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Are you entitle to backpay for working above your title in the union? (receiving the hourly wage of the higher title)

New York, NY |

I and several employees have been working above our title. In the contract, it states each title and what the min/max hourly rate of pay is. The union is speaking in our behalf to have us move up to top title or only do functions within our title. I asked if we can get paid retroactively for the time we were doing a higher title's work but my shop-steward said it most likely won't happen. Is that possible? Not including the other employees, I alone would be entitled to over $20,000 for work I did even when I shouldn't have.

Attorney Answers 3

Posted

Your union rep is most likely not an employment lawyer and does not have an interest in fighting this battle for you. Assuming you can prove that you worked the higher paying job, you, and the others should be paid for all hours worked, and should claim interest, penalties, and attorneys fees if the employer refuses. If you have any other questions I would be glad to answer them. Kind Regards.

PLEASE READ THIS DISCLAIMER * I very much like to offer my advice and guidance to those in need. It is why I became a lawyer. However, please note that I have not been engaged to be your lawyer so my advice is general in nature. Certainly, if you would like, please feel free to email or call me to further discuss the particulars of your situation (as many times it is not a good idea to provide a lot of information about your case on a public forum). * Hacker Murphy, LLP * 518.213.0115 * Rfinn@hackermurphy.com * http://www.hackermurphy.com/Attorneys/Ryan-M-Finn.shtml * Hacker Murphy serves clients throughout New York State (including New York City and Long Island). *

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4 comments

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Respectfully, this is a labor law issue, not an employment law issue. Assuming it's a private sector workplace, federal labor law applies, not state or federal employment law. Please see my separate response.

Ryan M. Finn

Ryan M. Finn

Posted

I obviously have not read the collective bargaining agreement and I assume you have not either. But, assuming the union decides to just give up on the issue, and refuses to fairly represent its members, then the employees should bring an unfair labor practice charge against the Union and should continue to demand from their employer payment that they deserve.

Ryan M. Finn

Ryan M. Finn

Posted

See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983) ("To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union."

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Right, I have not read this particular collective bargaining agreement but I have read literally hundreds of collective bargaining agreements. And I have read the National Labor Relations Act. These employees do not have a legal basis to pursue a claim for the pay differential in court. They cannot claim interest, penalties or attorney's fees. Whether they are entitled to the higher pay for the work requires an interpretation of the collective bargaining agreement. No state court can interpret the collective bargaining agreement; this issue is preempted by the federal labor law. I don't know why you are referring to DelCostello, as it supports what I am saying and not what you are saying. A breach of the duty of fair representation case (DFR) requires the employee-plaintiff to prove the union acted arbitrarily, discriminatorily or in bad faith. These are legal terms of art under federal labor law and require a showing far beyond negligence. The union is legally entitled to pursue some cases and not pursue others, provided it is not making its decisions arbitrarily, discriminatorily or in bad faith. Here, the union is pursuing the grievance. There is no indication whatever that it wil "just give up on the issue." There is no DelCostello situation and no DFR under these facts. Even if the union screws up in the way it handles the grievance, that does not amount to a breach of its duty; the union is allowed by law to be negligent, incompetent, and lots more. And even if the union decides it does not want to continue pursuing the case – giving up on the issue, as you term it – that by itself is not a breach of the union's duty of fair representation, not under DelCostello and not under the many cases that followed, relying on DelCostello.

Posted

You need to file a grievance, in writing, with the union demanding that you get paid for the out of title work you have already done. Be sure to get a copy of it. The others should do the same.

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1 comment

Arthur H. Forman

Arthur H. Forman

Posted

There are probably time limits for filing a grievance. It may be too late to get much of the back pay. But the sooner you file, the better.

Posted

Mr. Finn's answer is incorrect, assuming you work for a private employer. When the employees voted in the union, they voted for it to be their exclusive representative for wages, hours and terms of employment. If you look at the first few provisions of the contract, one of them will state the union is the exclusive representative. There is no individual right of action as it is preempted by the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 - 169 (NLRA, also known as Labor Management Relations Act or LMRA).

