Renegotiating Collective Bargaining Agreements

While planning for renegotiating an expiring collective bargaining agreement should commence many months before the contract expires, the actual face-to-face bargaining usually begins about two months before the contract terminates. Renegotiations are sometimes a smoother process than negotiating the first contract because the parties are familiar with each other and their goals. However, if the company and union have competing agendas and goals or if the company rebukes many of the union’s demands, the bargaining process will be much more difficult than negotiating an initial contract.

Although smoother, renegotiations are still conducted across the bargaining table like first contract bargaining, and both sides continue to submit proposals and counterproposals to each other. The goal of achieving the best possible outcome is still paramount to each side. So tempers can still flare, requests for information can still be plentiful, and lingering animosity between the company and union from events that occurred at previous bargaining sessions or during the life of the contract can influence the tenor and activity at the table.

Companies that believe they can negotiate their own contract – instead of retaining a labor relations professional – risk agreeing to seemingly benign contract clauses that have treacherous impact on their companies or unwittingly creating unfair labor practices for things they said at the bargaining table. For example, when pressed for raises, do you know legal difference between unwilling to pay and unable to pay? Answer: It’s big.

Some of the terms in the existing contract expire when the contract expires, but most continue after expiration. Traditionally, once a contract expired, the dues check off clause also expired, and employers were not required to collect union dues. This meant the union must collect dues from each member individually, and employees are less eager to pay union dues when it comes out of their bank accounts rather than paychecks. The pro-union National Labor Relations Board recently ended this practice, and for the first time in over 50 years allowed dues deduction clauses to remain viable after the expiration of a union contract.

Health insurance is usually a key point of renewal contract bargaining. Employers can generally go to impasse over the health insurance and implement their bargained for health insurance on an emergency basis so workers do not lose insurance if the contract expires mid-negotiation. Otherwise, impasse is only available if neither side is willing to make any further counterproposals on any of the other contract clauses.

No matter if you are renegotiating a first contract or the company’s 100th contract, employers must pay very close attention to their conduct, language, and proposals made and accepted during renegotiation bargaining. And when in doubt, seek legal advice on the potential ramifications of bargaining antics or proposals.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at 614.285.5343 or email him at Austin@LaborEmploymentOSHA.com.

Should Craft Units Become Separate Bargaining Units?

A craft unit is an organization of workers who perform skilled or semi-skilled labor such as electricians and carpenters. Craft units have their own unions, i.e. Carpenters Union, International Brotherhood of Electrical Workers (IBEW), Plumbers & Pipefitters, etc. Non-craft units generally belong to unions like the Teamsters, Service Employees International Union (SEIU), and UNITE HERE that include many different types of jobs from many different industries.

The National Labor Relations Board looks at the following six factors when determining whether a bargaining unit is a craft unit:

  1. Whether the proposed unit consists of a distinct and homogeneous unit of skilled craftsmen;
  2. The bargaining history, with an eye to stability;
  3. The extent to which the proposed unit had maintained a separate identity;
  4. The pattern of bargaining in the industry;
  5. The degree of integration in the employer’s production process; and
  6. The qualifications of the union seeking to represent the proposed unit.

The Board is usually hesitant to disrupt an established bargaining relationship unless the facts of the particular case warrant otherwise. Employers that want to establish craft units for separate representation are better off achieving this goal during initial organizing. While this decision rests on the factual nuances of each situation, it is generally less disruptive to separate units up front as opposed to separating them once a bargaining relationship has been established. Companies should consult with labor counsel when deciding whether to separate craft unit because different conclusions face different challenges and rewards.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com.

What are Gissel Bargaining Orders?

When employers commit unfair labor practices that disrupt pre-election conditions to the point where the National Labor Relations Board determines a free and fair election could not be held, an parties are ordered to bypass a secret ballot election and to immediately begin negotiating a first collective bargaining agreement. There are no automatic rules in determining when a Gissel Bargaining Order is required. The Board has issued bargaining orders when employers have:

  1. Closed one store in order to discourage union activity at several of its other stores that were also being organized;
  2. Partially closed a plant;
  3. Partially closed a plant and subcontracted other unit work;
  4. Laid off all unit employees and transferred the work to another location;
  5. Subcontracted all of the work of the bargaining unit;
  6. Unlawfully disciplined, discharged, or locked out employees or refused to reinstate strikers who made unconditional offers to return to work; and
  7. Impaired employee free choice by granting or promising benefits to discourage union support.

