As we participate in negotiations (it’s
that time of the year!) and Labor Management Committee
meetings, representing OPBA members, we hear many, many
employers justify their work rules, policies and negotiation
positions by stating something to the effect of “We’re
required to do this by law.” The best response to such
claims is, as our friends in Missouri say, “Show me!” Time
and time again, the employer can’t produce the law to back
up their claims.
Here’s an example. At a recent Labor
Management Committee meeting, we challenged a new rule that
the Employer was implementing: it was requiring employees to
include a specific diagnosis on any request for paid sick
leave. Under the collective bargaining agreement, employees
are allowed to use their accrued sick leave for taking care
of sick family members, and the Employer wanted employees to
indicate on their sick leave requests what illness their
family members suffered. We had many objections to such a
requirement, and the Employer responded to us that some law
required them to get such information. To which we
responded, “What law?”
We gave the Employer until our next LMC
meeting to get us the law. The Employer did not do so. Its
next position on the subject was that the law didn’t
“require” the information but the law did allow them to ask
for it. Again, we responded, “What law?” The Employer still
could not produce any reference to or copy of a specific law
or regulation. We are still waiting for any justification
for the Employer’s proposed rule. Our challenge to the
Employer on the issue has accomplished two things: first, we
have let the Employer know that we will hold it accountable
for what it tells us, and second, we have created a
foundation upon which we can challenge any effort by the
Employer to implement or enforce its proposed rule.
We hear the same type of justification
(“the law requires it”) for rules concerning access to
public records, internal communications, access to Union
representation, publication of employment-related materials
and internal investigations. Sometimes employers do have
legal justification for implementation of work rules and
policies that are not part of the collective bargaining
agreement. Our point is that we should require all employers
to prove such justification before we accept the legitimacy
of the rules and regulations.
Engaging the Employer through the
negotiation or LMC process in discussions about why rules
and policies are necessary – and really looking at the
stated justification - may not result in the Employer
backing down from implementation of the rule or policy. But
many Employers will reconsider enforcement and/or
implementation of new rules when their stated reason for
implementation is shown to be false or misleading.
The OPBA provides access to legal counsel
for its members, and the OPBA attorneys are great resources
for helping OPBA members sort truth from fiction when an
employer claims “the law requires that we do this.” Contact
your OPBA representative the next time you hear an Employer
make such a claim, and find out if it’s true.