Mr. Finn is also wrong when he implies it's bad that your union rep is not an employment lawyer. Employment lawyers have no special knowledge or expertise in labor (union) issues. Employment attorneys deal with the civil law – statutes, regulations, court cases, etc. Union representatives deal with the collective bargaining agreement (CBA or contract), previous grievance settlements, and the arbitration decisions resolving labor relations disputes. All union-related actions are subject to the NLRA, cited above, and the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 401 et seq. (LMRDA or Landrum-Griffin Act).

Mr. Finn is wrong again when he states the union rep does not have an interest in fighting this battle. The statement can only be made by someone who doesn't know what unions are, what a union does, and the reasons they exist. The sole purpose of a union is to advance the interests of the workers. Most union reps try very hard to do the right thing. Many give up hours and hours of their spare time to help the union in negotiations, grievance and arbitration handling, research, organizing and more.

That's not to say early all union reps are good at what they do. Most elected and appointed union reps start out as rank-and-file workers. They may be elected due to work competence, seniority, intelligence, charm, good looks, having a big mouth, blustering, oratory skills, etc. – just like politicians. There is a range of skills and a range of experience among them. Most unions provide some training for officers and stewards, but others don’t have the resources to do so. The quantity and quality of training can vary widely. This is one reason to get involved yourself, and to actively participate in the grievance. all elected and appointed union officers start out as rank-and-file workers.

To address your particular question: the grievance process is the only way to handle this issue. If the union is pursuing the grievance, that is great, because unions are not obligated to pursue every possible claim. If the union takes the grievance all the way through the several steps of the grievance process and moves it to arbitration, the arbitrator will decide the remedy for the employer's violation of the contract, provided of course the union proves the violation.

You and the other employees can advocate for the union to pursue retroactive pay. Talk to the union president or business agent – whoever is the highest elected official in the union – and help him or her understand why this is so important. Probably the official will understand without having to be told, but it helps to let him or her know how much it means to you.

Unions are the only thing standing between any worker and the employer’s ability to do whatever it wants. Without unions, there is no organized opposition to corporate efforts to take away workers’ rights. It is no coincidence that as union membership has declined, so have on-the-job benefits such as health insurance and pensions.

All your life, you’ve heard “there is strength in numbers.” You hear it because it is true. The best way to make a union stronger and better-able to help all workers is to participate in its work. Read the collective bargaining agreement (contract). Attend union meetings, ask questions and think about what is happening at the workplace. Help your union help you.

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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8 comments

Ryan M. Finn

Ryan M. Finn

Posted

*disagree* If your Union refuses to fight for you and others then you certainly can fight for yourself. You are not beholden to your union. If they do not fairly and adequately represent you, continue to demand payment from your employer and file a Unfair Labor Practice charge against your Union.

Ryan M. Finn

Ryan M. Finn

Posted

Also, there are not sufficient facts here to make a determination as to whether FLSA and/or New York Article 6 claims would be preempted. "Of course, not every dispute concerning employment, or tangentially involving a provision of a [CBA], is preempted by § 301 . . . ." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985). Indeed, "the bare fact that a [CBA] will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished." Livadas, 512 U.S. at 124. For example, § 301 does not mandate preemption of state law claims requiring "mere referral" to a CBA to determine damages owed. Vera v. Saks & Co., 335 F.3d 109, 115 (2d Cir. 2003) ("Nor would a state claim be preempted if its application required mere referral to the CBA for information such as rate of pay and other economic benefits that might be helpful in determining the damages to which a worker prevailing in a state-law suit is entitled." (internal quotation marks omitted)); see Wynn v. AC Rochester, 273 F.3d 153, 158 (2d Cir. 2001) (holding that "simple reference to the face of the CBA" does not require preemption of state fraud claim).

