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How to Keep an Easy and Open Employment Relationship in Changing Times; Use the Technology You Already Have to Make Your Life Easier

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June 01, 2003
Legal Corner
Daniel T. Berkley

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© 2003 Hospitality Upgrade. No reproduction without written permission.

Sometimes the technology you need to make your life better is right under your nose – literally. The computer that you already have can set up reminders and help you plan for the future to save you time and money in the long run.

There can be no doubt that unionization often turns an easy and open employment relationship into a complicated one. Most employers wrestling with the rights and demands of a represented workforce fantasize regularly about their lost ability to act freely and find themselves struggling against the union in frustration. We notice, though, that employers have a real talent for making their experience worse than it has to be, because they ignore two vital obligations: (1) the duty to bargain in good faith over the terms and conditions of employment, and (2) the duty to properly implement the collective bargaining agreement between the employer and the union.

The duty to bargain in good faith over the terms and conditions of employment means that an employer must negotiate with the union over the so-called mandatory subjects of bargaining meaning, terms and conditions of employment such as wages, benefits, job duties and plant closings or layoffs, among others. Agreements on these issues are memorialized in a collective bargaining agreement.

Under ordinary circumstances, a unionized employer may not unilaterally impose changes in the terms and conditions of employment. This applies during negotiations and after a collective bargaining agreement is reached. In the event that an employer feels compelled to make changes in the way its business operates that will effect the terms and conditions of employment of the unionized employees, the employer is required to provide the union with notice of the desired change and an opportunity to negotiate.

Many employers fear this obligation, because the collective bargaining process can be a long one. After all, who has the time for a long debate when you are trying to run a business? But, employers who implement changes on their own open a Pandora’s box of unfair labor practice charges, grievances and other time-consuming procedural entanglements that can be avoided through the use of proper procedures.

Unless the changes you propose are onerous, the process can be a simple one if you start by submitting an explanatory memo to the union advising them of the proposed change. You may, cautiously, provide a reasonable deadline for comments from the union, and implement the change if no comments or objections are received by that date. Be sure to calendar the deadline and any meetings that arise through the process, and stick with the schedule to streamline the process.

Once the terms and conditions of employment are settled, it is very important to get the contract finalized as quickly as possible in order to avoid the accrual of retroactive economic benefits. It is best to take charge of the process and not rely on the union to get it done. This will save you time and money. Remember: The union has no incentive to get the contract finalized, because the union will not suffer economically if it is not.

The second obligation we mentioned above is proper implementation. The more proactive and knowledgeable an employer is about the collective bargaining agreement and how it operates, the easier and less expensive it is to deal with in terms of dealing with union complaints. (Yes, and you will pay less in attorneys’ fees.) The key: You must completely understand the agreement before you put it into effect.

To start with, make sure you have all of the pieces. Collective bargaining agreements are usually comprised of several parts: the contract itself, any number of addenda, side letters, exhibits or attachments and all the documents referred to in the contract (such as pension trust agreements and benefits plans). If you do not have all the pieces, you will not know what your obligations are. If your attorney does not have them get them from the union. Once you have compiled the documents, store them together or, better yet, scan them so that you have them in a single computer file that you can wordsearch.

Next, read the contract and all of its components through from start to finish and make note of anything that you have promised to do, say or pay and the corresponding deadlines. Enter these dates, rates and duties into your calendaring system so that you do not miss any. For example, if your agreement promises a wage increase on May 1, 2005, enter that date into your calendaring system now so that you will not forget to budget for the increase and implement it when the time comes. Similarly, if you know that your pension contributions are supposed to increase on December 1, 2004, for example, calendar that event so that you can verify that the pension administrators are putting the right rates into effect.

Remember: Just because the pension plan doesn’t bill you properly doesn’t mean that you don’t owe the money. You do. Unfortunately they may also charge you interest when they realize that they have been under-billing you. So, save yourself some money in the long term, and make sure that you monitor the providers and troubleshoot their invoices.

Finally, a recommendation from one of our clients to you: Use your calendaring system to track probationary/introductory period employees. Don’t let a problem employee slip through to “regular employment” just because you forgot the date the probationary period ends. Make use of computerized systems for all of these important reminders, and your life will get much easier.

Melissa Calhoon and Daniel T. Berkley are both of the Berkley Law Group, P.C. and can be reached at (415) 989-7711 or at info@berkleylawgroup.com.

© Hospitality Upgrade 2003. Reproduction without written permission is prohibited.

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