Managing Unionized Workplaces in an Economic Downturn – The New Realities September 23, 2008...

Managing Unionized Workplacesin an Economic Downturn –

The New Realities September 23, 2008Boston Harbor Hotel

Jay P. Krupin

Ana S. Salper

Barry A. Guryan

Paul Rosenberg

© Copyright 2008, Epstein Becker & Green, P.C.

www.ebglaw.com

The First Principle

Negotiate Zero-Sum Contracts


The mind-set for negotiations– employer has all the rights– CBA is a restriction of those rights– be on the offensive– opportunity to improve operations through

negotiations– increase apprehension, decrease expectation– the triangle of the parties


No such thing as "non-economic" issues– everything costs money– always mix together during negotiations– use union perception of "economics" to your

advantage


Who, Where, When– who sits at the "table"– where should the negotiations take place– timing of sessions– 90-60 days– 30 day FMCS


Using " ad referendum"– decision-maker generally not present at

negotiations– avoid committing at table– use decision-maker as villain or hero as needed


Drafting employer proposals– develop from "wish list"– detailed, written and organized– seek to improve language and ability to operate– don't ask for rights you already have– who goes first


Education equals credibility– provide reasoning for each proposal– develop strategy for entire course of

negotiations– bring "tools" of negotiations


Costing out and calculating– controller armed with calculator– every penny counts– putting union on defensive to justify proposals– costing out of union proposal


Mixing and matching proposals– union's strategy to separate– economic and non-economic should be mixed– keep union off-balance


The bargaining committee– don't make negotiations desirable

activity– paying union bargaining committee

members– addressing particular needs of members

to "seal the deal"


The Final Four– critical "must have" proposals should

be identified– negotiate towards securing these

changes


Information requests– employer and union entitled to make– employer can use offensively and

defensively– must always respond, but can object to

unreasonable requests– tactic to combat ULP charge


Communicating with Employees– update on progress– address misrepresentations and

misunderstandings– do's and don'ts of employee

communications

The Second Principle

Train Managers on Contract Interpretation


Using management rights– establishing standards, policies and

rules– subcontracting or closing operations– run business first mentality– all rights not specified in CBA revert to

Employer


The past practice trap– meaning of past practice– avoid letting union take advantage of

managers– training managers to develop past

practice– using past practice offensively


Timelines and deadlines– must know and enforce grievance and

arbitration deadlines– should be well aware of probationary

periods– track eligibility periods for benefits


Cause - just, reasonable, good– understanding meaning– establishing cause– consistent application of policies and

procedures - prove through documentation


Accrued, earned, vested – understanding, and not exceeding,

benefit entitlements


The right way to document– detailed disciplinary documentation

with appropriate attachments – signed witness statements– in grievances/arbitrations, let

documentation tell your "story"– "blue ribbon" last chance warning


Responding to union baiting– knowledge of contract and management

rights will prevail– control workplace– work now, grieve later

The Third Principle

Restrict Union Interference


The rules for union access– notice requirements– limiting purpose of visits– defining rights in contract


Filing grievances against the union– abuse of grievance procedure– violation or abuse of access clause– violation of no-solicitation policies– other abuses


Stopping union abuses of process– through grievances or unfair labor practice

charges– denial of rights (e.g., union access)– giving union representatives the "respect" they

earn– control the workplace


Limiting the shop stewards’ role– limit union activities during work-time– treat same as other employees unless contract

dictates otherwise– leave no doubt as to who is "boss"– never pay for time spent on union issues


Joint Management-Labor Committees– CBA should be "living" agreement– improve relationship– reduce issues to be addressed at negotiations


Attempt to Organize Non-Union Employees- target to expand union membership- Neutrality Agreement- accretion issues- integration of business operations- No Solicitation/No Distribution Policy- Top Ten list- 15 minute rule


Health Insurance and Pension Funds- controlling costs- bane of union funds- opt-out provisions- withdrawal liability- eligibility requirements- defending audits

The Fourth Principle

Handle Grievances and Win Arbitrations


The truth about Weingarten rights– when they apply– limit on interference from union– err on side of honoring


Contract issues only– not every "gripe" is a grievance– must require reference to specific contract

provision(s) violated– deny improper grievances in writing


Strict adherence to the rules– negotiate favorable procedures with detailed

requirements– force union to adhere to written procedures– deny grievances when union fails to adhere,

even for technical deficiencies


Time limits– enforce strictly and consistently in writing– avoiding waiver– creating past practice


Analyzing the Grievance - every end a means– prospects of winning - did you do everything

right?– may be more to grievance than "meets the eye"– think like the union when analyzing grievance– consider all consequences and costs


Consistency– key to winning– creates expectations– supported by documentation and examples


"Deny" is not a four-letter word– forcing union's "hand"– creating favorable past practice– supporting supervisors


When the union protects itself– duty of fair representation– making union's job "easier" when it comes to

refusing to proceed– helping union find an "out"


How to choose the arbitrator– employment history– record in similar cases– relevant personal characteristics


Limitations on the arbitrator– strict adherence to the CBA– decision only affects the grievant– limits on back-pay

The Fifth Principle

Address Employee Dissatisfaction with the Union


Not the " Roach Motel"– unions are not forever– employees have right to terminate

representation


Objective, good-faith evidence– union is never around– no grievances filed– employee complaints about union


Employee initiated activity– communications with management– filing a petition for election with NLRB– passing around "petition" disclaiming the

union


Employee initiated activity– filing petition for election with NLRB– decertifying based on employee petition


Acceptable communication– responding to employee expressions of

dissatisfaction– referring employees to NLRB for advice


Avoiding unfair labor practices– being aggressive but smart– advising employees who no longer want union

representation


Timing is everything– election– decertification petition


The rest of the contract– duty to honor– timing considerations

Managing Unionized Workplaces in an Economic Downturn – The New Realities September 23, 2008...

Documents

Transcript of Managing Unionized Workplaces in an Economic Downturn – The New Realities September 23, 2008...