EFFECTIVE COLLECTIVE BARGAINING STRATEGIES
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1 EFFECTIVE COLLECTIVE BARGAINING STRATEGIES ESICA SPRING CONFERENCE May 2007 Bob Dunlevey Board Certified Specialist in Labor and Employment Law Dunlevey, Mahan & Furry 1
2 TODAY Understanding the Bargaining Relationship Effective Preparation for Negotiations Selecting the Form of Bargaining Establishing your Labor Relations Policy Gathering Background Information Input from the Management Team Preparing the Chief Negotiator s Bargaining Book The Position Statement The Model Agreement Conditioning the Bargaining Unit Consult Counsel Recent Developments/Trends/Statistics Dunlevey, Mahan & Furry 2
3 TODAY The Law of Collective Bargaining The Obligation to Bargain Procedural Requirements for Bargaining Midterm Changes in Contract Terms Subjects of Bargaining Bad Faith Bargaining Misconduct Terminating the Bargaining Relationship Specific Contract Clauses to Adopt and Avoid Hints for Negotiating, Drafting, and Organizing Bargaining Table Conduct Dunlevey, Mahan & Furry 3
4 UNDERSTANDING THE BARGAINING RELATIONSHIP AND YOUR CONTRACT Dunlevey, Mahan & Furry 4
5 UNION VS. MANAGEMENT? Dunlevey, Mahan & Furry 5
6 EFFECTIVE PREPARATION FOR NEGOTIATIONS Selecting the Form of Bargaining Establishing your Labor Relations Policy Anticipate union demands Consider business forecasts Identify needed relief areas Establish end position Determine strike issues Write out goals Dunlevey, Mahan & Furry 6
7 EFFECTIVE PREPARATION FOR NEGOTIATIONS... Selecting a Bargaining Team Gathering Background Information Input from Management Team Preparing the Chief Negotiator s Bargaining Book The Position Statement The Model Agreement Dunlevey, Mahan & Furry 7
8 EFFECTIVE PREPARATION FOR NEGOTIATIONS Conditioning the Bargaining Unit Consult Counsel Bargaining Logistics Recent Developments/Trends/Statistics Dunlevey, Mahan & Furry 8
9 EFFECTIVE PREPARATION Consider your form of bargaining ASAP because getting into and out of multiemployer groups take time Have you previously assigned bargaining rights to an association? What are the terms of any past assignment? Are you bound by whatever they negotiate? Have you signed letters of assent in foreign jurisdictions which need to be voided out? Dunlevey, Mahan & Furry 9
10 SELECT YOUR FORM OF BARGAINING Single Employer One contractor bargaining a contract with each union Me too agreements letters of assent A and B Multi-Employer Consensual Assignment of bargaining rights Association based Dunlevey, Mahan & Furry 10
11 FORM Coordinated Bargaining Individual contracts negotiated at same time and/or using same spokesperson Benefits of both single and multi-employer Carefully orchestrated Dunlevey, Mahan & Furry 11
12 PROS/CONS OF MULTI- EMPLOYER BARGAINING Enhanced bargaining powers strength in numbers Avoids union whip-saw Lesser expense More expertise Exchange of information Parody on labor costs for competitors Influence over industry functions Selection of contractors representing trust funds Dunlevey, Mahan & Furry 12
13 PROS/CONS OF MULTI- EMPLOYER BARGAINING Selection of representatives for local grievance committees Union more willing to deal with identifiable group No stronger than weakest link Compromise of individual positions and ability to orchestrate individual bargaining strategies Forecloses Deklewa May foreclose specialized contract light commercial Dunlevey, Mahan & Furry 13
14 PROS/CONS OF SINGLE EMPLOYER BARGAINING Orchestrates own bargaining strategies Negotiates individually desired clauses Permits Deklewa Possibly enhances union concessions to avoid departure Expensive Time consuming Disparity of expertise Dunlevey, Mahan & Furry 14
15 PROS/CONS OF COORDINATED BARGAINING Attributes of multi-employer but risk of NLRB finding such Dunlevey, Mahan & Furry 15
16 ASSIGNMENT OF BARGAINING RIGHTS Pledge to take united and joint action upon group demand Agreement not to sign any labor agreement not approved by multi-employer group Provisions prohibiting resignation during the term of the labor agreement Provisions for enforcement Dunlevey, Mahan & Furry 16
17 ASSIGNMENT OF BARGAINING RIGHTS Strict assignments promising no interim/retro agreements Lockout by all in event of strike Assignment through Association By- Laws Dunlevey, Mahan & Furry 17
