Union Contracts: Federal Law Override?

The relationship between unions and federal law is complex and multifaceted. Unions are governed by a variety of federal laws, including the Fair Labor Standards Act (FLSA), which sets minimum wage and overtime requirements, and the National Labor Relations Act (NLRA), which allows unions and employers to enter into union-security agreements. Collective bargaining agreements (CBAs) are contracts between unions and employers that aim to ensure fair wages and safe working conditions for employees. While CBAs may overlap with federal regulations, such as the FLSA and the Occupational Health and Safety Act, the question of whether a union contract can override federal law is a complex legal issue that likely depends on the specific circumstances and the relevant federal laws in question.

Can a union contract override federal law?

Union-security agreements

There are two common types of union-security agreements:

• Closed shop: The employer agrees to hire only union members, and an employee who resigns from the union must be dismissed. While banned in most Western European countries and prohibited in the US through the Taft-Hartley Act, it was compulsory in New Zealand as of 1988 and is still the norm in Mexico due to political ties between unions and the governing party.
• Union shop: The employer may hire anyone, but the employee must join the union within a set time, often 30 days, and an employee who resigns from the union must be dismissed.

Impasse and bargaining in good faith

When a union is certified by the National Labor Relations Board (NLRB) or recognised by an employer, the law requires both the union and the employer to bargain in good faith. Good faith bargaining is a nuanced concept that can be quite simple and complex at the same time. The basics include the parties meeting at reasonable times and bargaining over terms and conditions of employment for the bargaining unit. However, the NLRB has a very narrow interpretation of what a good faith bargaining impasse consists of. An impasse only occurs when both parties determine that further bargaining would be futile.

The NLRB considers several factors when deciding whether a real impasse exists, including the history of negotiations and the understanding of both parties. The party declaring impasse must prove its existence, but this is tricky because a union will never declare impasse. This is why an employer's quick declaration of a good faith bargaining impasse is risky. The NLRB will consider the "totality of the circumstances" when evaluating the situation.

If, after sufficient good faith efforts, no agreement can be reached, the employer may declare an impasse and implement the last offer presented to the union. However, the union may disagree and file a charge of an unfair labour practice. If the NLRB finds that an impasse was not reached, the employer will be asked to return to the bargaining table. In extreme cases, the NLRB may seek a federal court order to force the employer to bargain.

There are some exceptions to good faith bargaining. For instance, an employer does not need to bargain over policies that do not directly affect the terms and conditions of employment. Additionally, if there is a regular and long-standing practice of a process that alters the terms and conditions of employment, it may be continued without first bargaining. Examples include annual bonuses and automatic pay increases.

Picket line misconduct

Picketing is a common tactic used by unions to pressure employers during labour disputes. While federal law protects employees' right to strike and picket, there are limitations to this protection. Employees can be lawfully terminated for participating in an unprotected strike or for engaging in picket line misconduct.

For example, unions are required to honour valid dual-gate systems, which are established to separate union and non-union contractors during a labour dispute. If a union fails to respect this system by picketing at the neutral gate designated for union contractors, it is considered unlawful conduct. In such cases, an Unfair Labour Charge can be filed, and the National Labor Relations Board (NLRB) may seek a federal court injunction to prevent the union from continuing its unlawful picketing.

Additionally, unions are not permitted to instruct or encourage their members to refuse to enter a neutral gate or to leave a job site and refuse to work when a neutral gate has been established. Engaging in such tactics can be considered picket line misconduct, and unions can be disciplined for violating their members' rights.

It is important to note that while unions have the right to strike and picket, they must do so within the boundaries of the law. Unions and their members must be aware of their rights and responsibilities during labour disputes to ensure that their actions remain protected and do not result in misconduct.

Federal minimum wage

In the United States, the federal minimum wage for covered non-exempt employees is $7.25 per hour. This rate was last updated in 2009 and has not changed since. The federal minimum wage law was first enacted in 1938, setting the minimum wage at 25 cents per hour. While the minimum wage is $7.25 per hour at the federal level, many states have their own minimum wage laws, and these may set a higher rate than the federal minimum. In such cases, employees are entitled to the higher of the two minimum wages. For example, Washington, D.C. has the highest minimum wage rate in the country at $17.50 per hour.

The federal minimum wage provisions are outlined in the Fair Labor Standards Act (FLSA). The FLSA is a federal statute that applies to all businesses, with rare exceptions. Under the FLSA, companies must pay their employees at least the federal minimum wage or the state minimum wage if it is higher. The FLSA also covers standards for child labor and overtime pay, requiring businesses to pay hourly, non-exempt workers overtime if they work more than 40 hours in a workweek.

While the FLSA sets the minimum wage at the federal level, some exceptions and special considerations exist. For example, employers may pay tipped employees a minimum of $2.13 per hour, as long as the hourly wage plus tip income equals at least the minimum wage. Additionally, youth under the age of 20 may be paid a reduced wage of $4.25 per hour for their first 90 consecutive calendar days of employment.

There have been discussions and proposals to raise the federal minimum wage. In 2020, during the COVID-19 pandemic, support for increasing the federal minimum wage grew, with polls indicating that 72% of Americans were in favor of a raise. In 2021, the Congressional Budget Office estimated that incrementally raising the federal minimum wage to $15 per hour by 2025 would impact 17 million employed individuals and potentially lift 900,000 people out of poverty. However, it was also projected to reduce employment by approximately 1.4 million people and increase the federal budget deficit.

Civil rights laws for federal contractors and subcontractors

In the United States, federal laws and regulations apply to federal contractors and subcontractors. These laws and regulations cover a range of areas, including civil rights, labour standards, and wage and hour laws.

One key civil rights law that applies to federal contractors and subcontractors is the requirement to comply with the nation's civil rights laws in their employment, procurement, and contracting practices. This includes not considering race, colour, sex, sexual preference, religion, or national origin in ways that violate civil rights laws. Federal contractors and subcontractors are also prohibited from discriminating against individuals on these bases and must ensure that no one attempts to intimidate or discriminate against an individual for filing a complaint related to civil rights violations.

Additionally, federal contractors and subcontractors must comply with the Pay Transparency Nondiscrimination Provision and post it in conspicuous places available to employees and applicants. They are also required to display the "Know Your Rights" poster, which is available in English and Spanish, in conspicuous places accessible to employees, job applicants, and union representatives.

In terms of labour standards, the Fair Labour Standards Act (FLSA) sets the ground-floor requirements for wages and overtime pay. The FLSA applies to businesses, and while it is a federal statute, it is generally applicable to all businesses with some rare exceptions. Under the FLSA, companies must pay their employees at least the federal minimum wage or the state minimum wage if it is higher. Additionally, businesses must pay the federal overtime rate for hours worked beyond 40 hours in a workweek. It is important to note that collective bargaining agreements (CBAs) may provide for a different rate in limited situations.

In summary, federal contractors and subcontractors in the United States must adhere to civil rights laws, labour standards, and wage and hour laws. They are required to ensure non-discrimination, transparency, and compliance with federal and state wage and hour regulations.

Frequently asked questions