Better Bargaining-Contract Must Haves

Better BargainingContract Must-Haves

While every contract and negotiation session is different, here are three basic elements that should be included in every contract to make sure all members are treated fairly. MEA believes the following items must be included and/or never removed as language in ALL contracts:

Just Cause

Just Cause means the employer must have a reason to act and the reason must be just and fair when disciplining or dismissing an employee. Just Cause language protects an employee from unfair or arbitrary treatment in the workplace. An employer must have substantial proof an employee was in the wrong, violating a policy or rule, etc., to discipline or terminate. Just cause considerations include that the employee was aware the conduct would be unacceptable; employer rules/orders are reasonable; a fair investigation is conducted; adherence to equal treatment (i.e., rules will be applied consistently); and there is an appropriate discipline/penalty (i.e. punishment fits the crime).

Sample contract language:

No employee shall be disciplined or deprived of any professional advantage without just cause. No teacher on a continuing contract shall be non-renewed without just cause. (Nonrenewal applies to teacher contracts only.)

Grievance Process with Binding Arbitration

A Grievance Process ending in binding arbitration allows the Local Association to make sure the terms and conditions agreed to in the contract are followed by the parties. If there has been a violation of the contract, a grievance can be filed. A grievance can be filed by the grievant(s) – member(s) impacted – and/or Local Association depending upon your contract language. The grievance process usually begins at the supervisor or building level and then escalates to higher levels of administration unless a resolution is reached. The process is meant to resolve problems in a manner that is acceptable to all parties. If resolution does not occur, the parties have a right to submit the case to arbitration where a neutral third party will reach a binding decision regarding the alleged violation.

Sample contract language: In the event a grievance is not satisfactorily resolved during the grievance process, the Association will serve written notice on the employer moving the matter to arbitration. The parties shall confer within ten (10) days to select an arbitrator deemed to be competent, experienced, and impartial. Should the parties be unable to agree upon an arbitrator, the grievance will be immediately referred to the American Arbitration Association/Labor Relations Connection for resolution by a single arbitrator in accordance with the procedures, rules, and regulations of that Association. The arbitrator's decision as to whether there has been a violation of this Agreement shall be final and binding on the Board, the Association, and any and all affected employees.

All contracts must include a wage/salary language and scale. Wage/salary language is usually found in the body of the contract and includes agreements on initial placement on the scale (i.e., how prior experience will be treated), step progression (i.e. move a step per year, when does that occur), how often and when pay days occur, shift or other differentials added to wage rates (i.e., night, BCP/TCI, etc...), lane change requirements and pay supplements (i.e., National Board). The wage/salary scale is referenced in the wage/salary language but often are found in the Appendix of the contract, with a different scale for each year of the contract. Best practices and what MEA recommends for scale structures include: 1. The top of the scale (highest rate) on the scale is reached as soon as possible. The scale should match the expected career trajectory for the position. When a position has been mastered, the person should be at the top of the scale.

For instance, current literature for teachers shows mastery of the craft – say, when a teacher is comfortable teaching another teacher how to teach – at 7 to 10 years of experience.

MEA recommends 10 years maximum to the top as a goal.

2. That the top of the scale rate be a professional, fair and competitive rate for the position.

Recognition Clause-Technical Must Have

A recognition clause is the foundation of the contract as it identifies who the parties (i.e. Local Association and employer) to the agreement are, what positions are covered under the contract – the bargaining unit – and recognizes the Local Association as the exclusive bargaining agent and representative of the identified group of employees. The clause may also identify positions excluded from the terms of the contract as well as how newly created positions will be handled. Initially, the recognition clause details come from how the bargaining unit was first formed either through voluntary agreement, Labor Board determination/election or card check recognition processes. The Maine Labor Relations Board (MLRB) for public employees and the National Labor Relations Board (NLRB) for private employees administer these processes. Once established, the parties to the contract can agree to amend who is covered by the contract through negotiations – it is a permissive subject of negotiations. If agreement cannot be reached, the MLRB/NLRB unit clarification and determination processes are utilized to decide the matter. 3. That the scale structure be indexed. An indexed scale can be implemented in different ways but the key is the function of the index keeps the whole scale up with inflation over time. When a cost of living increase is applied to an indexed scale, each step or level goes up by the increase, allowing each experience step not to lose purchasing power over time if an adequate cost of living increase is negotiated.

4. The bottom of the scale (lowest rate) is competitive and provides a minimal living standard. The lowest rate keeps up with any required minimum wage or salary rates in law after indexing for inflation each year. 5. Career earnings are maximized. Career earnings are a measurement of the strength of the scale as a whole. The measurement takes into account the starting rate on the scale, the top rate, how many years it takes to get from starting to top, the step increments in between starting and top, and even lane changes for teacher contracts.

Comparing the career earnings from year to year also considers the cost-of-living increases.

If a new position is created, the employer does not get to unilaterally determine if the position is or is not in an existing bargaining unit. If the Local Association and employer cannot agree on the status of the new position, the MLRB/NLRB processes are used to determine if the position is included in the recognition or not. A fact-based community-of-interest test is used by the MLRB/NLRB to decide the issue.

If the Association or employer wishes to include an existing position in the bargaining unit during the term of the contract, the parties must either mutually agree to the change or wait until negotiations to address it, unless the position has substantially changed since last negotiations. If the position has substantially changed, it follows the new position process. If the parties cannot agree on inclusion of an existing position that has not substantially changed, a party must first raise the issue and attempt to negotiate it at the next round of negotiations. If resolution is not reached through bargaining, then the MLRB/ NLRB processes can be utilized.

Sample contract language: RECOGNITION A. The (town/city/RSU/university/college) Committee (the Committee) hereby recognizes the (Local Name) Education Association/MEA-NEA (the Association) as the exclusive bargaining agent and representative for the (name of bargaining unit). This unit includes employees in any of the following positions: (list positions) B. The Committee agrees not to negotiate with or recognize any organization other than the Association for the duration of this agreement unless as otherwise provided for in Title 26 MRSA, Chapter 9A as amended. C. New Positions: If the School Committee creates a new professional position, it shall notify the President of the Association by email. The School Committee or its designee(s), if requested in writing by the President of the Association, shall meet to determine whether the new position shall be added to the bargaining unit. Absent mutual agreement, either the School Committee or the Association may request a determination by the Maine Labor Relations Board.