The National Maintenance Agreement Defined
A National Maintenance Agreement (NMA) is a type of multi-employer collective bargaining agreement, and, as the name suggests, it is available for use on a nationwide basis. Let’s start with the "multi-employer" part of that definition. A NMA need not be local to one employer or even limited to employers in a particular state. Rather, there may be many employers who are signatory to the same NMA, and, as the term "multi-employer" implies, many such agreements can be in effect at any time. Hopefully, though, not many.
One of the most important purposes of an NMA is to establish uniform terms and conditions of employment if and when signatory employers impose their collective bargaining agreements on their contractors, subcontractors, and suppliers. In other words, a signatory employer can make the collective bargaining agreement governing employment terms and conditions its terms and conditions. The "merging" of so many employment agreements into one is by no means, however, limited to the specific terms and conditions of employment. It extends to grievance and arbitration procedures and no-strike clauses, as well—provisions which create havoc for union-represented employers.
For example, it is not unusual for a union to call a strike over every little thing before the right to go to arbitration can be exercised . When the NMA is in place, however, there is no right to strike when the parties are required to submit disputes to a multi-employer panel of arbitrators. Equally important, the association of employers signatory to the NMA control which arbitrator(s) will be assigned to the disputes submitted to the panel, and the association sets the rules governing the conduct of the arbitration proceedings. So, while it may seem to be contrary to a union’s purpose in actually going to work, the NMA effectively ends the right to strike and unilaterally imposes specific procedures for final and binding arbitration of disputes. This, of course, means that a union must think seriously before hitting the picket line.
A NMA is especially beneficial to employers in a heavily unionized construction industry. In fact, the majority of maintenance, repair, and refurbishment work performed on industrial and commercial properties is covered by one or more NMAs. So, the next time the phone rings, and the maintenance work you have just been offered is requested to be performed by a contractor signatory to a NMA, recognize that you have a choice to make: Either decline the work, or embrace it, but be aware that accepting the work comes with strings attached—just like any other ballroom dance.
Agreement Provisions
The National Maintenance Agreement ("NMA") contains several key provisions and clauses that help define the scope of work, employment terms and conditions, and safety requirements. A basic NMA will generally contain some or all of the following provisions that help spell out the rights and obligations of its parties.
Scope of Work
The NMA is a comprehensive product of the signatory unions’ national and local affiliates, and its geographic jurisdiction covers the United States and Canada, and its scope of work generally includes maintenance and related work on industrial and commercial projects. "Maintenance and related work" means the conduct of an activity as specified below that is: (a) performed by, or within the scope of practice of, the trade jurisdiction of the skilled trade covered by this Agreement; and (b) performed in, on, or at the site, plant, structure, property, or works as enumerated here:
The above provisions are commonly included in a "Maintenance Work Agreement" that is incorporated into the NMA by reference.
Employment Terms
The NMA reaffirmed and memorialized the employment obligations required by each party. This includes maintaining the status quo of wages and be subject to the provisions of the Labor-Management Relations Act. However, it enacted neutral non-discriminatory hiring clauses, which is a codification of the Lindholm Stipulation. This means that employers must maintain a union hiring hall, where union members have precedence for assignment to jobs until the hall closes, at which time work can be opened to the public.
Safety
The NMA also discussed the various safety provisions of the contractor obligations. This includes the ability of signatory contractors to conduct a "safety orientation" to new employees, which requires reviewing employer policies, safe practices, equipment inspection, and identification and avoidance of known hazards. The employer must also supply personal protective equipment (PPE) such as respirators, eye protection, hard hats, and gloves.
Benefits for Employers and Employees
For employers, the National Maintenance Agreements provide a meaningful opportunity to engage in high-quality, affordable maintenance and service contracting, without the looming threat of jurisdictional or work assignment "raiding" problems – unintegrated jurisdictional turf battles between international unions affiliated with the Building and Construction Trades Department of the AFL-CIO and all such other internally-affiliated international unions and organizations. Employers can enter into relationships with building trades unions armed with the knowledge that after years of negotiation and implementation of rulemaking and policy, disputes over jurisdictional arbitral awards and other contract language will not plague the execution and completion of the work. Employers can negotiate conferring contracting authority to their supervisory employees, without the dire consequences of loss of jurisdiction, death threats, organized picketing and other forms of sabotage that often inhibit such contracting decisions.
The National Maintenance Agreements also enhance the safety and health of workers. The Signatory Employers and the Building and Construction Trades Unions have agreed to conform their occupational safety and health standards to uniform Maintenance Agreements. All occupations and all crafts are covered by formal substance abuse programs under the jurisdiction of the National Substance Abuse Program (NSAP). NSAP authorizes drug-free workplace plans and random drug testing. Furthermore, the National Labor Relations Board has found that conflicts arising from the NMA Article XVI "Work Rules Conformity" do not constitute a statutory labor dispute under the National Labor Relations Act and may not be unilaterally changed by the Signatory Employer to the detriment of its workers. For example, if one of Signatory Employers replaces its current uniform work rules with those that appear to make it easier to fire employees, it must explain to its employees and the union the reasons for such a material change in working conditions.
The NMA provides both for the pooling of supervisory resources and central administration of supervisory training and facility safety inspections. A Signatory Employer can dispatch an employee in a supervisory capacity with knowledge, skills and experience more appropriate for the job than the local worker pool. Accordingly, the costs of multi-project relationships can be leveraged to enhance the productivity of Signatory Employers. The pooling of resources also avoids paralysis over jurisdictional assignments. For example, if an Employer utilizes fringe benefits paid into the pension fund for out-of-state workers, it permits the Employer to engage employees whose health insurance or pension benefits may be less than optimal in a quickly competitive labor marketplace.
