Anatomy of a CBA. Often Neglected and Ignored. Understanding Your CBA. ACSA Personnel Institute. Often Neglected and Ignored.

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1 Anatomy of a CBA ACSA Personnel Institute October 6, 2016 Presented by: Sarah Kaatz Understanding Your CBA Often Neglected and Ignored Just BeClause The Vital Organs Spare Parts Often Neglected and Ignored 1

2 Duration of Contract Multiple year agreements versus one year agreements Three Year Maximum Appalachian Shale Agreements Update your dates! Recognition Article This provision recognizes the union as the exclusive bargaining agent for all employees in the bargaining unit. States who is considered in the unit. May: State all new positions are presumed in the unit State categories excluded State positions excluded Recognition Article CSEA Policy 610 (the Clovis case) The negotiated agreement must generally be executed by both the local chapter and state association. Protocol for ratifying tentative agreements involves submitting the agreement to the local representative, who will pass it on to the chapter president before the unit members convene to ratify or reject the agreement. In the Clovis case, the CBA listed the exclusive representative as CSEA and it s chapter. Would the result be the same if CBA only mentioned the chapter? (California School Employees Association- Chapter 250 v. Clovis Unified School District (2002) PERB Dec. No ) 2

3 Organizational Security Addresses dues collection Members Service fee payers Religious exemption Hold harmless Make sure you have it! Union Rights and Responsibilities Details the Union s rights, such as: Release time Officers Negotiations Process for requesting or approving leave for organizational activities Mailboxes/bulletin boards Use of buildings/equipment AB 2835: Public Union Orientation Meetings 9 3

4 Management Rights Do you have an article? May include: Hiring additional employees to do bargaining unit work School curriculum Times and hours of operation The number and kinds of personnel needed Establishing educational policies, goals, and objectives Budget procedures and methods to raise revenue Reserves all managerial rights and prerogatives May still need to bargain the effects of the decision Savings Provision Example: If during the life of this Agreement there exists any applicable law or any applicable rule, regulation, or order issued by governmental authority other than the District which shall render invalid or restrain compliance with or enforcement of any provision of this Agreement, such provision shall be immediately suspended and be of no effect hereunder so long as such law, rule, regulation, or other shall remain in effect. Such invalidation of a part or portion of this Agreement shall not invalidate any remaining portions which shall continue in full force and effect. Effect of Agreement Example: It is agreed and understood that the specific provisions contained in this Agreement shall prevail over District practices and procedures and over state laws to the extent permitted by state law and that in the absence of specific provisions in this Agreement such practice and procedures are discretionary on the part of the District. 4

5 Support of Agreement Example: The District and the Association agree that their mutual benefit to encourage the resolution of differences through the meet and negotiation process. Therefore, it is agreed that the Association will support this Agreement for its term and that negotiations will be conducted only at the negotiating table. Just BeClause Crazy But Common Clauses Calendar Not included in all CBAs Why might you want it in yours? What is and isn t negotiable? Often in hours/workday 5

6 Escalator Clause Sometimes called a salary formula Self executing Fair Share Contingency language Pros/Cons Most Favored Nations Clause (AKA Me, too! ) Gives the union the opportunity to share in a more favorable settlement if it is given to another unit or group. Define it well! Does it apply to other units or also to management/contracted employees? Is it given to another unit or group. Is it salary only? Often used when employer settles early with one union while negotiations continue with other unions. In contract or just in Tentative Agreement? Down side: Leverage! No-Strike Clause Also referred to as a no-concerted activities clause The union promises that during the life of the CBA, the employees and union will not engage in strikes, slowdowns, sickouts, or other job actions. May also include an agreement by the District to not engage in any form of lockout of employees during the term of the agreement. Evaporates upon expiration of the CBA 6

7 Re-Opener Clause Usually in Negotiations Article States how many articles may be opened each year by each party May include timelines Zipper Clause Zipper clause should state that the written CBA is the complete agreement of the parties and that anything not contained in the written agreement is not agreed to and is not part of the agreement. Intended to stop either party from demanding renewed negotiations during the life of the agreement. Limits grievance arbitrator s ability to consider evidence beyond the written contents of the CBA. Normally expires with the contract. Zipper Clause Providing notice and an opportunity to negotiate a change in policy or addition of a new policy is insufficient when a zipper clause is in place. If a zipper clause is in place, the Association will be under no obligation to request bargaining over proposed changes. Each party voluntarily waived the right to meet and confer in good faith with respect to any subject or matter referred to or covered in the agreement. (San Bernardino County Public Attorneys Association v. County of San Bernardino (Office of the Public Defender) (2015) PERB Dec. No M.) 7

8 Past Practice Clause The opposite of a zipper clause. States that the previous practices of the employer will continue during the term of the CBA, unless modified by the language of the agreement. The Appendix Taking the Appendix Out Look at the Appendix before you sunshine Move MOU s or Side Letters into the Contract, if appropriate Remove them if they don t 8

9 Have Your Appendix Examined Salary Schedules and Stipends Lists of Classifications Grievance Forms Evaluation Forms The Vital Organs The Vital Organs Salary/ Compensation Benefits Hours/ Workday Leaves Transfers/ Reassignments Evaluation Grievance Negotiations 9

10 The Vital Organs Vacation/ Holidays (Classified) Layoff/ Reduction in Hours (Classified) Discipline (Classified) Class Size (Certificated) Spare Parts Connective Tissue or Surplus? Non Discrimination Safety Job Sharing Professional Growth Personnel Files Retirement (Willie Brown) Special Groups Transportation ECE Adult Education 10

11 And in the End. Sick CBA s never die. Surgical correction is the only option. Questions Sarah Kaatz Partner, Monterey Office. Sarah Levitan Kaatz is a Partner in Lozano Smith's Monterey office. She specializes in labor and employment law and student issues for school districts. Ms. Kaatz spent two years with the U.S. Department of Labor in its Office of Administrative Hearings before joining Lozano Smith. Since joining Lozano Smith in 1999, Ms. Kaatz has advised K-12 school districts and community college districts with regard to classified and certificated employment issues, labor relations and student related concerns

12 Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact or call (559) Copyright 2016 Lozano Smith All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client