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DEFINING AND CHANGING THE STATUS QUO

DEFINING AND CHANGING THE STATUS QUO. By Deborah C. Brown Thompson, Sizemore, Gonzalez & Hearing, P.A. The Framework. Relationship Phases Pre-Election Post-Certification/Pre-Contract During Contract Post-Contract Expiration. Pre-Election. Very straightforward

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DEFINING AND CHANGING THE STATUS QUO

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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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