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lust is now starting all attendees are in listen-only mode good afternoon everyone and welcome to the third in our Labor series bargaining with you with your employees labor representative the do's and don'ts of union negotiation I again I'm Nicola Tala partner here at the Libra and played a group at Lehren aza and I here with Sarah Nash hi everyone um Sarah told me I'm not allowed to make any weird puns about Halloween so I know this is an intimidating and scary topic happy Halloween everything but today we're going to talk about what I think is one of the most intimidating parts of working with unions and organized groups of folks and that's what do you do about negotiations what's what to expect when you walk in the room what types of things you'd have to negotiate what types of things do you not so we're really going to understand better our obligations to bargain with a bargaining representative what to say and what not to say and chips for negotiating a strong agreement and Nicole mentioned this is a scary topic I think one of the reasons it's scary is because you don't necessarily have clear guidelines telling you exactly what you need to be doing when you need to be doing it we'll try to kind of go over some of those sort of broader rules that apply but generally the obligation that you have when negotiating with a union is that you are required to meet at reasonable times to confer in good faith with a union on mandatory subjects of bargaining and there's a lot to unpack in that sentence we'll go over most of it we'll go over what a mandatory subject of bargaining is how you know if employees have designated a bargaining representative and what it means to bargain in good faith and in some instances what it means a bargain in bad faith and just to start this off because I think it's one of the bigger issues with when it comes to bargaining is you have to it can't just be showing up at the table you have to demonstrate that you are act interested in reaching an agreement and you have to actively pursue that agreement in order to ultimately be performing your obligation under the Act and in the first webinar we talked about unfair labor practice charges at the NLRB and normally one of the first types of charges we get in a negotiating scenario is a failure to negotiate in good faith and and that's one of the tools that a union might use to press you to move forward because that's generally a little to no cost to them and ends up costing you so sometimes they have very you know reasonable things to say about that and sometimes it's kind of a pressure tactic it depends on the group and obviously perspective is important there but that's all to say that that's one way that you can quote-unquote get in trouble if you don't engage in good faith bargaining is that thank you LP and it does sound sort of intimidating but generally as with most things if you can have a decent relationship with your Union then you don't have to worry about necessarily crossing all the t's and I dotting the eye and making sure that everything's perfect because we're all human and so if you could have a decent conversation with people and talk through some of these things you're not necessarily going to be standing at an unfair labor practice yeah so when do you have an obligation to bargain so this is you know kind of at the very very beginning of a process before you're even really sitting down across the table from anyone and a couple of different things can happen that would invoke your obligation to bargain the first is that there's an election so you're either you either come into a contract situation if your government contractor or you if you're not a government contractor your labor force decides that they want to be organized and they go through the election process to vote and certify the union and there is a there is a specific process that happens and specific timelines there's some negotiating there with respect to what the proper bargaining unit is etc but once that's been established and the employees vote and if they certify that Union as bargaining representative from that point in time forward you have an obligation to bargain with that Union another thing that can happen is that you voluntarily recognize the Union so in a lot of scenarios maybe you already have a good relationship with a union you're working on several different contracts with the Union maybe even you've signed a national agreement that said that you'll voluntarily recognize a union once there's a showing of support and you can it's within your purview to voluntarily recognize and say hey we're going to not do this election process and we're going to go forward and as soon as you do that then you have an obligation to bargain once your collective bargaining agreement expires you have an obligation to bargain right so you've signed a CVA and it has a specific term in it and and those are the rules of the road while that agreement is in place but almost every agreement has a provision in it that says within so many days of the expiration of this agreement we're gonna give notice to the other party that we want to sit down and talk about these terms again and when that happens you have to sit down and talk to them about it um there are certain exceptions here for construction contracts subjective pre-hire agreements yeah it I mean you kind of have to be in it to know whether it applies to you but basically certain provisions of the Act allow construction companies in very specific scenarios to enter into what's called a pre hire agreement which means that you don't have a showing of union support before you sign an agreement and so just be wary if you're in the construction industry you want to make sure that you understand which requirements apply to you we do have a question do you always have to renegotiate when an agreement is about to expire unless the unions been to certified generally speaking if somebody invokes a clause in the contract that says you know the contract says within 30 or 60 days the other party can give notice that they want to sit down and renegotiate then yes you would you'd have to sit down and negotiate some contracts have provisions in them when it they say if no party gives notice then the agreement will just continue from year to year now it depends on the wage and benefit provisions and those agreements obviously as to whether you want to you know sit down and talk about these again but if you have a provision in your contract that just says we're gonna do a two percent wage increase every year and everybody's happy you know I've had circumstances