Glossary of Labor and Legal Terms

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Abeyance – The condition of being undetermined. To hold in abeyance is to place a pending motion (e.g. grievance) outside the time limits until some future time when it may be taken up and processed.

Ad hoc – A Latin phrase meaning “for this,” as in “for this special purpose.” An ad hoc committee, for instance, is not a permanent or standing committee, but exists only for as long as the committee’s special job remains to be done.

Administrative law judge – Official who conducts hearings and makes recommendations to PERB (Public Employee Relations Board) or the NLRB (National Labor Relations Board) or other government agency.

Affidavit – A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the person making it.

Agency Shop Fee – The obligation or practice of a government to deduct from the salary of a public employee who is not a member of the certified or recognized union which represents those employees for the purpose of collective negotiations. The amount is equivalent to the amount of dues payable by dues-paying members.

Arbitrary – A phrase describing an action or decision which is made without cause or without consideration of an objective standard, and is fundamentally random in nature.

Arbitration – The final steps in most grievance procedures. A method of settling a labor-management dispute by having an impartial third party hold a formal hearing, take testimony, and render a final and binding decision. See also “interest arbitration” and “rights arbitration.”

At-will – Under common-law, this phrase describes the relationship between employer and employee that exists without a written contract or other agreement guaranteeing job security. An at-will employee may be terminated at the will of the employer without reason or cause. See also “wrongful termination,” “arbitrary,” and “just cause.”

Bargaining Unit – Employees in job classifications covered by the union contract. In agency shops, employees can be in the bargaining unit and enjoy the benefits of the contract, but not be union members with voting rights. The union has an obligation to represent all members in the bargaining unit regardless of union membership status.

Bona fide – A Latin phrase meaning “good faith.” Normally it is used to mean real, actual, genuine, or not feigned.

Boycott – The refusal to deal with, buy, supply or handle the products of a business as a means of exerting pressure in a labor dispute. See also “secondary boycott.”

Bumping – Where seniority rights are contained in a collective bargaining agreement, a contractual right whereby employees scheduled for layoff are permitted to displace less senior employees in other jobs for which they are qualified.

Broad banding – The replacement of a salary schedule or pay classification system that has numerous salary grades or levels with one that has only a few “bands” that each carry wider pay-range spreads.

Capricious – A phrase describing an action or decision which is made without cause or without consideration of an objective standard, and is totally subject to the whim or pleasure of the person or party in power.

Check off – An arrangement under which an employer deducts from the pay of employees the amount of union dues/agency fee they owe and turn over the proceeds directly to the treasurer of the union.

Class action – A lawsuit in which the plaintiffs proceed not only on their own behalf, but on behalf of all others similarly situated or affected. Class action status can only be accorded by a court after certain requirements have been met.

Coercion – Economic or other pressure exerted by an employer to prevent the free exercise by employees of their right to self-organization and collective bargaining; also, intimidation by a union or fellow workers to compel affiliation with the union.

Collective Bargaining – The process of negotiating an agreement between the employer and the union. It is used to negotiate contracts to resolve issues and disputes over new or changed conditions which arise while the contract is in effect. In collective bargaining, the union negotiating committee speaks for all its members of the bargaining unit. Proposals on issues are discussed, debated and eventually agreed to by both sides.

Collective Bargaining Agreement – An agreement between the employer and the union which spells out pay, benefits, working conditions and rights on the job for faculty and professional staff in the bargaining unit. It covers a specific period of time and is a legally-binding document, which is enforced by arbitration and the courts.

Color of law – The appearance of semblance, without the substance of a legal right. Misuse of power—possessed by virtue of state law and made possible only because wrongdoer is clothed with authority of state—is action taken under color of state law.

Common law – The body of laws and legal principles derived from English legal history that was accepted and, therefore sewed as the framework for early American law. Different from any specific law enacted by the government, common law justice derives its authority from the usages and customs of immemorial antiquity.

Concerted activity – Action taken by an employee or employees (generally on behalf of fellow-workers) in order to improve their working conditions or benefits. Bargaining law considers this type of activity protected from retaliation or reprisal.

Constructive discharge – In some cases, a resignation provoked by management’s harassment that is so unbearable that the resignation may be construed by the court or an arbitrator as a form of discharge, restoring the employee’s right to grieve or hold the employer liable for violating the employee’s due process rights.

Contract language – The actual words of the collective bargaining agreement. Despite all the time spent debating contract language in negotiations, the union and the employer may still interpret the words differently, leading to grievances and sometimes arbitration.

Damages – Cash which may be recovered in the courts by any person who has suffered a loss or injury as a result of another’s unlawful or negligent act or omission. See also “liquidated damages” and “tort.”

De minimis – Short for the Latin phrase, de minimis non curat lex, which means the law does not concern itself with trifles. The phrase may be used to describe a violation of law which is so small that it is not worth litigating.

De novo – Latin for anew or afresh. An appeal hearing is de novo when all evidence and proof considered at the prior hearing must be reintroduced and reconsidered.

Decertification – The withdrawal by the labor board of a union’s designation as exclusive representative usually as a result of the loss of an election called for by employee petition.

