Steward's Corner: Drafting Good Contract Language
Your union contract isn’t expected to win the Nobel Prize for Literature. But it does matter if it’s well written.
The goal is a contract that members can read. Member participation in enforcement starts with a contract which is reader-friendly. Don’t blindly include language without a critical review just because it was used for the previous contract.
So, if your local is holding a proposal meeting and you are on the bargaining committee, what is the first step in making your contract readable and easier for members to enforce?
Here are some general rules for drafting good contract language. I learned many of these principles at a Canadian Bar Association training:
1. Write for the member.
Use regular words—don’t be a vocabulary showoff. Don’t get too wordy, either. Ask yourself, can I reduce the sentence?
For example: In the event that employees are required to work overtime... is better rewritten as: If an employee is required to work overtime...
Singular is often better than plural, to avoid the misunderstanding that a group is required.
See the table for some examples of showy words and simpler ones to replace them.
2. Read each sentence out loud, to see if it will sound right being read in front of an arbitrator.
I always read to my wife because English is her second language. If she says, “What the bleep did you just say?” I know I was not clear.
Avoid tongue twisters and sentences that leave you out of breath. Imagine the arbitrator listening to you.
3. Write short, complete sentences.
Run-on sentences are a common mistake when drafting contract language. Here’s one, found in a seniority article of a Teamsters contract:
“When the ability and qualifications are equal, employees with the greatest seniority shall have preference in filling permanent full-time vacancies in the warehouse and for drivers when permanent full-time vacancies occur in a block of routes.”
First off, there are two very different classifications in the same sentence. This suggests two sentences are required.
4. Avoid vague generalities.
In the above example, “ability” and “qualifications” are undefined. In a warehouse, ability is pick rate. Unless the pick rate is bargained, the word should be dropped. “Qualifications” should refer to OSHA certification or manufacturer’s certification on forklift, high lift, etc. Instead of being vague, it should be narrowed to specific qualifications.
Similarly, drivers have CDL A and CDL B licenses with various endorsements like doubles, triples, hazmat, etc. Being more specific now means fewer arbitrations later.
5. Don’t use “legalese.”
Collective bargaining agreements are full of legalese: said, aforesaid, wherein, whereof, therein, thereof, hereinbefore, hereinafter, hereinunder.
Clearly the local’s attorney got involved. Who is the attorney writing for? Is hereinunder even a word? It’s not in my spell check, but it is in my Webster’s Unabridged. The goal is for the member to be able to read the contract comfortably, without having to check the dictionary over and over.
DROP NEEDLESS WORDS
It is sometimes thought that legalese makes things precise or legal. It does neither. On the contrary, legalese can be dangerously ambiguous, leading to unnecessary disputes. For instance, the word “hereunder” might mean:
anywhere in the whole agreement;
anything in the agreement after the word hereunder is used;
anything in the article or section in which the word appears.
The following examples of legalese were used in a Canadian Bar Association drafting training:
The aforesaid (is this word necessary?) provisions in this Article (just unnecessary)
March 19 A.D. 1990 (it could hardly be B.C.)
The terms of this agreement hereunder (just unnecessary)
The said article (unnecessary, or do you want to limit to “this” article?)
Any conclusion reached in the aforementioned negotiations shall be made retroactive to the said anniversary date of the said termination date (at least three unnecessary words)
Have the committee rewrite the sentence. Decide if you need a specific date, or if the anniversary date is a recurring event in the future.
6. Make your writing flow smoothly.
Organize it in a logical sequence. Use informative headings. Make a table of contents.
In a current Communications Workers contract I found the three paid personal days buried in the article on disability. I asked the head of the local why it was there, instead of under the article on time off. Clearly that should be fixed in the next round of bargaining.
If you have multiple classifications, try to complete one classification, such as warehouse, before moving to another, drivers. Don’t make members dizzy tracking down the clauses that apply to them.
7. Make the document attractive and design it for easy reading.
This is like leaflet writing 101: too much black ink and it just won’t be read. Spacing out the text makes it easier on the eyes.
Here’s an example of a section that could be spaced out:
Section G. The following shall constitute a serious infraction which may result in immediate termination: Proven dishonesty, including theft, unauthorized removal or possession of company or customer property; being under the influence of alcohol or of drugs while on work hours, including breaks and meal breaks or between jobs; refusal to submit for testing as required in the drug and alcohol testing policy shall establish a presumption of being under the influence of intoxicating alcohol or drugs; possession of alcohol or drugs while on duty or; recklessness resulting in a serious accident while on duty; physical assault on a company supervisor, customer, or co-worker while on duty; threat of physical assault on a company supervisor, customer, or co-worker while on duty; insubordination.
NUMBER THAT LIST
Spacing and numbering makes the contract easier to read. It also helps the union steer the employer to narrow the termination letter, so instead of “terminated for violation of Section G” it says “terminated for violation of Section G.3.” This way the steward knows what she is defending, and the employer can’t later throw in an assortment of other offenses under the same broad heading.
Section G. The following shall constitute a serious infraction which may result in immediate termination:
1. Proven dishonesty, including theft, unauthorized removal or possession of company or customer property;
2. being under the influence of alcohol or of drugs while on work hours, including breaks and meal breaks or between jobs;
3. refusal to submit for testing as required in the drug and alcohol testing policy shall establish a presumption of being under the influence of intoxicating alcohol or drugs;
4. possession of alcohol or drugs while on duty or;
5. recklessness resulting in a serious accident while on duty;
6. physical assault on a company supervisor, customer, or co-worker while on duty;
7. threat of physical assault on a company supervisor, customer, or co-worker while on duty;
8. May or shall?
From the above example: Section G. The following shall constitute a serious infraction which may result in immediate termination:
There’s a notion that using shall makes the contract stronger. But in the example above, the employer wants to use the word shall. The danger is that an arbitrator may say, “The contract limits my decision to termination, because the parties have agreed there shall be no penalty other than termination.”
9. Avoid saying “during the term of the agreement.”
This is a dangerous phrase.
“During the term of the agreement the employer will pay the premium cost of the insurance plan.”
It is not unusual for bargaining to continue beyond the contract expiration date. Often as part of the bargaining strategy the contract is allowed to expire along with the no-strike clause. This may advantage the union, if it is strike-ready.
The Labor Board generally requires the employer to maintain terms and conditions of employment until there is a new agreement or lawful impasse is reached. However, using the phrase “during the term of the agreement” means the obligation to pay the insurance premium ends. Now the employer has the advantage, by ending payment to the insurance plan and notifying the membership there is no more health care.
The single best tool is Drafting the Union Contract: A Handbook for the Management Negotiator (N. Peter Lareau, LexisNexis, ISBN 0-8205-1494-2). Don’t be put off by the title—the explanation of language and samples are clear and supported by arbitration decisions, Labor Board decisions, and various court rulings. Be put off by the current price: $771. Try a university law library.
Richard de Vries is a 25-year union representative at Teamsters Local 705 in Chicago (affiliation for identification purposes only). He teaches classes with the Rocky Mountain Labor School and always does various workshops at the Labor Notes Conference.