duty of fair representation Archives

Through the State Budget bill signed by Governor Andrew Cuomo on April 12, 2018, New York has new legal protections for unions that represent government employees. These measures seek to protect public sector unions from the potential implications of the Supreme Court’s upcoming decision in the case of Janus v. AFSCME. Many expect that decision to allow public employees to refuse to financially support the unions that represent them in collective bargaining.

What’s at Stake in Janus?

I have recently described what Janus may mean for New York’s public sector unions here.

The U.S. Supreme Court heard arguments in the case on February 27, 2018. Its decision will likely come out this spring.

Existing Supreme Court precedent holds that public employees cannot be required to pay for unions’ political activities. However, they can be required to contribute to the union’s actual costs of contract negotiation and administration.

Illinois state employee Mark Janus is asking the Court to change that standard. He wants the Court to rule that, under the First Amendment, public employees cannot be required to fund unions against their will. This outcome could threaten public sector unions’ ability to raise sufficient funds to perform their day-to-day operations.

New York Legislative Measures

Without waiting for the decision in Janus, the New York State Legislature has enacted protections seeking to give public sector unions greater leverage over employees who might consider opting out of union membership.

Modification of Dues Deduction Requirements

Before these amendments, New York’s Civil Service Law required public employers to deduct union dues from employees’ paychecks “upon presentation of dues deduction authorization cards signed by individual employees.”

The Legislature has added considerable additional language to that requirement addressing time limitations, forms and means of authorizations, and employee revocation.

The law now requires employers to begin union dues deductions within 30 days of receiving proof of a signed authorization. The employer must then continue to make the deduction until either the employee revokes membership in the union “in writing in accordance with the terms of the signed authorization” or ends employment. Previously, the law permitted an employee to end the dues deductions by submitting written notice of withdrawal of the dues authorization.

Notably, the law now also provides that if an employee leaves and returns to employment within a year, then their prior authorization will remain in effect.

Notification of New Employees

A new provision of the Civil Service Law requires public employers to notify the applicable union within 30 days of hiring, rehiring, promoting, or transferring an employee into a bargaining unit.

The notice to the union must include the employee’s:

name;
address;
job title;
employing agency;
department or other operating unit; and
work location.

This information will enable the union to contact the employee for purposes of encouraging union membership and signing of a dues deduction authorization card.

Meeting with New Employees

In case providing the employee’s information to the union isn’t enough, the law now actually compels public employers to make their employees available, on work time, to meet with union representatives. Employers must allow this within 30 days of providing the information above.

The union representing the employee’s bargaining unit may meet with the employee “for a reasonable amount of time … without charge to leave credits.” The union must arrange the meeting time with the employer.

Duty of Fair Representation

Before this legislation, public sector unions owed a general “duty of fair representation” to all employees in the bargaining unit they represent, including employees who chose not to join the union. Now the law allows a union to “limit[] its services to and representation of non-members.” This limits the duty of fair representation to “the negotiation or enforcement of the terms of an agreement with the public employer.”

In more detail, the law explains this to mean that public sector unions do not have to represent non-members:

during questioning by the employer;
in statutory or administrative proceedings or to enforce statutory or regulatory rights; or
in any stage of a grievance, arbitration, or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to proceed without the employee organization and be represented by his or her own advocate.

The law also expressly permits public sector unions to limit legal, economic, or job-related services or benefits beyond those provided in the collective bargaining agreement only to union members.

Impact on Public Sector Unions

It is hard to guess how these preemptive measures will hold up following the Supreme Court’s ruling in Janus. In addition to the above substantive amendments, the Legislature included two sections in the law recognizing the potential that some of these requirements could be found unconstitutional. If so, the law provides, the remainder of the legal requirements would remain in effect.

But the intent of the legislation is clear. It seeks to protect New York’s public sector unions against federal limitations. To that end, Governor Cuomo announced, upon signing the legislation:

“Too often, and at the hands of this federal administration, we are seeing the labor movement going backwards. In New York it is a different story, and our efforts to protect working men and women are moving labor forward, making the workplace fairer and more just than ever before. This action sends a clear message to the rest of the nation: we will not let this federal administration silence New York’s working class, we will support every voice in every community and in every industry, and we will do everything in our power to protect the right to achieve the American Dream.”

Impact on Public Employers

Without even knowing what further impact the Janus decision will have, it is too early to anticipate the ultimate impact on employers. In many cases, these changes probably will not have an immediate effect on existing bargaining units. Many employees will likely continue to support their unions, who will continue to represent them and others in their bargaining unit.

Some employers would probably be happy if unions faded out of their workplaces. And this may happen over time. But other employers would regret seeing one union leave to be replaced by an unfamiliar one.

If nothing else, the release from the duty of fair representation, if legally upheld, may benefit employers as well as unions. It could result in fewer grievances and less litigation where unions decline to fight on behalf of non-member employees. On the other hand, these employees may still be able to arbitrate or litigate on their own, with or without legal representation.

Keeping in mind that this is a management law blog, I’m obviously coming at this from the perspective of employers, not unions. And the short answer to this question is that most companies don’t want their employees to organize a union in their workplace. Fundamentally, unions tend to increase costs and reduce management flexibility.

Here’s how unions can mean more time at the table and less time getting the work done.

Unions Are Businesses Too

Like your company, a union is a business. Most unions have employees. Employees who work for unions can even form their own unions. But we’re focusing on the situation where unions represent employees of an employer other than a union. Like a manufacturing facility or a construction company.