where nobody touches the agreement because it just continues from year to year until somebody's unhappy so that can happen as well but generally speaking yes when when it's going to expire and somebody gives notice or does expire if there's not a notice provision then you have an obligation to sit down at bargain and finally we talked a little bit about this the last two sessions but if you're performing as a success or an interest so if you purchase a company that has a bargaining unit on site there are certain tests to determine if you are a success or an interest that goes back to that concept of whether you're a perfectly clear successor as well and what terms and conditions you need to invoke for employment at the outset but in both of those scenarios whether you're taking over a government contract where there's a labor union or the employees have already been organized you take on a workforce and you hire more than 50% of the people that are in a bargaining unit or you are a perfectly clear successor where you purchase the company in those scenarios you would likely be a success or an interest and need to negotiate with the union so next we're gonna discuss a little bit about what these negotiations should cover and it's important to understand the difference between mandatory subjects of bargaining and what are known as permissive or voluntary subjects of bargaining so mandatory subjects of bargaining are subjects that directly impact employees terms and conditions of employment and these are topics that you need to negotiate it doesn't necessarily mean that you have to negotiate them in a certain way or that you have to reach a certain conclusion when you're talking about these provisions but you can't just flat-out say oh no we're not going to talk about that examples of mandatory subjects would include wages benefits holidays sick days general sort of terms that govern the nature of employees and you can negotiate sort of limited types of implementing implementing these issues so for example if you don't want to necessarily provide sick days that doesn't mean you have to provide them but you do have to negotiate over them and it'll make sense a little bit more as we talked on the next slide about what you don't necessarily have to talk about but there have been unfair labor practices filed where employers have refused or unions even it's it's both parties have an obligation to talk about these issues so you want to make sure that you're not shutting down negotiations when it comes to terms and conditions of employees employment and one thing I'll say is you know when you're getting ready just from a practical what happens next so so when we started out talking about when you have to sit down and actually negotiator when you have to negotiate with a labor union right so there is that question but then I always get the question is so what happens in that space between I recognize that I have to negotiate with them and then I'm deciding what pieces I need to negotiate what are my mandatory subjects what am I going to suggest we put in this Agreement usually some sort of phone call is made somebody writes you a letter a lot of times you'll receive a form letter from the union saying this is our information request we talked about information requests in the first session and what you're obligated to provide look over those carefully they're usually a form letter that goes out from the union that says this is all the stuff we normally ask for if you're concerned about it you know call us and we can talk you through whether you have to provide that information or not they're trying to get a sense of what you currently provide and what your current policies are so that they can make recommendations to their unit as to what to bargain over and trying to figure out what their unit wants and how realistic that is right so they're doing that and then there's a question over time in place you know when are we going to sit down sometimes if your government contractors that we have we have nine ten months before we have to turn something into the CEO we talked to last week remember that that that doesn't mean you have nine ten months under the NLRA to sit down and talk to the Union so I'd suggest you these some things these things can take longer than you expect though I would suggest that you do that start having those initial conversations on the front end of that year as opposed to the back end don't push it too far off and then there's a question of can't we do this by telephone where do we have to do this particularly if you have a worksite that's far away from your home office there's a cost to going out there all of that is negotiable some unions are perfectly fine talking about initial drafts and things like that over the phone until you get to the heavy stuff other unions are not okay with that and particularly if you don't have a relationship yet they want to sit down at the table I've gone through this question at the NLRB before whether we can force them to do this on the phone and most of the time they'll say if in doubt we're gonna make you go to the location of the employees so that the employees can be involved in in bargaining but that's a case-by-case decision so once you guys all agree on time and place a number of days not uncommon for the union ask for five consecutive bargaining days the first time around and employers always say wait is that going to come I'll have five days to sit down maybe you get done sooner but that's all negotiable the number of days where you need where you sit down is it going to be at the Union Hall is it going to be the company location is it going to be a neutral territory all of that should be talked about beforehand as well as how you're going to handle some of these mandatory and permissive subjects of bargaining so what are we going to tackle first what issues are we going to talk about first do you want us to look at some agreement that you like so unions will often say hey we really like this agreement or this is the predecessor agreement we'd like to start from here and so all of those kinds of pre negotiation issues you want to talk about first we always recommend starting with non economic terms first and then getting to the economic stuff because that's usually where folks it can get a little bit tense and so we like we recommend kind of separating those things out getting stuff checked off as you go um and then talking about these things so let's talk about permissive subjects of bargaining for a minute so what types of things you know may you talk about but you don't necessarily have to talk about they're not directly related to