Mgmt 583
Chapter 10: Non Wage Issues in
Bargaining
Fall 2008
Non Wage Components of the CBA
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Union security (level of compulsory membership)
Check off clause
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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
Exclusive
Bargaining
Rights
Open
Shop
Maintenance of
Membership
Shop
Agency
Shop
Modified
Union
Shop
Union
Shop
Closed
Shop
Preferential
Union
Shop
Union Security
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Open Shop - non union
Exclusive Bargaining Rights
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The union is the certified/recognized bargaining
agent of the bargaining unit.
Membership is strictly voluntary.
Only union members must pay dues.
Union Security
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Agency Shop
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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
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Maintenance of Membership Shop
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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
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Modified Union Shop
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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
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Union Shop
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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
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Preferential Union Shop
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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
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Within these provisions, union and
management negotiate the time frame under
which a new hire must bring HR proof of
joining the union.
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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
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Two types:
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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 :
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Time in the job/position,
Time in the facility, or
Time with the company.
Individual Security/ Seniority
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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.
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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
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The formula for layoffs is usually LIFO.
Recall/rehiring is usually based on seniority
as well.
May contain bumping privileges.
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More senior employees may take the positions of
less senior employees during layoffs or RIFs
provided they are minimally qualified.
Checkoff Clause
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A.k.a. Dues Checkoff.
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Employer agrees to payroll deduction of BU
member’s union dues or equivalent.
The advantage is to the union.
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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
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Often establishes work schedules and
determines when the work week begins and
ends.
Establishes entitlement and/or restrictions for
overtime.
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Bumping privileges
Right to refusal.
When overtime occurs (anything in excess of
eight hours in a 24 consecutive hour period, e.g.).
Management Prerogatives
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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
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There should be a general management rights
statement in the Management Rights clause:
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Those rights not expressly contracted away by a
specific provision of the bargaining agreement are
retained by management.
Management Rights
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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
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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
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Other clauses in the CBA that may conflict
with, hence diminish management rights:
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Restrictions on the assignment of personnel
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Limitations on assignments outside a worker’s job
category
Limitations on assignments outside a worker’s job
description
Restrictions on who can work overtime
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Voluntary v. involuntary overtime
Bumping privileges
Limitations on total hours per overtime period
Other Clauses Conflicting with
Management Rights
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Restrictions on promotion policies
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Restrictions on pay raises
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Seniority considerations
Affirmative action
Challenges/appeals
Seniority considerations
Incentives, differentials
Restrictions on hiring
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Job posting
Other Clauses Conflicting with
Management Rights
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Restrictions on discipline
Restrictions on outsourcing
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Subcontracting
Temporary employees
Part-time employees
Restrictions work scheduling
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Time-off
Hours of work
Management Rights
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Why clearly delineated management rights
are important:
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They reduce exposure to unfair labor practice
challenges.
They reduce exposure to meritorious
grievances.
They reduce exposure to arbitration.
Typical Management Rights
Clause
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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
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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
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For the duration of the contract both parties
agree to resolve any disagreements arising
from the contract according to the contraction
administration provisions.
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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
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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
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ULPs claims may arise when:
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Management does not consistently impose
discipline.
When procedural requirements are not
meticulously met.
Reopener Clause
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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.
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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
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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
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By convention most are three years.
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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
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Contains provisions for handling grievances
(how disagreements over the contract’s
interpretation will be resolved).
Establishes procedures for filing a grievance.
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Time frames
Points of contact
Requirements for formalization
Often establishes procedures for taking issues
to rights arbitration.
Effect of Unions on Non Wage
Outcomes
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Hiring
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Promotions
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Unions, through the CBA, exert influence on how
internal recruiting is conducted.
Unions use seniority to dilute the use of
performance appraisal in making such decisions.
Retirement
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Earlier eligibility