The Collective Bargaining Agreement Commentary (Text Option)

Introduction

Today we'll be discussing what is the heart of the relationship between the employer and the union, and that is the labor agreement. Anytime an employee or a union has an issue with an action taken by the employer, their first move is to consult the contract. The contract governs the relationship between the employer and the union. A contract's is negotiated by both parties and is mutually agreed to. Parties are saying through that contract that this is our relationship, these are the terms that will govern our relationship. So the first line of defense that an employer takes to a union challenge is to consult the contract. And the first line of offense that a union will take to challenge an employer's action is the terms of the contract.

So it's important to understand what makes up the contract, what makes up to what we more broadly refer to as the labor agreement. There are four components to the labor agreement, and the first, as I mentioned, is the collective bargaining agreement, the contract. The written document produced through negotiations between the employer and the union. In some situations, that contract may be imposed on the parties by a third party neutral through interest arbitration, a process that we'll discuss at another time.

But the contract, again, is between the union and the employer. It's not between an individual employee and the employer. It's between the union and the employer, and the employees are the third party beneficiaries of that contract. It covers their wages, their hours, their terms and conditions of employment.

There are several sections of the collective bargaining agreement that really make up the heart of the agreement. Of course, there's economic terms. There's wages, there's hours of work, scheduling, health and welfare benefits, pension benefits, sick days, vacation days, personal days. Those kind of economic issues are in each and every contract, and they're often specific to the industry in which the contract is negotiated. But there are some provisions in the contract that, again, form the heart of the contract and govern the relationship between the employer in the union.

And there's four sections of the contract that I want to direct your attention to.

Union Recognition Clause

The union recognition clause identifies the employees covered by the collective bargaining agreement and often sites their job classifications that was probably included in the National Labor Relations Board or the State Labor Relations Board certification of the union. A union recognition clause will often read, all full time and regular part time production and maintenance employees employed by ABC Corporation. So it'll specify which classifications are covered by the contract.

You have to realize an employer workplace may include many different types of employees. There are management employees. There are administrative employees. Administrative and clerical employees. There may be truck drivers. There may be production and maintenance employees if we're talking a factory setting. The contract will specify what group of employees are covered by the contract. The union recognition clause is the place to look to see who's covered by the contract.

It will also tell you who's not covered by the contract. Sometimes there are express exclusions. The recognition clause may read, all full time regular and part time production and maintenance employees, excluding truck drivers, clerical employees, supervisors, seasonal employees, and so on and so forth. It may specify those classifications that are excluded. Other times it just simply omits the employees that are not included in the unit. If it says, again, all full time and regular part time production and maintenance employees, and says nothing further, we can assume that seasonal employees, for example, are not covered by the collective bargaining agreement.

So when you pick up a contract, and want to know what employees in the employer's workplace are covered, go to the union recognition clause.

Grievance Procedure

Another section of the contract which forms the heart of the relationship between the employer and the union is the grievance procedure. And that's the section that serves as the basis of this course, obviously. But there's a purpose to have a grievance procedure in the contract, and that purpose is fivefold. It's to provide a systematic way to resolve problems. It provides a method for interpreting the contract. It's an avenue to keep the lines of communication open between the parties during the life of the agreement. And it protects the integrity of the contractual agreement. And finally, it provides individual union members with the ability to appeal a management decision.

The grievance procedure is the negotiated way that the parties want to resolve their disputes. In the absence of a grievance procedure, the parties would have to run to court and sue each other each time they felt one or the other violated the contract. Through the grievance procedure, the parties are saying let's find a systematic, orderly, and timely way to resolve our problems. The grievance procedure allows there to be labor peace between the employer and the union during the term of the contract.

Different Types of Grievance Procedures

And there are different types of grievance procedures. Generally what they do is inform the union, inform the employee, how they should file a grievance. Whether it must be in writing. Which supervisory or management personnel the grievance should be presented to. How to keep moving that grievance up the chain of the procedure to higher levels of management and higher levels of unions to help get the grievance resolved. And finally, if the grievance can't be resolved, the grievance procedure informs the union and the employees how to process the grievance through to arbitration, often how the arbitrator will be selected and the authority of the arbitrator to resolve the dispute.