18 EFFECTIVE PREPARATION Do you know the deadline for giving contractual and legal notice to the union and FMCS? Mark the deadlines on your calendar now after checking your contract expiration clause give both notices at the same time Dunlevey, Mahan & Furry 18
19 EFFECTIVE PREPARATION Do you have a NLRA Section 8(f) prehire bargaining relationship or a permanent Section 9 relationship? If it is a pre-hire agreement you may wish to consider not bargaining at all How has the current contract treated you? Does it need some changes? Dunlevey, Mahan & Furry 19
20 LEGAL RELATIONSHIPS Section 8(f) pre-hire No requirement for majority status No requirement for any employees No requirement to consult employees No bargaining obligation No duty to observe CBA until signed Free to sever relationship No election petition bar No duty to bargain upon CBA expiration Section 9(a) Majority status required More than one employee Employer may not pick union Duty to bargain in good faith before agreement reached Duty to bargain for new agreement Exists until decertification Contract/certification bar Dunlevey, Mahan & Furry 20
21 EFFECTIVE PREPARATION Have you gathered some current trade journals and other types of publication articles related to your industry to support the arguments you make at the bargaining table in support of the changes in wages and terms you are requesting? Have you developed the company s position? Have you picked the right team to help you bargain your contract? Dunlevey, Mahan & Furry 21
22 EFFECTIVE PREPARATION What is your current business status? Does it demand some major changes in your bargaining philosophy? Can you afford a strike even for a week? The end position Can you afford to give in to the union s demands one more time without causing serious harm to your company? Dunlevey, Mahan & Furry 22
23 EFFECTIVE PREPARATION Have you lost your competitiveness because of certain provisions, such as daily overtime? Benefits on hours paid? Scrutinize the contract closely with your key staff and then formulate proposals Dunlevey, Mahan & Furry 23
24 EFFECTIVE PREPARATION Are there some significant changes anticipated for your business in the next two or three years which require changes to the bargaining agreement sale, merger or expansion? Have there been grievances and arbitrations over contract disputes which need to be avoided in the next contract term by making language changes? Dunlevey, Mahan & Furry 24
25 EFFECTIVE PREPARATION Do you have effective work rules? Do you negotiate the rules or did you reserve the right to make and use work rules through your managements rights clause? Model Clauses/Agreements Educating/Conditioning Employees Your Labor Attorney who? Dunlevey, Mahan & Furry 25
26 CONTRACT NEGOTIATIONS Logistics Security Communications Conduct at Table The Ritual Activities away from Table Dunlevey, Mahan & Furry 26
27 THE LAW OF COLLECTIVE BARGAINING The Obligation to Bargain Procedural Requirements for Bargaining Midterm Changes in Contract Terms Subjects of Bargaining Bad Faith Bargaining Misconduct Waiver of Bargaining Rights Terminating the Bargaining Relationship Dunlevey, Mahan & Furry 27
28 HINTS FOR NEGOTIATING, DRAFTING AND ORGANIZING Bargaining Techniques Bargaining Strategies Pre-drafting Proposals #1, #2, #3 Mediator s Role Side Bar Negotiations Dunlevey, Mahan & Furry 28
29 CLAUSES TO ADOPT AND AVOID Preamble The Management Rights Clause Wage Deferral Americans with Disabilities Act Grievance Procedure Just Cause for Termination Direct Deposit Helpers Dunlevey, Mahan & Furry 29
30 Most Favored Nation Automation/Restrictions Work Rules Compensation for Hours Worked Insurance The Zipper Clause Industry Fund Code of Workmanship/Constitution Market Recovery Dunlevey, Mahan & Furry 30
31 Dunlevey, Mahan & Furry 31
32 VISIT OUR WEBSITE FOR MORE EMPLOYMENT LAW INFORMATION EMPLOYMENT LAW WORKERS COMPENSATION OSHA WAGE-HOUR NLRB DISCRIMINATION COLLECTIVE BARGAINING EMPLOYMENT LITIGATION Aggressive, Responsive, Cost Effective Representation Dunlevey, Mahan & Furry 32
33 Dunlevey, Mahan & Furry 33
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