualifications and abilities.


INCLUDE … Hiring hall contd.

Minimum training, experience, longevity

Right to hire tradesmen (trainees) from street

Indemnification Work rules (right to promulgate)


INCLUDE … Helpers/sub-journeymen/trainees

Section 1. Classified workers may be employed in the following ratio and the Employer may use a pre-apprentice instead, as long as the overall workforce ratios of apprentices to classified workers/pre-apprentices remain the same. If an apprentice is not available for referral as per Article XI, Section 4 of this Agreement, the Employer may hire a classified worker that will apply to the ratio as defined by this contract in the same manner as an apprentice would apply; nor will it be mandatory that an unemployed apprentice displace this classified worker:

A. One classified worker for any Employer who employs an apprentice;

B. Two classified workers for any Employer who employs at least three apprentices;

C. Thereafter, the ratio will be one classified worker for each additional three apprentices employed.

Section 2. Classified workers may perform any work covered by Article I of which they are capable and will work under the general direction of a journeyman.


INCLUDE … Qualifications for receiving holiday

pay Direct deposit Payment of travel expenses only if

expended and receipt provided Initial safety training at employee’s

expense


INCLUDE … Defined contribution pension

No increase in pay or deferral of benefits if any unfunded vested liability

Automation/restrictions

In the event the Fund requires any increase in contributions beyond the current level, contractor shall sustain nothing more in cost but instead additional contributions shall come from …


INCLUDE … Zipper clause

This contract sets forth the entire understanding and agreement of the parties and may be modified only by written agreement of the parties. This agreement supersedes all prior agreements, commitments, and practices, whether oral or written. The parties each voluntarily and unqualifiedly waive the right to bargain collectively with respect to any subject or matter not specifically referred to or covered in this agreement for the duration of this contract, unless mutually agreed otherwise. Nothing in this contract shall be construed as requiring either party to do or refrain from doing anything not explicitly and expressly set forth in this contract, nor shall either party be deemed to have agreed or promised to do or refrain from doing anything unless this contract explicitly and expressly sets forth such agreement or promise.


MERGER AGREEMENTS Trend Obligation to bargain Complexities Related agreements/issues

Trust funds Appointment of Trustees

Apprenticeship program Industry fund Market recovery fund


LABOR-MANAGEMENT COOPERATIVE TRUST National Union Insulation

Contractors Alliance 2002 What it is Requires re-opening Its future

34


As an afterthought to the preceding paragraphs, it is sincerely recommended and concluded that those parties not signatory to this Agreement will endeavor to abide by this Agreement and/or the legal rules and bylaws of the parties signatory to this Agreement.

ARTICLE I

JURISDICTIONAL AREA

BRICKLAYERS LOCAL NO. 15 AREA 1: This Agreement shall be in effect in the following counties: Barbour, Doddridge, Gilmer


VISIT OUR WEBSITE FOR MORE EMPLOYMENT LAW

INFORMATION

www.dmfdayton.com

EMPLOYMENT LAW WORKERS’ COMPENSATION OSHA WAGE-HOUR NLRB DISCRIMINATION COLLECTIVE

BARGAINING EMPLOYMENT LITIGATION

Aggressive, Responsive, Cost Effective Representation

Documents

TO ADOPT AND AVOID ESICA/CSIA FALL CONFERENCE September 2007 Bob Dunlevey