Defamation – Injury to a person’s character, fame or reputation, by false and malicious statements (may be libel and/or slander). In some cases an employer’s blacklist or poor reference may be defamatory.

Discipline – The process by which the employer notifies an employee that some area of his/her work is not satisfactory. Under the PSC contract, Article 21 contains a disciplinary process that provides for the basis for disciplinary action, the procedures for imposing discipline and the procedures for due process and challenging the actions of management.

Discrimination – Unfair or unequal treatment of one employee or a group of employees who are members of a protected class. These include race, sex, national origin, religion, age (over 40), and disability. State law further protects ancestry, marital status, as well as arrest and court record (in most cases). In addition, the Taylor Law of New York State protects against discrimination based on union activity or union membership. Discrimination may occur in hiring, tenure of employment or any other term or condition of employment.

Double jeopardy – A principle of constitutional justice that prohibits imposing two or more punishments for the same offense, and protects defendants from being tried twice for the same crime.

Due process – The constitutional guarantee that no person shall be deprived of his life, liberty or property without due process of law, meaning ordinarily the right to a fair and objective hearing, or trial by jury as provided by whatever rules or laws are governing.

Duty of Fair Representation – The union’s legal responsibility to represent all employees in the bargaining unit fairly and equally, without hostility, discrimination, favoritism or personal bias. Union’s officers and grievance counselors must make sure their actions don’t discriminate against employees who oppose the union, who are unpopular or who aren’t union members.

Executive Committee – The leadership body of the union local, responsible for overseeing the work of the local. Most local executive bodies include the local officers and other representatives of the membership.

Family Medical Leave Act (FMLA) – The FMLA guarantees workers unpaid leave without penalty for certain personal or family illness, pregnancy, birth or adoption of up to 12 weeks unpaid leave which may run concurrently with any accrued sick or annual leave.

Featherbedding – Controversial practices which tend to limit productivity and create an increased demand for workers, such as demanding payment for work no longer performed by workers because of automation.

Fiduciary obligation – The obligation or trust imposed by law on officials of an organization making them liable for the proper use and disbursement of the organization’s money, funds and property. As applied to a pension fund trustee or a union officer, the duty to act exclusively for the benefit of the plan participants, or union members, respectively.

Free riders – A term used by unions to designate non-members within the bargaining unit in the private sector who obtain, without cost, the benefits of a contract gained through the efforts of the dues-paying members.

Front pay – A remedy sometimes awarded by the courts to victims of discrimination where it is impractical to order reinstatement. A front pay award leaves the incumbent in place and orders the employer to pay the discriminated party an amount equivalent to what it is reasonable to estimate he or she would otherwise have earned in future employment.

Garnishment – A procedure, usually resulting from court action, whereby a portion of an employee’s wage is deducted and paid directly to a creditor.

Good faith – A legal requirement arising out of Section 204 of the Public Employee’s Fair Employment Act (Civil Service Law, Article 14) otherwise known as The Taylor Law on both the union and the employer (where the union is certified as the exclusive representative). Enforced by the Public Employee Relations Board. It is the mutual obligation of the employer and the union to “meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.

Grandfather – An exception provided in a contract article that either exempts or continues a prior benefit to those covered employees who were employed prior to the negotiation of that article.

Grievance – A formal complaint usually lodged by an employee or the union alleging a misinterpretation or improper application of one of more terms in a collective bargaining contract. The method for dealing with grievances is through a grievance procedure negotiated in the union contract. If a grievance cannot be settled at the supervisory level, it can be appealed to a higher level of management, and finally to arbitration if so provided.

Hostile environment – Continuous, low-level discriminatory remarks or behaviors that cumulatively “poison” the workplace for the aggrieved victim enough to alter the terms, conditions, or privileges of the workplace, and are commonly considered by the courts and the Equal Employment Opportunity Commission as equivalently unlawful to more overt forms of discrimination.

Indictment – A document prepared by the District or Prosecuting Attorney and approved by the grand jury which charges a person with the commission of a crime.

Injunction – An order of a court or agency requiring a person to do or not to do a certain act. Failure to abide by the terms of a court injunction may result in the court arresting and jailing the person for contempt of court.

Interest arbitration – The arbitrator, instead if interpreting and applying the terms of an agreement to decide a grievance, is authorized to determine what provisions the parties are to have in their collective bargaining agreement.

Judicial review – A case brought before a court to determine if the decisions made by a labor board or other government agency are legal.

Jurisdiction – 1. The boundaries of a union’s representation as determined usually by the type of work an employee performs. 2. The boundaries or authority of a given court of law which govern, for instance, where a suit or a claim should properly be filed.

Just cause – A due process provision commonly negotiated into a collective bargaining agreement that requires the employer to demonstrate proof of an employee’s guilt before taking disciplinary action like suspension, or termination. Without such a protection, common law generally allows employers to terminate employees at-will (without cause).

Liquidated damages – A court award available under some laws (Equal Pay Act) where the employer’s violation was either willful or in reckless disregard of the law or the employee’s rights thereunder. Such award generally provides for attorney fees and an amount equal to and in addition to the lost wages and benefits.

