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Do I need a labor law attorney?

Mount Laurel, NJ |

I work for a union company and there is an agreement by and between Republic Services of NJ . Now I am an employee who works for them , specifically a helper . The agreement states as follow new hire wages for all helpers hired after ratification will be 75% of the contract wage and all drivers hired after ratification will be paid 85% of the contract wage . The ratification date is February 1 2011 . They were not finding any drivers at the 85% ratification rate . So they have started hiring new drivers at full rate and they are discriminating against the helpers by not giving them full rate and broke the agreement . It would most likely turn into a class action suit because of the amount of workers there . I do not want to file a grievance in fear of losing my job , until I have a lawyer

Attorney Answers 5

  1. Whether you can file a suit depends on the union contract. A significant number require all disputes to be arbitrated. You need to have your contract reviewed by an experienced attorney. I suggest you seek out an attorney with experience in the field. Be prepared to pay a consult fee for a good one. You get what you pay for. Good luck.

    A response to a question posted on Avvo is not intended to create an attorney-client relationship. It is informational only. Allan E. Richardson, Esq. Richardson, Galella & Austermuhl 142 Emerson ST., Woodbury, NJ 08096 856-579-7045.

  2. I agree with my colleague's assessment but I would add a few things.

    1. You can not be fired for filing a grievance. I have not your CBA but I am almost certain that it would expressly prevent this. Additionally the National Labor Relations Act prevents you from retaliation based on exercising your right to raise concerns about wages, hours, terms or conditions of employment.

    2. From the facts as you've laid them out the employer has not breached the CBA. Think of the 75% of contract for "helpers" as a floor, so long as your pay does not go below that, they are in compliance with the CBA. That they chose to go above the floor of 85% for another job covered by the CBA is permissible, particularly if market conditions demanded it and it is highly unlikely the union will complain about them paying covered employees more than they are required to.

    Your first step if you choose to pursue this matter is to consult with your shop steward and then the union hall, they do have a duty of fair representation and I am sure they will listen to your concerns.

  3. It would be impossible to properly assess your claim without reviewing the CBA and interviewing you. I would suggest that you have a NELA NJ attorney review your case.

    Herbert Tan, Esq.

    The Mack Cali Building
    One Bridge Plaza North, Suite 275
    Fort Lee, New Jersey 07024
    (201) 654-0716

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    New York, New York 10007
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    Member of National Employment Lawyers Association (NELA)

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

  4. When the employees voted to be represented by the union, they agreed that the union was their exclusive representative for everything related to wages, hours and terms of employment. Unless the employer violates a statute – such as the laws prohibiting discrimination against people based on race, sex, disability, etc. – then your only remedy is through the collective bargaining relationship. That means you must file a grievance objecting to a breach of the collective bargaining agreement (contract). Most contracts allow only a very short time to file the grievance, sometimes just a few days, so please check the contract to see how long you have and don't miss the deadline. If you do, you cannot go forward.

    If the union contract language is clear and unambiguous about the 75% and 85% wages, the employer must follow that language precisely. The exact words make a difference. Look for words such as "shall" and "must," both of which indicate the wage is mandatory. It is unlikely the percentages specified are a floor and the employer has the option to increase the floor as it sees fit. The whole point of collective bargaining (union representation) is that all workers are treated equally. The employer is not free to favor one group over another without negotiating with the union. That said, the union and employer are permitted to negotiate side agreements to the contract. It is possible there was a separate agreement to allow full pay.

    Note that while the union is obligated to fairly represent all employees covered by the contract, it does not have to pursue all grievances. Most unions try to do the right thing and obtain justice. Sometimes “justice” does not help an individual employee. One reason is that unions have their primary obligation to the entire group of job classifications the union represents; that group is called the “bargaining unit.” Unions have the right to decide whether to pursue a case or not. However, a union cannot make its decisions in a way that is arbitrary, discriminatory, or in bad faith. The standard is much harder to meet than meeting a negligence standard.

    Most local unions have limited money and staff resources so they must pick and choose which cases to pursue. Unions have to balance the need for more money (to hire more union reps or to take more cases to arbitration, for example) with the bargaining unit’s resistance to higher dues. This is similar to elected officials who must always balance constituents’ wishes with the need to raise taxes.

    I suggest you talk to your union about filing a grievance. It's your only option anyway. No private attorney can help you bring a suit for breach of the contract because only the union and the employer are parties to the contract. You do not have a right to enforce it. Of course, the same is true for a class of employees.

    Keep in mind that if weren't for the union, there would not be a contract to breach. The employer would be free to pay whatever it wants. The Bureau of Labor Statistics publishes statistics showing that employees represented by unions earn higher wages and have better benefits than non-union workers.

    Finally, one thing to consider is that even with faults, 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. *** 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. ***

  5. Your employer is required by the collective bargaining agreement to follow the provisions of that Agreement, and not to treat its provisions as a floor and act more generously than the contract allows. That is itself a labor violation that rests in sound legal concerns and prohibitions about destroying the union by undermining its purpose and services. But failures to hold the employer to the specific provisions of the union agreement must be enforced by the union, and the union can exercise discretion about when and how to enforce the contract provisions as against the employer.

    These principles may seem to clash but are routinely harmonized in action and practice, albeit sometimes with strange and counter-inutitive results. I have seen numerous situations where the employer exceeded or otherwise departed from the conduct specified by the CBA where the union and employer then agreed to an extension of time for the union to initiate the procedures for enforcing the CBA. I have seen such extensions of time remain in place for years -- 11 years in one case.

    The practical take-away is that there are a lot of rules and regulations but agreements between the employer and the union are as determinative as what is formally negotiated and reduced to contract. If you think about that and all the different ways that fact can play out, informal agreements between labor and management are not sound policy or a principled basis for labor relations, but practicalities are inevitably a major variable in employment matters.

    In all events, the responses that have been offered here are sound, and it is likely that you will not succeed in any class action on these facts. But talk with a local employment attorney in case there are facts that you did not select for posting that might make a difference.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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