TO ADOPT AND AVOID ESICA/CSIA FALL CONFERENCE September 2007 Bob Dunlevey

1. CONTRACT CLAUSES TO ADOPT AND AVOID ESICA/CSIA FALL CONFERENCE September 2007 Bob Dunlevey Board Certified Specialist in Labor and Employment Law Dunlevey, Mahan & Furry

2. TODAY’S TOPICS • Bargaining topics previously covered • a quick review • How to write sound contract language • Clauses to avoid/adopt • Merger agreements • Labor-management cooperative trust and more … Dunlevey, Mahan & Furry

3. MULTI-EMPLOYER BARGAINING AND Section 9(a) CSIA/ESICA FALL CONFERENCE September 2005 Bob Dunlevey rtd@dmfdayton.com Dunlevey, Mahan & Furry

4. Bargaining relationships • Methods of determining representation under 9(a) • Forms of negotiations • Assignment of bargaining rights • 8(f) Deklewa • Pros/cons of multi-employer bargaining • Pros/cons of single employer bargaining • Pros/cons of coordinated bargaining • Reasons for multi-employer withdrawal Dunlevey, Mahan & Furry

5. EFFECTIVE COLLECTIVE BARGAINING STRATEGIES ESICA SPRING CONFERENCE May 2007 Bob Dunlevey Board Certified Specialist in Labor and Employment Law Dunlevey, Mahan & Furry

6. EFFECTIVE COLLECTIVE BARGAINING • Understanding the Bargaining Relationship • Effective Preparation for Negotiations Selecting the Form of Bargaining Establishing your Labor Relations Policy Gathering Background Information Input from the Management Team Preparing the Chief Negotiator’s “Bargaining Book” The Position Statement The Model Agreement Conditioning the Bargaining Unit Consult Counsel Recent Developments/Trends/Statistics Dunlevey, Mahan & Furry

7. EFFECTIVE COLLECTIVE BARGAINING • The Law of Collective Bargaining The Obligation to Bargain Procedural Requirements for Bargaining Midterm Changes in Contract Terms Subjects of Bargaining Bad Faith Bargaining Misconduct Terminating the Bargaining Relationship • Bargaining Table Conduct Dunlevey, Mahan & Furry

8. TODAY’S TOPICS • Bargaining topics previously covered • a quick review • How to write sound contract language • Clauses to avoid/adopt • Merger agreements • Labor-management cooperative trust and more … Dunlevey, Mahan & Furry

9. HINTS FOR DRAFTING • Write with clarity and precision so that all who read will understand • Be uniform in the terms used • Always shoulder the burden of drafting proposals, alternate language, and final agreements The Employers further agree that on all operations outside of the chartered territory of the Union they will abide by the rates of pay, rules, and working conditions established by collective bargaining agreements between the local insulation contractors and the local union in the jurisdiction. Dunlevey, Mahan & Furry

10. HINTS … • Present all proposals in writing • Utilize a logical sequence for your agreement, starting with the recognition of the union and ending with the duration and termination provisions • Use descriptive headings and number each section and subsection – include a table of contents ARTICLE III WORK REQUIREMENTS Section 1: Work Week and Work Day Dunlevey, Mahan & Furry

11. HINTS … • Define frequently used terms and concepts and always use the same phrasing when referring to the same concept • Be specific when referring to other sections of the agreement – identify the actual section by title and numerical caption The Contractor and the Union shall mutually agree that on any project that dictates the starting and quitting times may be changed for all or any of a particular job providing the work is maintenance type work on existing industrial structures. Except for approved project agreements this section does not apply for independent facilities. Dunlevey, Mahan & Furry

12. HINTS … • Do not include “bleeding heart” clauses on philosophy which an arbitrator could seize upon to impose equity as opposed to following the contract The Employer is privileged to send the Mechanic (job foreman) as outlined above, but cannot bring a Mechanic (job foreman) into an area … In recognition of their commitment to the highest standards of their industry, the parties hereby adopt and incorporate the terms of the Professional Craftsman Code of Conduct. Dunlevey, Mahan & Furry

13. HINTS … • Avoid extra words which mean nothing • Have model clauses available • Have a bargaining manual with you • Know the law of bargaining or have a consultant available It is mutually agreed, understood and acknowledged that the Union is the sole and exclusive bargaining representative of Employees. Dunlevey, Mahan & Furry