Lockout – Shutdown of a worksite by the employer to discourage union membership or activity or to force employees to meet the demands or economic terms of the employer.

Make whole – A term used in grievance settlements which require that the employer restore the employee with everything lost because of the contract violation. “Make whole” covers not only back pay and benefits, but, where applicable, overtime, promotions, workload, and removal of documents from a file.

Mediation – The attempt by an impartial third party, called a mediator, to bring the parties in a dispute together and assist them in reaching settlement. The mediator, however, has no power to force or award a settlement but works instead to persuade the parties to reach agreement.

Open shop – A bargaining unit in a company or workplace at which the workers, though represented by a duly-elected union, are not required to pay the union dues or service fees for representation which the union is nevertheless legally required to provide.

Past practice – A particular working condition, benefit or custom that has been in existence and deeply ingrained over a period of time such that it is regarded as part of the whole agreement and, therefore, enforceable by arbitrators. A policy or benefit covered or not covered by the Agreement, which has been in effect for a while and accepted by the union and management. When management changes a past practice, without discussion with the union, the union may grieve the change as a past practice.

Plaintiff – The one who sues. The moving party in a civil law suit who is bringing the complaint against a defendant.

Preponderance – A greater weight of evidence, or evidence that is more believable and convincing in comparison to that which has been presented by the other party in a suit or grievance.

Presumption – An advantage of proof legally accorded to one side in a suit or a trial that in the absence of any evidence or without convincing evidence to the contrary that party’s argument or version of the facts shall be accepted as true, and the burden of proof rests with the opposite side.

Pretext – A legal excuse to do something which otherwise would be illegal. In discrimination cases, for instance, it may be shown that the apparently innocent motive behind an action may conceal a discriminatory intention.

Quid pro quo – A Latin phrase meaning literally, “what for what.” The phrase describes an implied or expressed expectation that one party will get something if something else is given up. Quid pro quo sexual harassment, for example, is the most overt form of harassment in which the harasser makes it clear that failure to submit to the sexual demand will result in loss of employment or some other right, opportunity or benefit.

Rank and file – The membership of a union or similar organization as distinct from the organization’s leadership, officers, and/or staff.

Recognition – The employer’s acknowledgement of a union as the exclusive bargaining agent for the employees, given either voluntarily upon evidence of an employee petition, or by legal requirement after an election conducted by the government.

Retrenchment – Adoption of a smaller scale of operations in an organization, often resulting in layoffs as part of the effort to reduce the work force.

Rights arbitration – The appeal of an unresolved grievance to an impartial arbitrator for final and binding determination. Sometimes called “grievance arbitration.” The arbitrator determines the meaning of the contract and clarifies and interprets its terms. Arbitration, where it is available, is usually the last step in the grievance procedure.

Scab – A union term generally applied to a worker who refuses to join coworkers in a strike. Sometimes applied to members of a non-striking union who pass through a striking union’s picket line.

Secondary boycott – A boycott or the picketing by employees and/or a union of a business not directly involved in a labor dispute for the purposes of bringing pressure to bear on the business of an employer who is. See also “boycott.”

Solicitation – Asking; selling. An employer may have a “no solicitation” rule to prohibit employees from union organizing at work, but the rule may not be valid if the employer allows other forms of solicitation such as fund-raising ticket sales, etc.

Statue of limitations – The provisions in any law or laws that limit the time when a plaintiff may bring suit or the time before which the defendant may be liable for losses or damages.

Stipulation – An agreement between the parties to mutually accept some facts or evidence as true and undisputed.

Strike – A concerted stoppage or slowdown of work.

Subpoena – A process document issued out of court requiring a witness to attend. A subpoena duces tecum further requires the witness to bring relevant books or records.

Substantial evidence – A considerable weight of relevant evidence that a reasonable mind would accept as adequate to support a conclusion.

Tort – A wrongful act that violates a person’s private or civil rights and creates a liability under which the victim of the violation may sue the person or persons responsible in civil court.

Union shop – Bargaining units in a company or workplace in which all the workers whom the union is legally required to represent must either pay the union dues or a service fee for its representation.

Vesting – A contractual fight by which an employee, after a designated period of employment, is entitled to the pension benefits earned once his/her service is terminated.

Waiver – The intentional (knowing) and voluntary relinquishment of a known right.

Weingarten rights – So called after a 1974 U.S. Supreme Court decision which ruled that an employee has the right to a union representative in any interview the employer might hold that is intended to investigate a possible discipline charge against the employee.

Whistleblower – An employee or former employee who reports misconduct to government agencies or entities that have the authority to take corrective action.

Without prejudice – Used when a case or grievance is being dismissed, this phrase means that the right or privilege of the complainant to sue again on the same cause of action is not thereby lost or waived. The phrase is used expressly to prevent the dismissal from operating as a bar to subsequent suit or grievance.

Writ – A process (document) of a court, ordering a public officer or a private person to do a certain act.

Wrongful termination – A civil action or lawsuit brought by a discharged employee against the employer, alleging that the termination violated or breached a statutory right, express public policy, or an employment contract. See also “at-will.”