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Legal issues surrounding union representation and collective bargaining

Frequently Asked Questions: Legal issues surrounding union representation and collective bargaining


Does a collective bargaining agreement have the full force and effect of law?

Yes. An agreement signed by the designee of the university and ratified by the membership of the union would have the full force and effect of the law. Such an agreement is recognized under existing law and is enforceable in the courts. A contract cannot supersede the law, and if any provision is held to violate the law, that provision is subject to renegotiation.

No. During the life of a negotiated agreement, terms can only be changed if both the university and the faculty union mutually agree to renegotiate. If mutual agreement exists, any contractual provision may be renegotiated at any time. Unilateral changes are a violation of law and a collective bargaining agreement is legally enforceable.

No. A strike can only be authorized by the faculty. State or national union officers or staff members cannot under any circumstances authorize or declare a strike. Faculty would have to vote on any strike action if they ever felt compelled to do so. In some states, a strike is an illegal activity. Two additional notes are important. First, many contracts have an agreed upon "no-strike" clause that prohibits any such action during the life of the agreement. Second, an individual cannot be compelled to strike. Whether you are a union member or not has no bearing on your legal right to strike or refrain from participating in a strike.
The responsibility of the union, under a collective bargaining agreement, would be to ensure that all faculty have the right of due process. A faculty member should only be subject to discipline or discharge for just cause. It is not in the interests of the faculty union or the university to defend individuals who are unfit to continue in their position. However, it is in the interest of the faculty union and all faculty to ensure that the right to due process is not abridged. Should this right to due process be violated, the integrity of the contract and the procedural rights which the contract embodies must be defended.

No. The concept that everyone must pay union dues where a union exists is frequently misunderstood. To begin, several definitions are in order.

A "fair share" arrangement, also sometimes referred to as an "agency fee" or "union security" provision, is an agreement that is specified by law or negotiated into a collective bargaining agreement and, therefore, is mutually agreed upon by the employer and union, and ratified by employees. Such a provision requires that all employees in the particular bargaining unit who are covered by the collective bargaining agreement must pay their "fair share" of dues to the union.

The premise is this: since a negotiated agreement covers all employees in a bargaining unit, and as such the benefits of the collective bargaining agreement and union representation are enjoyed by all employees in the unit, all employees should pay their "fair share" to help defray the costs associated with collective bargaining and union representation.

Additionally, in a typical collective bargaining situation the union becomes the "exclusive representative" of employees for the purpose of collective bargaining. As a result, the union is obligated to represent all bargaining unit members regardless of their membership status. If, for example, a non-union employee covered by the contract is disciplined or discharged and requests union representation in a grievance, the union must represent that employee as it would a member. A union cannot require union membership even if a union security agreement exists. However, where a union security agreement does exist an employee may be required to pay their "fair share" of dues to help defray the costs of representation.

Finally, where an employee covered by a union security agreement opts against joining the union, they can only be required to pay the portion of union dues, calculated through periodic audits or determined by state laws, that goes towards the cost of collective bargaining representation activities as defined in law. This means that fees cannot be required to cover the costs of political or non-collective bargaining related activities.

In some states there are also legal exemptions for those with demonstrable and bona fide religious objections to unions. In these cases, an equivalent sum must be paid to a charity other than ones religious organization.