Unit 7 Chapters 11 & 12

1. Unit 7Chapters 11 & 12 LABOR LAW AND COLLECTIVE BARGAINING And EMPLOYEE RIGHTS AND DISCRIMINATION FS208:Legal Aspects of Emergency Services

2. Unit 11 Labor Law and Collective Bargaining Professor Thomas Luby FS208:Legal Aspects of Emergency Services

3. Collective Bargaining • The process whereby an employer and duly appointed representatives of the employees negotiate an agreement pertaining to wages, hours, and other terms and conditions of employment • Intended to minimize the disruption to the economy that accompanies labor unrest • The concept of bargaining in good faith • Fairly, open minds, effort to reach a mutually satisfactory agreement. • Governed by State Law • Differs from State to State FS208:Legal Aspects of Emergency Services

4. Right to Work States • States that have statutes that expressly prohibit union security agreements, as well as any agreement or requirement that an employee join or pay dues to a union as a condition of employment, whether in the public or private Sector Example: South Carolina • Statutes that expressly prohibit union security agreements Example: An agreement or requirement that an employee join or pay dues to a union as a condition of employment FS208:Legal Aspects of Emergency Services

5. Public-Private Sector Labor Relations • Private Sector • National Labor Relations Act – 1950 • National Labor Relations Board (NLRB) • Administer and enforce NLRA • Public Sector • Bargaining governed by State Law • No Constitutional rights • Except-Florida, New Jersey • In State Constitution • States • Adopted variety of statues and organizational structures • Addresses public sector labor relations • Models public sector laws FS208:Legal Aspects of Emergency Services

6. Private Sector vs. Public Sector • All must comply with the 14th and 1st Amendment • Goals are politically driven • Political Activism • Firefighters engage in political activities • Exert political pressure • Politicians • Can take a ‘hard stance’ against public employees • Politics less of tactic in the private sector FS208:Legal Aspects of Emergency Services

7. Arbitration • Dispute resolution mechanism • Mediation • Labor impasse tool • Independent third party facilitates • in reaching an dispute resolution • Fact-Finding • Independent party or panel appointed • investigate and report the facts related to an impasse • Voluntary Arbitration • The parties voluntarily agree to submit some or all of their unresolved issues to arbitration FS208:Legal Aspects of Emergency Services

8. Arbitration (continued) • Compulsory binding arbitration • Unresolved issues are submitted to an arbitrator, or arbitration panel • Final ruling is binding on all parties FS208:Legal Aspects of Emergency Services

9. Arbitrator • No inherent power to enforce a decision • If one party refuses to comply with a grievance arbitration decision, or seeks to challenge the validity of a decision, the matter must be brought to a court for determination of the issues and enforcement. • Issue brought to a court for determination of the issues and enforcement FS208:Legal Aspects of Emergency Services

10. Judicial Review • Generally limited to questions of corruption, fraud, or the arbitrators exceeding their authority • Most courts give substantial deference to arbitrators’ rulings • Some courts will investigate if powers were exceeded FS208:Legal Aspects of Emergency Services

11. Weingarten Rights • An employee has a right to union representation at any meeting that could result in disciplinary action • The meeting must be investigatory in nature. • Purpose is to discuss or convey management’s complaints • Employee’s performance in a non-disciplinary manner • Ensure that the employee’s n rights have not been denied by not having a union representative present FS208:Legal Aspects of Emergency Services

12. Garrity Rights • A firefighter is accused of some wrongdoing that may constitute a crime … • If they answer the questions, they may be convicted of a crime • If they refuse to answer the questions they may be disciplined for insubordination. • In order to invoke one’s Garrity rights, the employee must announce that he or she wants the protections • The employee is invoking his or her right against self-incrimination. • Any statements made after invoking Garrity may be used only for department investigation purposes, but not for criminal prosecution purposes. FS208:Legal Aspects of Emergency Services

13. Summary • Collective bargaining is the process whereby an employer and the duly appointed representative of the employees negotiate an agreement pertaining to wages, hours, and other terms and conditions of employment • Public sector employees fall under the jurisdictions of state labor relations acts • Strikes by public employees are illegal in most states, • Private sector employees are subject to the National Labor Relations Act. FS208:Legal Aspects of Emergency Services

14. Summary (continued) • Many states provide for mediation, fact-finding, or arbitration of labor disputes involving firefighters as tools to resolve collective bargaining impasses, and avoid the prospect of a strike. • Employees are entitled to union representation when being disciplined, or questioned about a matter that may lead to disciplinary action. • Weingarten Rights FS208:Legal Aspects of Emergency Services

15. Summary (continued) • Firefighters cannot be ordered to disclose matters that may incriminate themselves, under threat of being disciplined if they remain silent. • Garrity rights • Require the employer to make a decision when questioning such a member, and decide whether the member can remain silent without consequence in his or her employment, or be ordered to disclose information, in which case he or she cannot be prosecuted FS208:Legal Aspects of Emergency Services

16. Chapter 12 Employee Rights and Discrimination Professor Thomas Luby FS208:Legal Aspects of Emergency Services

17. Civil Rights Law • Civil Rights Act of 1866 • Prohibit discrimination against the recently freed slaves by government and public officials, and provide a means of enforcing the rights that were granted FS208:Legal Aspects of Emergency Services

18. Discrimination • Treats another person differently because of a prohibited classification • Fourteenth Amendment’s equal protection clause is the constitutional basis for the prohibition against illegal discrimination. • Disparate Treatment • particular victim (or group of victims) is treated differently because of a prohibited classification FS208:Legal Aspects of Emergency Services

19. Affirmative Action-Equal Opportunity • Equal Opportunity • The right of a person to compete for a job and/or to be promoted on the basis of his or her knowledge, skills, and abilities, free from unlawful discrimination • Affirmative Action • Positive steps taken to increase the presence of minorities and women in the workforce and in education FS208:Legal Aspects of Emergency Services

20. Americans With Disabilities Act (1990) • Prohibits discrimination against a person on account of a disability, including employment discrimination FS208:Legal Aspects of Emergency Services

21. Summary • Employment discrimination remains one of the most heavily litigated areas for fire departments, and will likely remain so for the foreseeable future • State and Federal laws prohibit a broad variety of discrimination, including discrimination based on race, national origin, sex, religion, disability, and age. • Create a comprehensive prohibition against employment discrimination that impacts fire departments when recruiting, hiring, promoting, disciplining, terminating, and retiring personnel. FS208:Legal Aspects of Emergency Services