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Understanding Status Quo in Labor Relations: Phases and Legal Obligations

This article by Deborah C. Brown Thompson, Sizemore, Gonzalez & Hearing, P.A. delves into the complexities of the status quo in labor relations across different phases: pre-election, post-certification, during contract, and post-contract expiration. It outlines the obligations, nuances, and legal frameworks governing these phases, including the impact of past practices, collective bargaining agreements (CBAs), and waivers. The discussion highlights important legal precedents and emphasizes the significance of clear contract language and the implications of union rights and obligations.

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Understanding Status Quo in Labor Relations: Phases and Legal Obligations

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  1. DEFINING AND CHANGING THE STATUS QUO By Deborah C. Brown Thompson, Sizemore, Gonzalez & Hearing, P.A.

  2. The Framework • Relationship Phases • Pre-Election • Post-Certification/Pre-Contract • During Contract • Post-Contract Expiration

  3. Pre-Election • Very straightforward • Bright-line test (obligation co-extensive with certification) • Some nuances do exist: • Laboratory conditions • Restraint/coercion or encouragement/discouragement of membership

  4. Post-Certification • “Status quo” attaches • Defined by policies, past practice • Change in union voids CBA unless otherwise agreed • To lawfully change requires agreement, impasse resolution, or exigent circumstances (but can defend unilateral change charges in other ways too)

  5. Post-Cert, Pre-CBA • Obligation to bargaining over changes in mandatory subjects • No waiver by contract language (because no contact) • Can still have waiver granted, or waiver by inaction

  6. Post-Cert, Pre-CBA for New Union Taking Over • No grievance and arbitration yet (because no contract) • Union release time does not carry over • Old CBA with prior union may be relevant factor in determining status quo for other terms if continued as a practice

  7. Defining Past Practice • Disjunctive test • Unequivocal • Extended period of time • Unit employees could reasonably expect to continue

  8. Once CBA Reached • Hierarchy changes: • Contract language first, and always prevails • Past practice only if ambiguity or silence • So what obligation once agreement reached?

  9. Bargaining During Term • No obligation for what you have already bargained • Mandatory subjects unaddressed in contract may trigger obligation unless waiver or some other excuse

  10. After Expiration • Same basic framework • Contract language first • Orange County Sheriff: no extrinsic evidence of past practice if contract language explicit • But Not Everything Continues…

  11. Specific Issues • Grievance and arbitration • Step plans • Waiver of bargaining rights • Union release time • Other

  12. Grievance and Arbitration • Typically yes, if post-contract and one has been negotiated • Parties can agree to limits, including definition of grievance limited to circumstances arising during contract term • Cannot impose post-contract expiration elimination of right to arbitrate

  13. Step Plans • Recent litigation has centered on express contract language • Generalized language not always helpful by itself in extinguishing status quo continuation • Explicit and date-restricted language on cessation of steps when wage reopener exercised is usually best

  14. So What About Waiver? • Recent cases indicate waiver can and sometimes does continue post-contract (compare FSU and USF API cases) • To what extent since waivers must be clear and unmistakable?

  15. More on Waivers • Usually hinges on contract language • Arguably a harder case with extra-contractual issues (looking for the conscious yielding) • Passage of time may affect outcome in post-expiration cases

  16. Other Issues • Institutional benefits v. union rights • Statute of limitations

  17. Defenses to Unilateral Change (Refusal to Bargain) • Lack of effective demand • No impact on collective interests of unit • No showing of negotiable impact (for changes involving management rights) • Waiver • Impasse resolution • Beyond our scope today: changes via the “financial urgency” path

  18. Questions?

  19. Speaker Information Deborah C. Brown Thompson, Sizemore, Gonzalez & Hearing, P.A. 813-273-0050 dbrown@tsghlaw.com www.tsghlaw.com

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