Key Provisions of Collective Bargaining Agreements (Part 3)

 

This is the final installment of the three part series of what I consider some of the most important parts of a collective bargaining agreement. Part I covered the recognition, management rights, and dues check off clauses. Part 2 covered the no strike / no lock out clause, as well as the sympathy strike clause.  This last part covers subcontracting clause and the union security clause.

If you’re wondering why I don’t include wages as a key provision of a collective bargaining agreement, that’s because, to me, they aren’t that key. These other key provisions can, if negotiated poorly, cost an employer a lot more money than wages and hinder the employer’s ability to freely run the company.

Subcontracting Clause: This is a fancy way of discussing when an employer can hire another company to perform work on behalf of the employer. Oftentimes unionized employers can have work performed less expensively and more efficiently by subcontracting the work to another company instead of doing the work in house. This is regularly the case when the employer has outdated equipment or high wage earning employees. As the saying goes, there is always someone willing to do it cheaper, faster, and better.

Unions seek to have no-subcontracting clauses in collective bargaining agreements because they believe subcontracting work that can be performed in house takes away jobs from their union members. They don’t care that subcontracting could provide the employer with additional revenue (to hire more union members) or a higher quality product (that increases the company’s reputation and fosters industry growth). Rather, unions take the position that if something can be done in house by a current union member, then the employer should forego all other options and have that union member perform that service.

Union Security Clause: Union security clauses are clauses that, literally, secure the union’s existence at a place of employment. These clauses are in collective bargaining agreements as “union shop” clauses or “maintenance of membership” clauses. Dues check off clauses can also be considered a form of union security clause.

Essentially, a union security clause either requires all employees working in a certain job classification to pay union dues and remain members in good standing of the union throughout the duration of their employment. Now for the technical part – employees do not have to pay all of the union dues, sometimes they can be “service fee” members instead of union members. Service fee members only have to pay the part of dues that are used for representational purposes, such as collective bargaining, grievances, and arbitration proceedings (and not pay for non-representational activity like political donations, education, and lobbying). Union security clauses should account for the service fee, and if not, be sure to raise it during your next collective bargaining meeting.


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.

Are State Law Donning and Doffing Claims Preempted by Sec. 301 of LMRA?

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

 

Are State Law Donning and Doffing Claims Preempted by §301 of the Labor Management Relations Act?

If you’re reading this, I am glad that the title did not bore you away from reading my article. A few definitions before we dig into the analysis, so that we are all on the same page:

Labor Management Relations Act:  The LMRA is an amendment to the National Labor Relations Act that limits the rights of labor unions and gives the federal government (not the National Labor Relations Board) the ability to resolve certain disputes between companies and unions.

§ 301 of the LMRA:  Section 301 of the LMRA gives federal courts the ability to enforce collective bargaining agreements.

Preemption:  In essence, whenever a federal law conflicts with a state law on the same topic, the federal law trumps, or preempts, the state law.

Donning and Doffing:  These are legal words that mean to put on clothing or equipment needed to perform your job and to take off clothing or equipment needed to perform your job. Many lawsuits focus on whether donning and doffing time is compensable.

State Law Donning and Doffing:  The Fair Labor Standards Act is the federal law that governs whether donning and doffing is compensable. Many states have their own wage laws. The FLSA preempts state wage laws that contradict it.

Okay, now we’re all on the same page and we can explore whether state law donning and doffing claims are preempted by § 301 of the LMRA.

Indiana factory workers alleged they were denied pay for time spent donning and doffing protective clothing. The workers were members of a union and thus covered by a collective bargaining agreement. They sued their employer under both the Fair Labor Standards Act and Indiana’s Wage Payment Act.

The employer got the Wage Payment Act claim dismissed under the theory that it was preempted by Section 301 of the LMRA. According to the employer, the collective bargaining agreement covered when donning and doffing was compensable and thus it was central to the dispute. In fact, it would be impossible to determine whether the employer violated the Wage Payment Act without first determining whether it had breached the collective bargaining agreement.

So why do I highlight this case for you? Although donning and doffing is such a hot topic now and many class and collective law suits are filed every week by union and non-union employees and former employees, this holding is much broader than a wage payment claim. In my opinion, every state law claim – not just wage and hour claims – filed by employees who work under a collective bargaining agreement should be scrutinized to determine whether those claims are preempted by § 301 of the LMRA. Attorneys who do not regularly practice traditional labor law are usually not used to the intricacies of § 301 preemption, so a gentle reminder from human resources is prudent.


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.