Some grievance procedures our very detailed. They have very specific and defined steps. Step one, the employee shall discuss the grievance with his immediate supervisor. Step two, the union representative shall discussed the grievance with the plant manager. Step three, the union president shall discuss the grievance with the employer's president. And step four, if there's no resolution, the grievance may proceed to arbitration. So in some grievance procedures, there are very defined steps about how the grievance moves forward.

There's often detailed time limits, defined time limits, on moving the grievance. For example, a grievance shall be filed within five days of the occurrence of the grievance, or within five days of when the employee should have known there was a there was a grievance. And it may say, if the grievance is denied at step one, the union shell appeal the grievance to step two within five days or within ten days. Whatever time period the parties agreed to. And it'll often say if there's no resolution of the grievance, the grievance will be filed for arbitration within x number of days of the last employer response.

So some parties have chosen to set very specific and defined steps and time limits to file, process, and appeal the grievance. And there's an advantage to these detailed grievance procedures. It's timely and it's an orderly processing of the grievance. Everyone knows exactly when the grievance must be filed, and when and how it's to be processed through the steps. The disadvantage of a detailed procedure is sometimes the parties wind to emphasizing procedure over substance. The goal, hopefully in a workplace dispute, is to find a resolution.

If for example the employer is denying a grievance, saying it was filed after six days rather than five days and therefore should be dismissed, then that grievance will never be heard on the merits, and the issue will not be resolved, and will likely rise again in another setting sometime in the future. So an emphasis on the detailed grievance procedure sometimes force the party's efforts to resolve a dispute on the merits.

In response to that, some parties agree to a much more informal and loose procedure. It may not have any time limits. It may simply say an employee shall raise the grievance with the supervisor, and if no resolution can be reached, the business agent shall raise the issue with the employer. And if no resolution is reached, it shall proceed to arbitration. There are steps there, but there's not specific time limits to move it through the procedure.

The advantage of an informal process is it encourages communication between the parties. There has to be continuing discussion back and forth in order for the grievance to be resolved, and the focus is on the merits, not on the procedure itself. The disadvantage, of course, is grievances may linger, and there'd be no resolution for a lengthy period of time because nobody is forced to move the grievance along. And when there's no resolution, the issue we'll either continue, or it will be repeatedly raised as the employer continues takes the actions that are being challenged.

So whether it's a detailed procedure or an informal procedure is really up to the parties. It's something that they have to negotiate and decide what system works best for them. Generally, the larger the employer and the more employees involved, there's usually a detailed grievance procedure. Some smaller employers and unions have the informal procedure. But again, it's up to the parties to determine what works best for them.

As part of your assignment for this week is to look at some sample grievance procedures from actual contracts. And you can see the difference between the formal procedures and the informal procedures, and you can weigh for yourself what you think would provide for the most orderly and efficient processing of the grievances.

Management Rights Clause

The third section of the contract that is important is the management rights clause. You may ask, if the contract is between the union and the employer for the benefit of the employees, why would you need a management rights clause? That's a good question. Management already has some inherent rights to run its business and to operate its business. When a contract's negotiated with the union, some of those rights are abridged. Management is saying, the employer is saying, that there's some issues of managerial authority that they will negotiate with the union and try to get their employee's agreement on how those areas of authority will be handled.

For example, most contrast contain a seniority clause. With variation, the seniority clause basically says that the employee with the most years of service enjoys some benefit, whether it be the first to be promoted, or the first pick vacation. In absence of that seniority clause, the employer to do as he wants. It could promote the lowest seniority employee. It could grant vacation according to any system it wanted to grant vacation. So in that case, by negotiating a seniority clause with the union, the employer is saying I'm giving up my right to determine, for example, promotions or vacations in any way I want to do it, and instead I'll do it the way we agreed to do it in the contract.

But parties often include a management rights clause that recognizes that the employer has inherent managerial rights that it retains, that it's keeping, unless specifically abridged by the contract. So under a management rights clause, when an employer takes an action that it asserts is within-- an employer takes an action that it asserts is within its authority, unless the contract has some other provision that limits that employer's right, the management rights clause is used to establish that the employer never gave up its right to take that particular action, or never negotiated away that area of authority.

So it's a legitimate question to say whether a management rights clause is necessary in a contract, because unless it's abridged by the contract, the employer still holds on to those management rights. But you see, many times, a management rights clause in the contract, and it at least recognizes that the employer has retained those rights that it has not negotiated away in the contract.

