Anatomy of a CBA
January 20, 2015
Presented by:
Sarah Levitan Kaatz
What’s Ahead…
Often Neglected and Ignored
Just BeClause…
The Vital Organs
Spare Parts
What Must Be Negotiated?
• Government Code section 3543.2 (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 it’s 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. 1504.)
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, 2016. The decision should come out sometime in June,
2016.
– 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 Union’s 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 employee’s 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 employeremployee relations of bargaining about the action in question.
(Claremont Police Officers Association v. City of Claremont (2006) 39 Cal.4th 623; Building
Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651.)
Management Rights- Example
• Principal required teachers provide weekly lesson plans, biweekly 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. 2057.)
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 isn’t 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.
24444)
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. 1079.)
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 nostrike 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 arbitrator’s 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. 2423-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
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
• What’s 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 44977.5)
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 CBA’s never die.
• Surgical correction is the only option.
Questions
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 clientservices@lozanosmith.com or call (559) 431-5600.
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