Unions make money by collecting dues from your employees. Often you as the employer are withholding the dues from your employees’ pay and transferring the money over to the union. This is money out of the pocket of your employees. Beyond dues, unions can also levy initiation fees, assessments, and fines on its members. Unions use this money to pay for their employees and other business expenses.

Union business is somewhat circular in some respects. Union organizers work to get their unions into your workplace. Then your employees pay dues to the union. The union uses the dues money to pay the organizers. So if you look at it this way, union organizers are salespeople who make money by selling a product: union representation.

To be sure, unions perform other services beyond unionizing. They also engage in lobbying, represent bargaining units in negotiations, and deal with day-to-day workplace disputes, including grievances and arbitrations. Employee dues pay for these functions as well. On one hand if unions have to work hard to earn this money, this means there are a lot of problems in the workplace. On the other hand, if there aren’t problems, then employees may feel like they’re not getting much for their money from the union.

Here’s the key lesson for employers (Tip #1): keep your workers happy and they won’t need to “hire” a union. Or if they already have one, they may decide to “fire” it if they perceive that they don’t need it any more.

Unions Prevent Dealing Directly with Employees

Once a union becomes the representative of a group of employees, the employer has to deal with the union directly regarding most terms and conditions of employment. This typically starts with negotiating a collective bargaining agreement. This is the contract that determines wages, benefits, discipline, and other matters affecting all employees in the represented bargaining unit.

It can take a long time–many months–to reach agreement on a contract with the union. In the meantime, employers’ hands are largely tied. They can’t unilaterally change wages, benefits, etc., unless the negotiations have reached an “impasse.” And, of course, the union doesn’t always agree that there is an impasse. So an employer often acts at its own risk by making a change without union consent.

This means that if Employee A wants a raise, the employer can’t give it to him without union approval. And unions typically insist on lockstep compensation. Most often seniority determines employees’ wages. So if a new employee is more skilled, he or she will usually still make less money than a longer tenured employee who is not as talented.

The collective bargaining agreement may also control many aspects of scheduling, include overtime assignments. It can be difficult to work with an individual employee to do what may be best for both him and the company because of the strict requirements of the contract.

Tip #2: if you do have a union, it’s usually best to have a good relationship with its leaders. Not every aspect of the union-employer relationship has to be a fight. Good labor relations fosters more flexibility from both sides and should make things run smoother in most cases.

Job Protection Isn’t Always Just

Without a union, the default is that employees are employed “at will.” This means they can resign or be let go for any reason with or without notice. But under union contracts, an employer usually can’t discipline an employee without “just cause.”

It may surprise you that no one really knows what “just cause” is. Ultimately, it’s whatever the arbitrator (or perhaps a court) says it is in a given case. If an employer disciplines an employee and the employee doesn’t like it, then the employee or the union can (and probably will) file a grievance. If the company doesn’t change the discipline to something the employee accepts, then the case may proceed to arbitration, requiring a hearing. Then the arbitrator hears both sides’ version of the situation and decides whether to uphold the discipline as imposed.

In my experience, employers don’t go around trying to find ways to get rid of good employees. (See my earlier post on getting rid of bad employees.) So, at least in cases of termination, grievances are most often serving one of two purposes: (1) contesting the supervisor’s motives or competence or (2) appeasing a bad employee. Sometimes the former has merit. But the latter seems to be more common.

The real problem is that grieving and arbitrating a bad employee’s discipline costs the union time and money. The money comes from the dues of all the employees. Most of them are good employees and will never grieve discipline. This is because either they aren’t disciplined or they recognize they deserved it. So, in other words, the good employees end up paying to support the bad employees.

Tip #3: hire good employees and hope they keep the bad ones in check. I know this tips seems overly simplistic. But the point is that it really pays to invest in good hiring methods. Including with respect to labor relations issues.

Employees Can Sue Unions

In case you’ve gotten this far and are wondering why unions spend good employees’ money to defend bad employees . . . see the heading above. Unions owe the employees they represent a “duty of fair representation.” That basically means they have to represent all of the employees fairly. (Well, I guess that was obvious.)

Actually, there is a pretty high standard for an employee to sue a union for breach of the duty of fair representation. The union has to have been pretty reckless in its treatment of a particular employee (or group of employees). But, like most everyone else, unions don’t really like to be sued. So they typically err on the side of caution and try to defend everyone who wants to contest their discipline.

Tip #4: in order to claim that the union has breached its duty of fair representation, an employee also has to allege that the employer has breached the collective bargaining agreement. Makes sense, right. The union didn’t have a duty to represent the employee if the company didn’t do something wrong. As a result, in these cases the union and employer essentially end up on the same side of the table opposite the employee. This is another of many reasons why, if you do have a union, you should try to maintain a professional working relationship, even if you won’t always agree.

Good Employers Don’t Need Unions

You’re a good employer right? If you took the time to read this, you probably are. There may be some flaws in your game, but you’re at least trying to do right by your employees.

Management and supervision is critical in rendering unions unnecessary. Unions can promise higher wages and better benefits, but only the employer can make those things a reality. So you always have the upper hand. But if your supervisors demean, ignore, or otherwise mistreat employees, they’ll look for someone else to protect them. That’s when union organizers get a foot in the door.

If you are a good employer that already has a union in your workplace, then your goal is improve your relationship with both the union and the employees to the point where it’s not so bad that the union is around. Then maybe at some point the employees will wonder why they are paying the union to be there at all. . . .

Tag: duty of fair representation

New York Protects Public Sector Unions