14. HINTS … • Be mindful of bargaining trends • Second guess your language before proposing • Be patient when drafting! • Don’t leave the table without a signed agreement • Proofread final contract Dunlevey, Mahan & Furry

15. CLAUSES TO AVOID • Wage deferral • “Agree-to-Agree” • Just cause for termination If the Employer so elects, he may work shift work at a rate negotiated in the applicable agreements. If the agreements do not contain rates pertaining to shift work, the parties shall negotiate such shift rates at the pre-job conference. The Employer expressly adopts and consents to any Delinquency Collection and Enforcement Policy, as may be adopted from time to time by the Trustees, including liquidated damages. Dunlevey, Mahan & Furry

16. AVOID … • Industry funds – restrictions on expenditures Association agrees to promote programs of industry education, training, negotiation and administration of collective bargaining agreement, research and promotion, such programs serving to expand the market for the services of the sheet metal industry, improve the technical and business skills of employers, stabilize and improve Employer-Union relations, and promote, support, and improve the employment opportunities for employees. No part of these payments to the Association, however, shall be used for any purpose except as expressly specified above. Dunlevey, Mahan & Furry

17. AVOID … • Anti-dual shop If the Employer performs on-site construction work of the type covered by this Agreement, under its own name or the name of another, as a corporation, company, partnership, or other business entity, including a joint venture, wherein the Employer, through its officers, directors, partners, owners, or stockholders exercises directly or indirectly (including but not limited to management, control, or majority ownership through family members), management, control, or majority ownership, the terms and conditions of this Agreement shall be applicable to all such work. Dunlevey, Mahan & Furry

18. AVOID … • Featherbedding • Political action committee check-off • Work preservation clauses The Employer agrees that during periods of unemployment unnecessary or nonessential overtime will not be worked. To protect and preserve for the Building Trades employees covered by this Agreement all work they have performed and all work covered by the Agreement, and to prevent any device or subterfuge to avoid the protection and preservation of such work, it is agreed that all of the work requiring sketching and fabrication shall be performed by employees hereunder, either in the shop or on the jobsite within the geographical jurisdiction of [Local 38]. Dunlevey, Mahan & Furry

19. AVOID … • Deferral to union to interpret meaning • Notification of union by tradesperson Interpretation of Sections A and B of this Article to be made by the Union Business Manager. If the Contractor is unable to agree with the Union’s interpretation, then the matter is to be decided by the Joint Trade Board. Then the Apprentice may finish out that regular work day only, performing whatever work he is capable of doing at Mechanics rate of pay and only after notifying the Business Manager within that day of commencing said work. Should material transporting be required outside of the regular work day or work week, prior notification must be given to the Business Manager and such work shall be paid for on an overtime basis as described in Article 3, within. Dunlevey, Mahan & Furry

20. AVOID … • Incorporation of codes of workmanship All materials shall be applied as prescribed in the Code of Workmanship unless a set of specifications or work orders are given to the job leader. Dunlevey, Mahan & Furry

21. AVOID … • International Association’s Professional Craftsman Code of Conduct implementation program to promote jobsite excellence and customer satisfaction • Q.C. Craftsman The QCC shall have full responsibility for communicating the Professional Craftsman Code of Conduct to all members, and insuring all members are fully meeting their responsibility to our Professional Craftsman Code of Conduct. Dunlevey, Mahan & Furry

22. AVOID … • Incorporation of constitutions/by-laws • Incorporation of state and federal laws and regulations • Insurance benefits defined • Letters of intent • Bargaining re-openers • Interest arbitration Dunlevey, Mahan & Furry

23. CLAUSES TO INCLUDE • Most favored nation The union agrees that should it or its international union and/or its affiliates suffer, permit, or enter into a contract, agreement, understanding, or condition with any employer or group of employers in the jurisdiction which contract, agreement, understanding, or condition is more favorable to that employer or group of employers than the terms herein set forth, such more favorable terms shall immediately be deemed to have been incorporated into this agreement and applied to employers doing that type or similar work as the employer or group of employers to whom the more favorable terms have been granted, directly or indirectly. The union agrees to furnish immediately to the employer a copy of any agreement containing any such more favorable conditions. Dunlevey, Mahan & Furry