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I stand by my answer. First, there is no indication the union is refusing to fight for the asker or the others. Your initial response made that assumption, but you still haven't indicated anything that supports your assumption. The employees can certainly ask the employer to pay them for their out-of-class work but the employer does not have to listen to their requests because their ONLY right to higher pay for this work comes from the collective bargaining agreement. Without the CBA, they are at-will employees and the employer could pay them whatever it felt like paying them for whatever work it felt like having them do. I address your inaccurate understanding of what a duty of fair representation charge agains the union entails. And now you are talking about filing an unfair labor practice charge against the union! On what basis? Nothing at all indicates the union has committed a ULP. There are indeed sufficient facts to determine whether the FLSA or New York wage and hour law is preempted. This is not a minimum wage issue or an unpaid wages issue, and there is no way either the FLSA or NY law will know how much employees at this place of employment, performing these particular duties, should be paid. That is a labor relations issue and is absolutely preempted by the collective bargaining relationship. These facts do not involve simple reference to the CBA. The CBA must be interpreted to determine whether employees in one job class who perform out of class work at this place of employment should be paid a different rate. Interpretation is not the same as mere reference to or consulting of the collective bargaining agreement. Even if the CBA has a provision that states "When an employee works in a higher job class, the employer shall pay the employee the rate for that higher job class for such work," it would still require an interpretation of the CBA and not mere reference to it. The law does not define what it means to work out of class; that is defined by the CBA, grievances and arbitrations interpreting the CBA, the negotiation history of the parties, any side agreements or memoranda of understanding between the parties, and more. The law does not define whether working for five minutes out of class entitles the employee to the higher rate . . . or working five hours . . . five days . . . five weeks . . . only the CBA, etc. can interpret how much time must be spent in the other position to constitute out of class work. And when you say the asker is "not beholden to the union," you point the asker in the wrong direction. Whether the employee is "beholden" to the union doesn't even factor into this. The issue is whether the employee has an individual claim for the higher wages or if this is something that is preempted by federal labor law and must be handled by the union. This is a preempted issue. Unions are the exclusive representatives for all matters concerning wages, hours and terms of employment for the workers in the job classes covered by the CBA (the bargaining unit). If you care to continue this discussion, I'd be happy to call you to talk about it. Otherwise, I will return to answering questions on Avvo, which is what I come here to do.

Vincent Peter White

Vincent Peter White

Posted

Attorney Spencer, unions routinely leave employees high and dry and force them to retain private counsel for various claims. including NLRB. I have handled such matters myself. Perhaps I do not understand your answer, but it seems to say that a union member cannot retain outside counsel? This is clearly fictional. at least in New York State.

Vincent Peter White

Vincent Peter White

Posted

You may also be unfamiliar with the form unions take in New York State to argue that all unions are created equal or that all unions care for their members. The simple truth is that some unions are simply wonderful, others are predatory towards their members.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Mr. White: No, that isn't what I am saying. I am saying that individuals and their private counsel cannot enforce the collective bargaining agreement because they are not parties to it. Individuals certainly can file unfair labor practice charges (ULPs) with the NLRB but those ULPs are not directed to enforcing the collective bargaining agreement; the NLRB does not have jurisdiction to enforce collective bargaining agreements. The NLRB only has the power to enforce the National Labor Relations Act. I did not say all unions are equal. See paragraph 4 of my original response to the question. More broadly, some unions are fabulous and some are horrible. And there is often a huge difference between the international unions and local unions. Of course I am more familiar with unions in California but in fact I am familiar with unions in New York and across the United States though national bar associations of labor attorneys, my interactions with unions across the country, the U.S. Department of Labor (DOL), the NLRB, AUD, the AFL-CIO and more. My original objection to Mr. Finn's response was that he assumed the union was not properly representing this employee, even though the union took the grievance and was processing it. Mr. Finn was presenting his philosophical or perhaps political assessment of unions in general. Mr. Finn also inferred private attorneys could be effective in enforcing the wage provisions of the collective bargaining agreement, which is simply not true.

Vincent Peter White

Vincent Peter White

Posted

Valid points, sadly aside from one or two stand outs I cannot really think of any unions which I have interacted with that appear to give good representation or value to their members.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

It's too bad you haven't had better experiences. I have had the experience of interacting with many excellent unions – as clients, co-counsel, legislative allies, information sources, and more. Of course I am aware that some unions seem to do exactly what they should not be doing. None of my clients, of course!

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