Need to bargain re: maintenance shutdown?

Jackie · July 2002

We have a union production force. Under the Vacation section of our contract, it states that management "has the option to shut down for 5 days each year before or after the 4th of July holiday." This is the only week when the employees are required to use vacation time if they don't work. We also have a mini-shutdown between Christmas & New Year's but it is not listed in the contract and employees are not req'd to use vacation if they don't want to.

We also have a clause in the contract stating Management "has the sole & exclusive right to.... schedule production."

We want to increase the summer shutdown to 10 days. Since we would not require employees to use vacation, I do not believe it needs to be negotiated with the union.

Do you agree?

Don D · July 2002

[font size="1" color="#FF0000"]LAST EDITED ON 07-12-02 AT 04:21PM (CST)[/font][p]Jackie: Yours is exactly, precisely the same situation as ours. We also have a union and a contractual agreement requiring the hourly ee's to retain at least two weeks of vacation for the two annual scheduled vacation shutdowns. This means they will not draw UI but will have the vacation pay to fall back on. This year, and some earlier years, we increased the shutdown by a week prior to July 4, making it a two week shutdown. One week of that, however, was termed a lay off due to lack of work, during which time they were eligible for UI if they had already served the waiting period, which some did last summer. During our two vacation shutdown weeks (July and December) that time does not count as a waiting period week nor do they draw UI. Those who have no accumulated vacation yet still are not eligible for UI since it is a designated vacation shutdown. We always notify UI in advance as well. Our Management Rights Clause, as yours does, also points out that the company reserves the right to schedule production. The union has no voice in our decision to add to the week of shutdown as long as we give them the required 48 hour shutdown notification. FYI, the union always tries to get us to schedule the UI staff out to our place to have all these claims taken, on the clock of course, which we will not do primarily because we do not know we are shutting down for the additional week far enough in advance for UI to arrange their workload. Good Luck.

Hatchetman · July 2002

[font size="1" color="#FF0000"]LAST EDITED ON 07-12-02 AT 04:43PM (CST)[/font][p]I'm a little confused. The provision is that the company, at its option can shutdown for 5 days either direclty before or after the July 4th holiday. That is the only time specified in the contract for the summer? Based upon your sole and exclusive right to schedule production, you're saying that you should have the right to shutdown for 10 days during the summer? Does the contract specificlaly call for the emplyees to be required to use vacation time or is that something that has become practice?

I am not a lawyer, and surely I am not an expert in reading labor contract language, but the experience I've had with labor contract language in my employee relations duties is that to the extent possible provisions are suppose to be read so that they are compatible.

If one provision limits the shutdown time to 5 days during the summer, and another general provision says management has the sole and exclusive right to production, the two are to be taken cconsistent with each other. Thus, I would think that you may not increase the shutdown days to 10 without re-negotiating the contract. That's because from my reading the general exclusive right provision is clearly limited by the more restrictive provision as it relates to the 5 shutdown days in the summer. While you can manage production as your exclusive right (assuming you do it reasonably), it is clear that you are not authorized to shutdown, under the contract, more than 5 days during the summer.

I would think that any change in the practice under a contract would probably require notice to the union if it is not specifically addressed in the contract.

Don D · July 2002

[font size="1" color="#FF0000"]LAST EDITED ON 07-12-02 AT 04:47PM (CST)[/font][p]The devil is in the details, Hatchet. The language says the company will have a 'vacation' shutdown twice a year, one week in July and one in December. The company reserves the right to schedule production and can shutdown at its option any time it wishes but just does not call it vacation shutdown. Its just a normal LOW otherwise. The vacation shutdown language precludes the receipt of UI in this state and assures them that they will expect at least two weeks annually which allows them a bit of planning, either for income or to actually go on vacation. We also give them a vacation bonus check anytime they are on vacation. There's no conflict in the contract language if its worded this way. If the company didn't have this authority, a company would go out of business if forced by a union to run production at times it should shut down.

Sunny · July 2002

I agree with Don. Our contract language also provides for 2 weeks of vacation to be scheduled by the Company for shutdowns. We regularly adjust the number of days (adding or subtracting) depending on production needs, how the holidays fall, etc. The only thing that does not change is the amount of vacation that they are required to save- five days for each shutdown. If we were to change the vacation language we would have to renogotiate, but we always have the right to schedule production.

WT · July 2002

Unless given up in the CBA, it is generally recognized that any company has the right to close down at any time. Employees would have the right to draw unemployment and WARN protections would also have to be considered depending on the length of the lay-off. The union could ask you to bargain the impact of shutting down but I do not believe you need advance permission to do so.

Jackie · July 2002

Thanks for all your responses! It always gives me more confidence to proceed in these matters.

Jackie in Iowa

Don D · July 2002

In Mississippi, and many other states, the law is very specific: An employee/claimant off from work due to a planned and announced company vacation shutdown is not eligible for unemployment insurance, nor does the shutdown week serve to satisfy the 'waiting period week'. A contract without a very specific and all inclusive 'Management Rights Clause', including the company's sole discretion in determining work schedules and production shutdowns, is not a wise idea at all. At arbitration and NLRB hearings (trials),I have not found much of anything to be "generally recognized" or "understood" and would recommend against counting on that premise unless you get a real employer friendly arbitrator or judge and, as Forest said, "Trials are like a box of chocolates".

Need to bargain re: maintenance shutdown?

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