24. INCLUDE … • Comprehensive management rights Dunlevey, Mahan & Furry

25. INCLUDE … • Market recovery • Hiring hall • Versus referral hall • Rejection of applicants The Employer retains the right to reject any employees referred by the Union; however, such rejection shall be based solely upon workmanship and/or qualification, and in no way be based upon union membership. Dunlevey, Mahan & Furry

26. INCLUDE … • Hiring hall contd. • Discharge without just cause • Key man call The Employer shall have the right to request a minimum number of key employees who may consist of a general foreman and leadman. In addition, the Employer shall have the right to recall from the out-of-work list any journeyman, so long as such journeyman was employed by the Employer within the past 12 months. In addition, the Employer may request in writing from the out-of-work list employees with specific skills, qualifications and abilities. Dunlevey, Mahan & Furry

27. INCLUDE … • Hiring hall contd. • Minimum training, experience, longevity • Right to hire tradesmen (trainees) from street • Indemnification • Work rules (right to promulgate) Dunlevey, Mahan & Furry

28. INCLUDE … • Helpers/sub-journeymen/trainees • Section 1. Classified workers may be employed in the following ratio and the Employer may use a pre-apprentice instead, as long as the overall workforce ratios of apprentices to classified workers/pre-apprentices remain the same. If an apprentice is not available for referral as per Article XI, Section 4 of this Agreement, the Employer may hire a classified worker that will apply to the ratio as defined by this contract in the same manner as an apprentice would apply; nor will it be mandatory that an unemployed apprentice displace this classified worker: • One classified worker for any Employer who employs an apprentice; • Two classified workers for any Employer who employs at least three apprentices; • Thereafter, the ratio will be one classified worker for each additional three apprentices employed. • Section 2. Classified workers may perform any work covered by Article I of which they are capable and will work under the general direction of a journeyman. Dunlevey, Mahan & Furry

29. INCLUDE … • Qualifications for receiving holiday pay • Direct deposit • Payment of travel expenses only if expended and receipt provided • Initial safety training at employee’s expense Dunlevey, Mahan & Furry

30. INCLUDE … • Defined contribution pension • No increase in pay or deferral of benefits if any unfunded vested liability • Automation/restrictions In the event the Fund requires any increase in contributions beyond the current level, contractor shall sustain nothing more in cost but instead additional contributions shall come from … Dunlevey, Mahan & Furry

31. INCLUDE … • Zipper clause This contract sets forth the entire understanding and agreement of the parties and may be modified only by written agreement of the parties. This agreement supersedes all prior agreements, commitments, and practices, whether oral or written. The parties each voluntarily and unqualifiedly waive the right to bargain collectively with respect to any subject or matter not specifically referred to or covered in this agreement for the duration of this contract, unless mutually agreed otherwise. Nothing in this contract shall be construed as requiring either party to do or refrain from doing anything not explicitly and expressly set forth in this contract, nor shall either party be deemed to have agreed or promised to do or refrain from doing anything unless this contract explicitly and expressly sets forth such agreement or promise. Dunlevey, Mahan & Furry

32. MERGER AGREEMENTS • Trend • Obligation to bargain • Complexities • Related agreements/issues • Trust funds • Appointment of Trustees • Apprenticeship program • Industry fund • Market recovery fund Dunlevey, Mahan & Furry

33. LABOR-MANAGEMENT COOPERATIVE TRUST • National Union Insulation Contractors Alliance 2002 • What it is • Requires re-opening • Its future Dunlevey, Mahan & Furry

35. As an afterthought to the preceding paragraphs, it is sincerely recommended and concluded that those parties not signatory to this Agreement will endeavor to abide by this Agreement and/or the legal rules and bylaws of the parties signatory to this Agreement. ARTICLE I JURISDICTIONAL AREA BRICKLAYERS LOCAL NO. 15 AREA 1: This Agreement shall be in effect in the following counties: Barbour, Doddridge, Gilmer Dunlevey, Mahan & Furry

36. VISIT OUR WEBSITE FOR MORE EMPLOYMENT LAW INFORMATION www.dmfdayton.com EMPLOYMENT LAW  WORKERS’ COMPENSATION  OSHA  WAGE-HOUR  NLRB  DISCRIMINATION  COLLECTIVE BARGAINING  EMPLOYMENT LITIGATION Aggressive, Responsive, Cost Effective Representation Dunlevey, Mahan & Furry