On the other hand, the National Labor Relations Board has declined to issue bargaining orders when:

  1. The employer interrogated employees or suggested that unionization would be futile;
  2. The employer postponed or withheld wage and benefit increases; and
  3. The employer circumvented the union and sought to engage in individual bargaining with employees.

Do not rely on the above examples as legal advice or guidance on how your company should or should not act. The validity of a Gissel Bargaining Order is based on the nuanced factual circumstances as they exist at the time the unfair labor practices were committed. Oftentimes uninformed and unrepresented companies do not realize they are close to receiving a Gissel Bargaining Order until it is too late and they find themselves staring at a union negotiator across the table. Counsel or an employee trained in labor relations should be involved immediately upon receiving an RC petition from the NLRB.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at 614.285.5342 or email him at Austin@LaborEmploymentOSHA.com.

New Ohio Prevailing Wage Thresholds Take Effect September 29, 2013

Area wage standards, union scale, and “prevailing wages” are minimum payments contractors or subcontractors must pay employees when performing certain publicly funded contracts. A wage standard is calculated based upon the average payments for the corresponding class of laborers or mechanics employed on similar projects in the area and are generally found in multi-employer collective bargaining agreements.

If an apprenticeship program is registered with the Department of Labor or with a state agency recognized by the DOL then sometimes apprentices may be employed at less than the area wage standard. Trainees also may work for less if they participated in a training program that received certification by the Department of Labor.

Prevailing wage law is codified in Ohio Revised Code § 4115 and defines prevailing wage as the sum of the following: base hourly rate of pay, life insurance, pensions, health insurance, vacation or paid holidays, apprenticeship programs, and other bona fide fringe benefits.

As of September 29, 2013, the “new” construction threshold increases to $250,000. The “reconstruction, enlargement, alteration, repaid, remodeling, renovation, or painting” threshold level has been adjusted to $60,000 and $75,000. New construction involving roads, streets, alleys, sewers, ditches, and other works connected to road or bridge construction threshold levels has been adjusted to $82,137 while reconstruction, enlargement, alteration, repair, remodeling, renovation, or painting that involves roads, streets, alleys, sewers, ditches, and other works connected to road or bridge construction threshold level has been adjusted to $24,609.

Calculating prevailing wage rates can be daunting for employers – especially when new to the prevailing wage process. Even seasoned employers sometimes unintentionally run afoul of the law. Unfortunately, unions are quick to file public records requests for projects they are not working on, scrutinize pay practices on those projects, and instigate prevailing wage audits. Employers that do not follow area wage standards may be subject to contract termination, prevented from being awarded future contracts, and may have payment for work already performed withheld.

Unions may lawfully picket to protest wages that are lower than area standards. This is usually seen at non-union construction sites by inflating the union rat. If below scale wages are alleged, the National Labor Relations Board will investigate whether the union actually looked into the employer’s wages and benefits or had other reliable sources of information to support its allegations. In Ohio, prevailing wage claims are investigated by the Ohio Department of Commerce.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

Jurisdictional Disputes Drag Contractors into Fights between Unions

Jurisdictional disputes occur when two or more unions make conflicting claims over which group is entitled to perform certain work. For example, many different unions are represented on a construction project and there may be a dispute about who is responsible for cleaning up the scrap at the end of the day. Members of the carpenters union may think they are supposed to clean up after themselves in an effort to keep the worksite tidy and safe. But members of the laborers union believe they are supposed to clean up for the carpenters – after all, if the carpenters cleaned up after themselves then there would be reduced (or no) work for the laborers, the laborers would not be needed, and LIUNA (the laborers’ union and pension fund) would not get a cut of the laborers’ paycheck. So a jurisdictional dispute arises over who gets to clean up after the carpenters.

The National Labor Relations Board considers several factors before awarding the disputed work to one union over another:

  1. The existence of Board certification concerning the employees involved in the dispute;
  2. Evidence of the employer’s preference based upon past practice;
  3. Area and industry practices;
  4. Relative skills and training of the competing union’s members;
  5. Relative economy and efficiency of operations of the competing unions; and
  6. Past history of inter-union agreements and awards.

