Failure to rehire laid-off workers first may violate union contract

Can They Do That?

Your Money

September 05, 2004|By Carrie Mason-Draffen

I worked for a unionized company that laid off 30 of us last year. When we received the layoff notice, it said we would be on a callback list for three years. My co-workers and I never got a call. Yet the company recently held an open house for new hires. Is this legal?

It depends. Perhaps the company is hiring in different job classifications, said lawyer Jeffrey Schlossberg of Ruskin Moscou Faltischek in Uniondale, N.Y. But then again, maybe not.

If you suspect the new positions are the same jobs you and your former co-workers held, the first thing you must do is read the union contract to determine your "recall rights," Schlossberg said.

"A lot depends on what the exact words say in the collective bargaining agreement," he said. If you suspect the company breached the contract, you need to turn to the union for help. "If the employer is not in compliance with the contract, the employee's only remedy is to require that the union assert a grievance on his behalf."

If the union refuses to pursue a grievance, you and your former co-workers may be able to sue both the employer and the union, the former for breach of contract, the latter for "breach of the duty of fair representation," Schlossberg said. But such allegations aren't easy to prove, he warned.

"The circumstances under which such a claim can be asserted against the union and employer are limited and require a very fact-specific analysis of the circumstances involved," Schlossberg said.

Carrie Mason-Draffen is a columnist for Newsday, a Tribune Publishing newspaper. E-mail her at yourmoney@tribune.com.

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