terms of employment so they're not wages or vacation or holidays but they're important they're often very important things to the unit right they're often things that you know you might think why do you care about that but the unit cares about that those types of things so examples would be again terms of negotiations which I think is really important but it's not required of adding supervisors that comes up a lot particularly on government contracts because if a project manager or a lead of some sort was in the unit under the prior contractor they they might be in a position to lose some of their benefits by coming you know to use so there might be a discussion about whether there's some way to let them keep their benefits but maybe not be subject to the disciplinary provisions or things like that there might be terms about how they can access the site when they can access when the union can access the site those things might come up as you know they're kind of gray areas with respect to whether you have to talk about them or not some things are just good practice to talk about even if they're not mandatory what I usually suggest if the Union raises an issue or you raise an issue that the other party doesn't want to talk about you at least talk about why it is that you don't want to talk about it or you say I don't think it's appropriate to put this very long drawn-out thing in the CBA but I'm willing to talk to you about how we handle these situations or what the company's position is on it I just don't know that it's something appropriate for the CBA something else that you want to be careful about is because these are permissive and because you're not required to bargain over them you're also not required to essentially hitch your course on mandatory subjects to your permissive subjects so if you can't necessarily agree on how many negotiating sessions you want to have in the first go-around or when and where you want to meet you can't condition reaching agreement everything else on meeting that permissive subject of bargaining so that's just something to keep gasps a chance that I'm not going to agree to your wage proposal if you if you don't agree to my proposal to meet for three days instead of five or something like that because that essentially invokes the mandatory subject of bargaining that's essentially what it does this is all distinguished from illegal subjects of bargaining such as like that we talked about what a closed shop provision is or hiring-hall provision with preference for union members provisions inconsistent with the union's duty of fair representation so things that are protected by law you're not going to be able to bargain those over those things because they're protected essentially by law the law tells us how to deal with those things as opposed to something that can really be negotiated over and so now that we know sort of the different types of things that might come up we'll go over some important things that you are definitely want got to want to include in a CBA there's a lot on this list I think I'm gonna just cherry pick a few Nicole might have a few that she wants to talk about as well generally these these are sort of the typical things you would see union recognition essentially determines your bargaining unit and how you you've recognized the union of what it applies to so what your agreement is looking at and then something that is pretty important but it's sort of confusing so it's maybe outside the scope of this presentation is Union security and membership and there's a big difference in how this operates whether you're in a right-to-work state or if you're in a non right-to-work state but generally this is going to determine union dues and how you go about detecting those employees paychecks and membership and so this is something that the Union is going to likely insist be in an agreement it's important to look at it to make sure it's not obligating you to any unlawful terms but generally it's gonna be in there and you want to make sure generally that there's an indemnification clause that goes along with it just because it's putting you in a situation where you're likely going to be taking out or deducting dues from employees paychecks so that's something to consider generally when you talk about CPAs the big-ticket item is this idea of discipline and just clause and discipline kind of goes hand-in-hand with the grievance and arbitration procedures and that's because generally one of the biggest benefits that employees get from having a collective bargaining agreement is this idea that they can't be terminated for any reason so they're no longer at-will they're likely going to be only be able to be terminated for just cause and there's a lot of ways to sort of set this up I'd say probably the most frequent one that we see involves a sort of progressive discipline where you maybe might include a verbal warning followed by a written warning followed by potential final warning or suspension and then ultimately termination there are a lot of different ways you can set this up but it's going to be important that you address this in a CBA and on the other side of that if for some reason someone is disciplined or terminated you will have a grievance procedure that you can follow for figuring out how the Union and the company go about sort of addressing a problem that arises if employees terminated and in that the types of employees that you have really matter so we see the more extensive discipline policies with workforces that you notice they aren't there sometimes their lower skills workers sometimes they have more shift to work it's easier to kind of set very specific rules of the road with respect to what's allowed and what's not allowed but sometimes we see something that's just we won't discipline or terminate without just cause sometimes there's just a very slight reference to it and a management rights provision or something like that yeah and then some other important provisions this is by no means all-inclusive so be sure maybe to look at a model when you're actually going through the motions of this but one thing that you want to make sure is in there is a no strike no lockout provision and a strike is essentially where workers can get together and say we disagree with whatever's going on here and we want to strike and which is generally something that's protected by the National Labor Relations Act but you are able to contract around it by saying in exchange essentially for reaching this agreement and getting together we're going to agree that employees are not allowed to strike during the terms of the CBA and it works both ways so