Finally, the negotiated local hiring provisions, which require Signatory Employers to hire from two lists of qualified Local Union members, one consisting of Apprentices and the other of Journeymen, also benefit Signatory Employers. It allows Signatory Employers to sign Subcontracts with Local Unions under which the Local Unions agree to restrict their local hiring procedures in the NMA’s jurisdictions. This allows the Signatory Employer to know the terms of Subcontracts that will be entered into with Local Unions, and allows Local Unions to sell wage and fringe benefit packages to Local Union members as a combination cost-effective means of wage/labor cost containment and new membership recruitment. In addition, Local Unions are further incentivized to negotiate National Agreements because Employers seek to negotiate language that places limits on the use of Local Union Hiring halls when the Local Union does not have enough members to fill the needs of the Signatory Employer. In essence, the NMA allows Local Unions to maintain their bargaining power and "buy back" signatory status, while Signatory Employers can agree with other Local Unions to maintain low-cost labor pool for their work.
Negotiating A National Maintenance Agreement
To successfully negotiate the terms of a National Maintenance Agreement, preparation is essential. Review the current terms and conditions of the agreement and understand your site’s specific requirements, including work scopes, trade jurisdictions, safety concerns, and the collective bargaining agreements that affect your workforce. Research the labor agreement between the governing union and other employers performing similar work. Scrutinize the governing union’s operations, capabilities, training, tools and equipment. Understand the costs associated with all aspects of the work, including wages, welfare contributions, and fringes. Ascertain the work rules in place for your competitive industry or environment.
The terms and conditions that should be negotiated include scope of work , applicable wage rates for the work to be performed, fringe benefits, attendance/violation rules, reporting time, overtime and shift work. Negotiation for these terms should include their reasonableness, internal vs. external consistency, compliance with industry standards, practicality, effect on job competitiveness, and ability to perform.
A fair agreement will have terms consistent with those agreed upon by similarly situated parties. For example, the agreement should reflect work rules and wages, as well as other associated costs in line with industry standards and those terms voluntarily agreed to by the governing union and other comparable employers. Terms should not be imposed upon a party that would render its work uncompetitive with other facilities.
Common Issues and Problems
Like any other contract, National Maintenance Agreements (NMAs) can sometimes lead to disputes and enforcement issues. From compliance challenges to enforcement of terms, there are several common problems that contractors need to be aware of when dealing with NMAs.
Enforcement of NMA terms. An Employer may attempt to ask a contractor to fit extra language into the parties’ agreement, purportedly to further "clarify" the NMA’s terms, but the provisions of the NMA itself govern the parties. In this particular set of facts, a contractor challenged an Employer’s requirement that the contractor open all of its project sites to the Local Union for hiring purposes, when the contractor had no obligation to do so under the NMA. The parties’ CBA, which incorporated the NMA, contained no such language. The Employer argued that the contractor’s refusal to submit to its extra-CBA demand was an unfair labor practice (ULP), but the Agency disagreed. The Agency found that the Employer’s purported requirements violated the terms of the agreement, namely the NMA’s requirement that the Union be given access to job sites, which is not a carrier of a requirement to hire and dispatch bargaining unit employees. On the contrary, the burden is on the union to recruit and hire applicants into the hall.
The risk of this situation highlights the importance of understanding the terms of the NMA and the CBA. While these agreements generally allow for flexibility to only accommodate the terms of the NMA, they do not allow for any demands of an Employer or Union that are inconsistent with the NMA. Solutions to problems that a contractor has with complying with an NMA should be sought within the NMA.
Challenge: Compliance and New Work Site Issues. One of the most common issues that contractors face is one where there is a new work site, and the NMA must first be considered before any work is undertaken. An NMA contractor that undertakes work at a project site that has been added to the NMA without first notifying the NMA Administrator and the other parties to the NMA, risks losing the protections of the NMA.
Challenges: Double-Breasted Operations. A double-breasted operation is one where an Enterprise has both UBC and non-UBC operations in the same industry. For example, an enterprise who operates an uniformed security service may operate in both the CBAs administered by the United Brotherhood of Carpenters and Joiners of America ("UBC") and the International Union, Security, police and Fire Professionals of America ("SPFPA").
Challenges: Jurisdiction Issues. Some projects have both UBC and sister unions working on it. The parties should determine which rules apply to which work, and whether any NFPA or IIFB companies will be permitted on the project. If the local contract does not provide clear guidance, it is vital to review the NMA and NMA policies to determine what rules will apply to the work.
The Future of National Maintenance Agreements
Technological advancements are predicted to be the most significant change to the landscape of National Maintenance Agreements in the coming years. New equipment is being designed to incorporate technological updates, such as overlaying visual images with geographical information and the ability to integrate digital data into the on-site file. In addition, as we have previously posted about, it is also anticipated that regulations will change requiring updated health and safety standards for new equipment. Furthermore, construction smart glasses and apps in the workplace will likely be used more frequently, as well as drones . The use of drones will permit ICI contractors to perform much of their surveying work which, in turn, reduces the amount of "face time" necessary for their employees on-site.
The National Maintenance Agreement Policy (NMAPC) has been implementing technology into their training modules. This year will be the first year of fully electronic training modules for the International Building Trades. The NMAPC has also been working on increasing the "technology content" of their formal and informal programs. Social media is also becoming an integral part of the NMAPC’s online presence to market themselves to the next generation of ICI tradesmen in the United States.