Discipline Clause

A fourth section of the contract that is important is the discipline clause. And the discipline clause determines how and for what an employer can discipline, suspend, or discharge an employee. Without a contract, employers are free to discipline employees and discharge employees at will. What's known as at will employment. An employer can discharge an employee because he doesn't like the personality of the employee. He can discharge an employee because he wore a red tie one day and the employer doesn't like red ties. That's an extreme example, of course, but at the point is an employee without a contract serves at the will of the employer and can be discharged for any reason provided it doesn't violate any discriminatory statute, such as for racial discrimination reasons, sex discrimination reasons, and so on.

When an employer enters into a contract with a union, they are ceding some of their authority to discipline and discharge employees. Employees protected by a contract can only be fired for just cause. And sometimes that's worded differently in contracts. Sometimes it'll be just causes. Sometimes it'll say good and sufficient cause. Sometimes it'll say for a proper cause. But the point is once the employer negotiates a just cause provision in the discipline section of a contract, an employee's no longer an at will employee, but rather can only be discharge if there's some good and improper cause. Later in this course, we will have a more detailed discussion of what just cause means. But in a discipline case, in a discipline grievance, the first section of the contract to look at for a discipline grievance is the discipline section of the contract.

In addition to a just cause requirement, it'll generally list reasons that employees can be immediately terminated. These are what we often call the cardinal sins. It'll say an employee may be immediately discharged for, for example, theft. Fighting in the workplace. Those offenses that we would probably all agree are so egregious that an employee should be fired immediately. Except for those cardinal sins, most discipline clauses in a contract provide for some type of progressive discipline. A verbal warning for the first offense. A written warning for the second offense. Maybe a suspension for the third offense. And then termination for the fourth offense. Some type of system where an employee is progressively disciplined. The discipline becomes harsher and more severe for repeated violations of the same employer policy.

And the discipline section of the contract may also include some due process requirements prior to discipline and discharge. It may require the employer, for example, to give the employee notice that it's investigating an alleged offense by the employee. It may require the employer to suspend an employee pending an investigation. And it may require the employer to complete that investigation in a certain period of time and inform the employee of its decision. There's various due process requirements which we will also talk about at length later in the course, but it's important to be aware that you can usually find those due process requirements in the discipline section of the contract.

There are certainly other provisions in the contract that are important, but do the four that I have outlined you'll find in most every contract. And again, they really form the heart of the contract in determining the relationship between the employer and the union. The rest of the contract-- economic sections of the contract, seniority and so forth-- are sections that impact directly on the employees, and these other provisions really go to the relationship between the employer and the union.

In addition to the collective bargaining agreement, the negotiated contract between the parties, there are other agreements that generally make up what we call the labor agreement. There can be oral and written supplements so the contract. These may be midterm additions or modifications contract that the parties agreed to. There can't be a modification without an agreement of the parties, but an issue may arise that's not addressed in the contract, and the parties get together and decide how they should handle that particular issue. They may verbally agree to resolve the issue in a particular way, and that verbal agreement becomes part of the contract. They may reduce it to writing, and that written agreement will become part of the contract.

We often to refer to side letters. Side letters to the contract. A side letter to the contract is simply a written agreement between the parties describing how they have resolved a certain issue or how they want to handle a particular issue that isn't addressed in the contract. There may also be negotiated work rules. When employer work rules are negotiated between the union and the employer, and maybe signed off by both parties, those work rules are considered part of the labor agreement. And there may be other policies that are also negotiated between the employer and the m and become part of the labor agreement.

It's important to understand, however, that an employer may have many policies that relates to its operation. It could have a family medical leave act policy. It could have a sick leave policy. It could have even a discipline policy that describes certain offenses and certain penalties for those offenses. And not all these policies are negotiated with the union. And when they're not negotiated with the union, they're not considered part of the labor agreement. The employer has the right to implement reasonable work rules. Sometimes that's recognized in the contract, but even if it's not recognized in the contract, it's generally held that  an employer has a right to implement reasonable work rules.

But of course at the same time, the unions can grieve the reasonableness of the rule or the reasonableness of the application of those particular rules. But sometimes if those policies are negotiated with the union, they're considered part of the labor agreement. If they're not negotiated with the union, they're still in effect, they're still valid policies, unless there's a successful union challenge to them, but otherwise they're still valid policies that the employees have to abide by. They're just not part of the labor agreement.

