Key Provisions of Collective Bargaining Agreements (Part 1)

Collective bargaining agreements contain many different clauses. Some clauses are more important than others, but all clauses in a labor contract must be negotiated between the union and the employer. I consider the following clauses to be some of the most important provisions of a contract; recognition, management rights, dues check off, no strike / no lockout, sympathy strike, subcontracting, and union security. Each of these clauses will be expanded on in a three part series of Key Provisions of Collective Bargaining Agreements.

Recognition Clause: The recognition clause details precisely which employees the employer accepts (recognizes) as being in the bargaining unit and represented  by the union. Only these employees will be covered by the collective bargaining agreement. Recognition is given either voluntarily by the employer, involuntarily after an employer caves to the pressures of recognition picketing, by evidence that the union represents a majority of the employees via card check (employers should never agree to this), or after an NLRB conducted election. Even after an election, the recognition clause may be recorded wrongly by the NLRB, so ensuring that the employees who belong in the bargaining unit are the only ones listed in the recognition clause is critical. If an employer believes the the recognition clause is wrong, it should try to negotiate a proper clause with the union before filing a UC Petition with the NLRB to clarify which employees are in the bargaining unit.

Management Rights Clause Employers love management rights clauses. Collective bargaining agreements contain a management rights clause that specifies exactly what is not subject to negotiation. Instead, they detail what areas of operating the company are left to the sole discretion of the employer. For example, the right to hire, fire, promote, suspend, and discharge employees, direct the work of employees, and establish operating policies are generally reserved for the exclusive use and control of management. These rights, however, are not absolute. For example, although a management rights clause allows employers to decide who to fire, terminations can be grieved and arbitrated by unions if the union disagrees with the decision or procedure of termination.  Some management rights clauses provide greater rights to management than others, so employers should carefully review their collective bargaining agreements have an intimate working knowledge of what is and is not included in their management rights clause.

Dues Check Off:  Dues check off is when the employer deducts union dues from members’ paychecks and remits the dues money directly to the union – just like how employers withhold taxes from paychecks and remit them directly to the government. Unions enjoy dues check off clauses because the union does not need to collect dues from members individually after the members have already deposited the paycheck into their bank accounts and began spending the money on life’s necessities. As you can imagine, the success rate of actually collecting checks from each individual bargaining unit member after that money lands in the employees bank account drops precipitously. When union dues are deducted through dues check off, employees mentally consider the deduction to be another payroll tax and are less opposed to making the payment.

Coming up in Part 2 of What are Key Provisions of Collective Bargaining Agreements is no strikes, no lock outs clauses and sympathy strike clauses.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Does Your At-Will Disclaimer Violate the NLRA?


As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter

 

Does Your “At-Will” Employment Disclaimer Violate the NLRA?

This is becoming an unfortunate theme to my monthly column. If you haven’t noticed, I write an article highlighting something of significance that occurred at the National Labor Relations Board the previous month. When I started this column, I feared that I may run out of topics to discuss. I no longer have that fear. This month we explore the Board’s threat that at-will disclaimers in handbooks may violate the National Labor Relations Act.

Is your company handbook similar to just about every single handbook I have ever seen (or prepared for employers)? If your handbook has a provision telling employees that they are employed at-will, then yes, yours is like all the rest – at least in that respect. And you, like all the rest, may be violating the National Labor Relations Act.

At-will disclaimers generally state a worker’s employment status is at-will and can only be changed by a corporate executive. These disclaimers are intended to avoid a scenario where a manager, without authority to do so, indirectly or accidentally implies employment for a specific length of time or that an employee cannot be terminated without a certain level of scrutiny. Every non-union employer I know has an at-will clause in their handbook and many provide them in offer letters to new hires. So you all need to pay particular attention to this development.

Over the past year, the NLRB has targeted corporate policies of non-union companies and held that many common policies, some having been around for decades, now violate the National Labor Relations Act. Some of the common policies that have been deemed to suddenly violate the Act includes:

  • Certain arbitration agreements
  • Policy prohibiting employees from discussing matters currently under investigation
  • Rule requiring employees to only perform work during working hours
  • Open door policy that encourages workers to discuss matters of concern with management and reminds employees that venting to co-workers will not resolve the issue
  • Certain social media policies

If Lafe Solomon, Acting General Counsel to the National Labor Relations Board, gets his way, you can add a bullet point to the list above that says: At-will disclaimers.

According to Solomon, a clause that states an employee’s at-will status can be changed only by a corporate executive may lead an employee to believe that being represented by a union or having a collective bargaining agreement would be futile because neither of those could alter the at-will status. With this mindset, such a clausecould violate the NLRA. The Board has used this “may cause confusion” argument to invalidate other handbook policies before, and I anticipate it will do so again when given the opportunity.

What Should HRACO Members Do?

Please review your handbook policies – especially the at-will disclaimers. If they are similar to the above example, where at-will employment can only be changed by a corporate executive, you should consider modifying the policy. Unfortunately, I do not have insight into what type of at-will policy would appease the NLRB, but at a minimum, articulating that the at-will policy (or any policy in the entire handbook, for that matter) does not intend to infringe upon any rights afforded to employees by the National Labor Relations Act.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.