Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, What Justice Professionals Need to Know about Applying Common Law Contract Principles to Bargaining Agreements. Here are just a few of his responses.
Audience Question: Rick let’s start with the basics. What’s a right to work state? Are all states right to work states?
Rick Hodsdon: Right to work state is a term typically used for states that especially in the public sector either outlaw or discouraging actually prohibit public employees from union organizing. In law enforcement, in many of those states, what you’ll find is you might still have the fraternal order of police, but instead of a union they call themselves exactly that a fraternal order. And so, in those jurisdictions, you know if management doesn’t negotiate with groups of employees, it’s typically thought it was a meet and confer group kind of a well we’re going to have a labor management discussion. Tell us what you think but here’s the way it’s going to be. So those tend to be a lot of the right to work states tend to be more of your traditional Southern States. Some of them may have Right to Work type approaches for Sheriff’s offices, but in that same county or jurisdiction, the police department might be unionized so you see a lot of variety there.
Audience Question: And how many Right To Work states are there in the U.S.? I don’t think I caught that part.
Rick Hodsdon: That number is growing over the last several years. For example, I’ve got a map I teach a class for SPSC on Labor Relations. So, it shows how it’s changed over time. One of the more recent additions of the so-called right-to-work state in the public sector has been Wisconsin. A few years ago, the governor and the legislature got together and built a very serious blow to the public employee unions in Wisconsin.
Audience Question: So, does that mean that unions for public employees are starting to go away?
Rick Hodsdon: The number of people who are in unions all over the United States public and private is going down. One of the things that it’ll be interesting to see how it plays out public employee unions may be losing membership because of a Supreme Court case actually from a year or two ago involving the so-called fair share concept. The fair-share concept tries to get rid of free riders. So, I’m in a union and I’m paying $20 a month union dues and all of a sudden, they go wait a minute whether I pay union dues or not, if they negotiate a contract with a raise, I get the raise. If they negotiate an increase in health insurance, I get all those benefits. So, under the Fair Share doctrine, the idea was that unions you don’t – they can’t make you be in the union, but they can at least make you pay your fair share. So, for example in Minnesota under the Public Employer Labor Relations Act, if I don’t want to be in union, instead of $20 a month you have to pay 90% of the union dues because you’re getting all the benefits that we negotiate for you. The issue went to the United States Supreme Court twice. One time, it got stuck. There was a Justice who had passed away. So, it was a 4-4 decision. Eventually got back to the Supreme Court. A person had sued to claiming that to require payment of fair share was a violation of his rights under the First Amendment. He was being required to involuntarily support a union who had agendas and politics that he didn’t necessarily agree with. And the United States Supreme Court agreed on First Amendment grounds that the fair share of the concept is not permissible in the public sector. What many of us are watching for is to see if that’s going to impact how many – the union may still be there but are they going to be turning to lose members who say I don’t want to pay and in a couple of jurisdictions were starting to see that a little bit.
Audience Question: Assuming that there has been a long-standing and unchallenged past practice that is no longer feasible due to the pandemic, is management in a strong position when changing the practice?
Rick Hodsdon: It’s probably going to depend on all those factors we talked about. Depending on what’s going to change, why, if it’s an area in which the past practice is directly contradicted by written agreement. I think the past practice would be in bigger trouble than if the written agreement is simply silent on it. And then the other questions are as we said near the end. What was the practice? Why did it come about in the first place? Why is it being changed? What are the parties gaining by it? I guess that’s a long-winded way for a lawyer to say it depends.
Audience Question: As a new HR rep, what is the best way for me to familiarize myself with the ins and outs of the existing contracts?
Rick Hodsdon: Read It. Read It. Read It. Read it is what I would strongly encourage. I’m surprised by even union representatives, business agents, local presidents, etcetera who tend not to read the contract until something hits the fan. And then they start cracking the books on it. A lot of competent HR people know the union contracts of who they’re dealing with way better than some of the senior leadership of the local. and I think that probably does a disservice to the members of the union. Because you’re going to – most of these things are the union gets organized and they get written because the teamsters or whatever whoever asks me or whoever is going to organize. So, they’ve got contracts and union agreements I got from some other jurisdiction and that’s our starting reference point. Likewise, management finds jurisdiction that’s had a union of police officers for the last God knows how long so they go to that place. They all have their samples and their templates and that’s where they start from. Those organizations put that in place, but then things change a lot over time and I think union agreements have often not kept up with technology changes in some of the issues that I mentioned, you know, the idea of body cameras as being part of union negotiation. I know another jurisdiction where the officers were trying to as a term and condition employment get management to agree to give them electronic incapacitation devices. The theory being they would be less likely to be successfully sued if they had these additional tools. So, I think reading what’s in the contract and what’s been agreed to historically. If what’s happening in real life doesn’t match what’s in the contract, my suggestion is to change it, make real life, and make the contract match each other as best you can.
Audience Question: Is shall and will in the same contract language or do they mean the same thing and why is shall used so frequently?
Rick Hodsdon: I think shall and will tend to be much more closely aligned than shall and may that are very different. Shall is used in contracts I think for the same reason we see it in statutes because there is such a strong body of case law and precedent that very clearly says shall is mandatory, will is mandatory, may is discretionary. If the parties want to make very clear this is what’s going to happen, that there’s not a lot of wiggle room, they would want to use the word shall. Will is fuzzier. If you really want to make it clear, will is you know “will” implies that if this happens, we will do this stuff, almost more like promissory. Shall is far more directive. You know the Ten Commandments according to Charlton Heston when he came down off the mountain. He didn’t say you will not kill. He said Thou shalt not kill and it has much more directive of language. That’s why you see you so much.
Audience Question: Is there a difference between a mediator and an arbitrator?
Rick Hodsdon: Very much so. A lot of their principles and concepts as you can hopefully tell from the presentation, I did this afternoon are the same. Arbitrators generally have the authority to make a binding decision. A mediator only can make a recommendation. Let’s say we’ve got a deputies’ union that is an essential employee under state law. They can’t strike. They’re having a dispute about compensation on the contract. If they go to mediation the mediator can say I think management, you should, County Board you should give them a 3% raise and do this and that and the other thing and the County Board can say thank you very much for your opinion. We’re not going to do it. The case goes to arbitration in that context. The arbitrator says Union gets a 3% raise they get this that and the other thing and the answer is they get it. So, the arbitrator has much more binding authority. In jurisdictions in which the arbitrator is given that binding authority and I said, there’s very little appeal to the district court or to an appellate court or trial court. Any appeal would be based on massive abuse of discretion, corruption, totally arbitrary, and capricious activity by the arbitrator. In labor law arbitrators actually have more power than a trial judge. Trial judges could easily be appealed and often overruled. Arbitrators rarely are.
Audience Question: I was just going to ask you that if arbitrators are then in turn like judges, but it sounds like you’re saying they’re kind of a class all of their own.
Rick Hodsdon: The ability to overturn a trial in Minnesota, we have district court judges, trial judge, the ability to overturn the decision of a trial judge is way easier to go to the court of appeals and get the decision reversed than it is to vacate the decision of an arbitrator. That’s true whether it’s in a disciplinary context or in terms and conditions economic context.
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