Probably the broadest area that would require the most discussion-- and we will talk about it again later in the course-- that adds to the labor agreement is past practice. Past practice is an employer action that's taking that becomes part of the labor agreement for several reasons. If the contract is silent on the particular issue, or the contract language that the parties negotiated is ambiguous, vague, unclear, then the parties-- and really, in the end, the arbitrator-- has to look at past practice to see how the parties in the past have handled that particular issue.

There are certain requirements. Not everything is a past practice. A practice must be unequivocal and consistent. That is a particular issue came up. The employer each time handled it in a similar manner, in a consistent manner. If the employer handled it one way one time and an opposite way the next time, so on and so forth, it wouldn't be a past practice because it's not unequivocal, it's not consistent. A practice must be unequivocal and consistent. It has to be clearly enunciated and acted upon, which means that the parties have to be aware that the practice is going on. If the employer is taking an action that the union knows nothing about and takes that action for a long time, it's not necessarily a past practice if the union had no opportunity to discover it.

Again, the practice has to be clearly enunciated and acted upon. And it has to be readily ascertainable over a reasonable period of time. That means, again, that both parties should be aware of the practice, but that it's happened over a reasonable period of time. If the employer did something once or twice over a 10 year period, that's likely not enough to create a past practice. But if the employer took some action every December at the same time in the same way over a period of 10 years, it is likely to be a past practice.

And past practice is a term that's thrown around often where parties want to establish that the way they've done something is the right way and the way that it has to be. But there are standards that must be met before you can label something as a binding past practice that would become part of the contract. And again, we'll talk about past practice it length later in the course, but it's important to recognize that everything is not a past practice, even if it's happened a couple times in the past. Again, the contract must be silent or ambiguous on the issue, and the practice must be unequivocal and consistent, clearly enunciated and acted upon, and readily ascertainable over a reasonable period of time.

Grievance Settlements and Arbitration Awards

Finally, a fourth component of the labor agreement are grievance settlements and arbitration awards. When the union files a grievance to contest some employer action, and that grievance is being processed through the procedure, and the parties reach a resolution-- again, sometimes they do so verbally, sometimes they do so in writing-- that grievance settlement, unless specified otherwise, is recognized as the resolution by the parties that interprets the particular term of the contract that's in dispute. What that means is when a similar situation arises subsequent to the settlement, the parties have agreed to handle that later situation in the same way they handled the issue that gave rise to the grievance the first time and led to the green settlement.

Parties do talk about precedent setting and non-precedent setting settlements. They may resolve a case and say it's non-precedent setting, meaning it has no bearing on further grievances. For example, an employee may say I want to file a grievance because I was bypassed for overtime on October 25th and the company owes me four hours pay. The company may disagree that it allows the employee four hours pay, but may recognize that the union has some argument to make in support of the employee's grievance. And the employer may say we want to settle this grievance. We'll give him his four hours, but we're not admitting that we're doing anything wrong, that we did anything wrong in assigning the overtime, and this is a non-precedent setting settlement.

Once it's non-precedent setting, the employer maintains its argument that it acted in accordance with contract, and if the situation arises in the future, the employer will hold onto its argument. The union will hold onto its argument. And the settlement cannot be used to force either settlement, of it cannot be used in the arbitration of the grievance to prove that it should be handled in a particular way.

Arbitration awards, grievances that go through a hearing and result in a decision by an arbitrator, are final and binding. When they are final and binding, that means if an arbitrator interprets a particular section of the contract in a certain way, then the parties have to follow the contract in the way the arbitrator spelled out. And future arbitrators that may have a similar issue before them are generally bound by the first arbitrator's decision on that issue. So grievance settlements that are precedent setting and arbitration awards become part of the labor agreement, because those settlements and those awards dictate how certain provisions of the contract are to be interpreted.

Conclusion

And once again, and in conclusion, the first source that has to be checked whenever there's a complaint, whenever there's a grievance, is the contract. The written agreement between the parties. If the contract is silent, if the contract is ambiguous, you must look to see if there are oral or written supplements that previously addressed the disputed issue. You have to look if there were grievance settlements or prior arbitration award that address the disputed issue. And finally, you have to look if there has been any past practice established between the parties on how to handle and address the disputed issue. They are the four. The written contract, oral and written supplements, past practice, and grievance settlement and award arbitrations are the chief components of the labor agreement and the sources that have to be checked when investigating a complaint or grievance.