just as employees have the ability to strike in most instances employers also have the ability to lockout employees which can be used essentially as a technique to kind of encourage negotiations or to encourage different sort of processes when you're working through different relations with unions and so it's important to have those provisions in there especially when you're in the government contracting world because you don't want to be in a situation where all of a sudden your entire workforce is out with less than a day's notice you're scrambling to fill in those positions you want some sort of labor peace to be assured and so pretty much most CBA's you're going to see a no strike no lockout provision you also want a management rights provision which is going to essentially define the things that are outside of the scope of the CBA that say listen this is management's sort of purview so they can set hours of employment they can set when we want to lay off employees suppose you have a slump and work and you need to maybe a layoff some people who you don't necessarily have the work for you want to consider what sort of things might come up in the day to day sort of scope of the business that have ultimately a hard impact on the bottom line another thing that it's not always in CBA's but you might consider whether or not you want to include it it's called a different clause essentially what it does is it says everything that we've talked about in this CB a is what it is and we're not addressing things that are outside of the CBA kind of zips out the possibility of things that are outside the scope coming up later and it can be useful if you don't want to operate in a lot of gray area and then lastly just for because we have a lot of government contractors listen again we generally recommend including a government requirements section that essentially says if the government makes us do something then we have to be able to do it and that can you might think oh that makes perfect sense that should be how it works all the way but if you don't have that provision in there necessarily it could get messy when you're negotiating down the line or when you're trying to suppose the government strip someone of their credentials to get into a worksite or shut down the government yeah if there's nothing in your agreement that specifically addresses this kind of idea that there is a government customer out there you could be stuck on the line and ultimately unable to get out of it from a contractual perspective there's also we've talked about this in the previous webinars so I'll just mention it briefly this idea of withdrawal liability and potentially making sure that you are potentially covered from a price adjustment standpoint when it comes to pension withdrawal liability so these are just some things to think about if you have particular questions about them we can go over them in another time but that's just generally what you want to think about we have one question about sort of what would happen if you accidentally agree to something that allowed by law technically it's a violation of the Act it could be a ULP it usually doesn't happen that way yeah I think that it's just void if there's no one to really yeah if there's no one to complain about it it's probably not going to end up anywhere it'll just get stricken yeah we just say it's void as a matter of law that we couldn't have agreed to it by contract and then you deal with it when it comes up and and that happens you know all the time there are non-discrimination provisions that aren't complete depending on the state that you're in or there I mean we run across things that are technically illegal Oh all the time and you just talk to the Union as a groups and we move on so what we sometimes we get stumped particularly on things like wages or how much vacation accrual someone's going to get or whether or not you're going to agree to be in health care in the union's health care plan or whether or not you're going to agree to that pension plan and so there's this concept in bargaining that once you get to impasse it's called legal impasse then you as as an employer can implement your last best offer doesn't necessarily you know negate some of your other responsibilities but it basically says at some point of time that duty to bargain is suspended on and and we've got to move on with our lives right what I will caution you about is that legal impasse is extremely difficult to get to just because you don't agree in one meeting doesn't mean you're at legal impasse and I would highly suggest you talk to counsel before doing before just saying okay well you're gonna take our terms and and we're just going to go mad our way it also forgot meant contractors remember in order to get those price adjustments you need to have a signed sealed and delivered agreement so that's this is not going to help you get there right um it's unlawful to reach in passes on those illegal or permissive subjects of bargaining because they're not required anyway right so you somebody can bypass them I've also had situations where essentially the board has said you've essentially come to an agreement to terms and you know the those outliers they don't matter you've essentially come to an agreement all the important stuff and so does this happen yes but it's extremely difficult to get there so those are some of the basic bones of how you come to an agreement there are some other important things that we're gonna touch on on the slide just because it's important that you're not blindsided and that you understand at least that they're coming and you don't outright outright like engage or reject these issues so Nicole touched on this earlier and this idea both parties have a duty to furnish reule of an information so when the Union sends you that information request you have an obligation to respond to it and it's important that you don't delay because failure to respond in some cases is just as detrimental as delay and delay is detrimental and failure to respond so you don't want to be dragging your feet sometimes you might have an argument that it's confidential information and/or its proprietary you really need to look at it the general rule of thumb though is that most things are irrelevant as long as it's touching on employees and their rates of pay or their benefits or specifically that workforce chances are you have an obligation to turn it over you also so there's this interesting sort of part to the law that requires that you provide financial information where an employer has stated that it is financially unable to pay the wages or the benefits that the union is asking