The Board generally rejects union arguments that the employer and another union are engaged in a “sham” effort to create a jurisdictional dispute unless the accusing union presents evidence showing that the other union’s demands for disputed work “were not made seriously” or that the other union and the employer “colluded” to create the jurisdictional dispute.

State law claims may accompany jurisdictional disputes and further aggravate companies. With the jurisdictional dispute resolved, a union could pursue a breach of contract claim against the employer for not assigning it the disputed work as required under a construction contract or project labor agreement.

This should go without saying, but if your company is put on notice about a jurisdictional dispute, get legal counsel involved immediately.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

Authorization Cards are Awfully Tricky

Authorization cards are small cards signed by employees authorizing the union to act on behalf of the employee even though that employee is not a member of the union. These cards are contracts and cannot be undone. When enough authorization cards are signed (no matter what the employee was told to get his signature on the card), the union can demand an election to determine whether a majority of employees desire union representation.

Sometimes unions will have an informational session, serve pizza and beer, talk about the union, and at the end of the evening ask people to “sign this card” if you want to learn more about the union, be on the union’s mailing list, receive an invitation to the union’s summer picnic, etc. While employees may honestly just want to learn more about the union, unions can use those signatures to have the NLRB schedule a union election or worst. Before you know it, your company is organized all because some workers thought they were signing up to receive an invitation to the union’s summer picnic.

Here’s the “or worst”: Unions can (and do) get trickier with authorization cards than just scheduling a secret ballot election. They sometimes walk into the owner’s office with a box of cards, dump the cards on her desk, tell her that the union represents a majority of her employees, and asks her for dates to start negotiating a first contract. This is called organizing through card check. Executives in this situation should not touch the box or look at the cards. Rather, tell the union representative she denies his assertion and to leave the company’s premises. Employers should not know who signed authorization cards, so company executives should never pick up the cards and begin to read the signatures.

An employer that claims a signed authorization card does not reflect his current feelings towards unionization must prove he had a change of heart. However, authorization cards are valid for up to 1 year after they are signed, so despite the employee’s change of heart, an election may still be held. In fact, employees oftentimes ask for their authorization cards back only to have unions refuse to return them because their cards are needed to meet the minimum number of cards signed to trigger a union election.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at 614.285.5342 or email him at Austin@LaborEmploymentOSHA.com.

Negotiating a Union Contract – Day One

You just finished a hard fought union campaign, lost, and now have to bargain with the union for a collective bargaining agreement. The next step in the process is the first day of contract bargaining with the union who now represents your employees. The election featured a lot of mudslinging and uncomfortable situations and you feel betrayed by your employees.

In this situation some companies decide to negotiate on their own without legal counsel. This go-it-alone strategy is generally more expensive because companies unknowingly commit unfair labor practices or don’t realize that they negotiated contract terms that cost outrageous sums to comply with. In the end, companies either succumb to the demands of the union, hire a labor lawyer after the process has begun, or close shop.

The Union is in a completely different position at this point. It feels empowered and sees itself as being in control. The union also has strength in numbers. For example, your company has 4 front office employees but 100 bargaining unit members represented by the union. Once negotiations commence, the union will smugly remind you that your employees voted against you when they chose to unionize.

The physical location of the first day of contract bargaining can take place at your company headquarters. However, this is not in your best interest; you should limit the time a union representative is on your property and has access to your workforce. Another alternative is the union hiring hall but this location is also not ideal. The best scenario is to meet at a conference room in a hotel, airport, or nearby neutral facility.

Across the table from the company is a union representative and usually between 2 and 6 company employees who make up the bargaining committee. If you have legal counsel then your lawyer will be at the table joined by one or two senior personnel who know how the company runs, i.e. COO, HR, or plant manager. The ground rules for the negotiations such as dates and times of meetings, whether to negotiation economic proposals first or last, etc. are not predetermined; they are set at the first meeting. The parties also decide who makes the first proposal or if simultaneous proposals are made. A feeling out process naturally occurs during these talks.

The best way to deal with the situation described above is to avoid it. Contact Austin Legal for information on union avoidance training or to represent your company during a union organizing campaign to better your chances of staying union free.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at 614.285.5342 or email him at Austin@LaborEmploymentOSHA.com.