for so if you're sitting down and you say we can't afford to give you a three dollar an hour raise you just basically open the door to the Union requesting financial information to demonstrate that you can't afford it and you never want to put yourself in those positions so it's a good idea before you go into a bargaining room to make sure that the team that you've selected that there's a spokesperson that understands the rules of the road you know we bargain a lot on behalf of clients and it's not always necessary to have us there's a lot of times some clients do it on their own and some clients have us go and do it for them it just depends on where you are in the process but at very least you should make sure that the person that's designated to speak on behalf of the company knows when they could be getting in trouble if they say something Adam turn yeah and and it's not any so just because you're unable you want to say this isn't gonna make us uncompetitive or this isn't practical that doesn't necessarily open up but just bear and be careful when you're talking about money in those terms you also want to make sure that the person that you designate has adequate authority to she ate you don't want to be in a situation where every time you go over something they have to go and make a phone call to the actual person who's in charge that doesn't mean that they ultimately have to have the authority to sign off on the final agreement but they need to be able to make substantive changes otherwise you're opening yourself to a bad faith bargaining claim and in fact I think everybody recognizes that the Union even has obligations to make sure they run the final of the final proposed agreement past their workforce a lot of times there are voting procedures you might have a CEO that you need to run it by just to make sure that you get the final signed sealed and delivered you want to make sure that you have conveyed to the Union on every single draft that you know we're not agreeing to a whole CBA even if we agree to pieces of it until we sign on the dotted line so before you walk into a room again it's important to understand what processes you're going to employ to make sure nobody misunderstands what their obligations are and just quickly it's it's unlawful - it's sort of a big topic but just bear in mind you can't be changing terms and conditions of employment while you're engaged in negotiations that can't give everybody a big bonus or change their wages right when you're in the middle of negotiations you're sort of that yeah you're trapped in a holding pattern to a certain extent you can't bargain directly with employees - Nicole's point of bonuses you can't say hey Joe what do you think about a bonus for Christmas and we'll figure it out that way the idea is that you're not necessarily treating the Union in that instance as the employees collective bargaining agent you're going around them and it's called strike feeling and it's unlawful under the Act you also can't in the cold spoke about this withdraw from an agreed upon provision so you want to be careful that you're accurately describing to what extent you're agreeing if you have a tentative agreement it's better to put it that way then just say yes we agree because you don't want to have to go back to it and essentially engage in regressive bargaining and a lot of times when you go through it and I know we're running a little over but I promise we have one slide left so bear with us for a minute a lot of times what do when you go through is you've marked EA's by things that the union or the employer of tentatively agreed to and then lastly you can't this is sort of after you've bargained after you've gotten a CVA just be aware that you're gonna be stuck with those terms unless you essentially get the union's prior consent to be able to change them which is a whole different kind of kettle of worms so just be aware that these are at least for the term that you've agreed to which is generally on a three to four years these are going to be the terms that pending some sort of unforeseen circumstance these are the terms of employment so final tips for productive bargaining you know kind of know the rules of the road as I said plan on how you are going to approach bargaining what's really important to you have you talked about what you know what your bargaining position has to be or what your limitations are don't go in blind it's always good if you take the initiative by providing a proposal at the first meeting you know you always want to be the one to first propose and that you know so what I talked about the Union will often send you an agreement that they really like I don't like to put it in the same form sometimes I like to use the state I use I like to take pieces out because it's always good if employees recognize certain language but you know take initiative by providing a proposal at the first meeting on certain terms you can always turn it into the CBA language later take very good detailed notes about who's saying what when things are agreed to when things are tentatively agreed to what's said so that if there's any dispute lately later you know about it you know do your homework know what your know what you're getting into know it's important to the Union you can often find agreements of theirs online there's a lot of information out there so you can get a sense of what they've agreed to in the past and sometimes we'll find agreements that were like oh oh we're here they didn't require healthcare so what they're telling me and bargaining about they always have to have their health care plan is just not true so do that homework and never engage in regressive bargaining and that means that we've tentatively agreed to $15 an hour and now it's basically a punitive measure I'm gonna say now I'm only gonna greet at ten there may be some shuffling around there at the end where you say okay you guys want two more days of vacation that means you're gonna get a little bit less in wages that's not necessarily regressive what's regressive is if you say oh sorry you know we didn't get that wrapped up the last time so now it's whatever it is and so you have to be careful again that when you're agreeing to things you're careful about the language that you're using thank you I know we went over today so I really appreciate your attention I know it's hard on an afternoon especially on Halloween I hope you all have a great night and thank you so much for joining us for the three-part series all the materials are on the web and we really do appreciate feedback so if there's anything we didn't cover that you want to hear about please let us know you