Over the years, Congress has handed out to U.S. workers a sweeping variety of rights -- and management has tried to get those same workers to give up those same rights as part of collective bargaining contracts.
It has become the role of the federal courts to define just which perogatives are fair fodder for the bargaining table and which are sacrosanct, not to be trifled with by unions or management.
For giving up a right is certainly not, in itself, a bad thing. It may be at the very heart of reaching a deal. The most obvious example: the right to strike. If a union wasn't willing to give up that privilege as part of the labor contract, it is unlikely that any labor contract would ever be signed. As a string of decisions over the past decade has explained it, the key question is: What kind of rights are they? The U.S. Supreme Court in 1974 ruled that statutory provisions like the right to strike "are conferred on employes collectively to foster the process of bargaining and properly may be exercised or relinquished by the union as collective-bargaining spent to obtain economic benefits for union members."
But other kinds of labor laws are meant to set minimum standards that society will tolerate, and a union cannot agree, for higher wages or more job security, to work more than 40 hours a week at straight time or to let management ignore the job safety rules laid down by the Occupational Safety & Health Act or the Federal Coal Mine Health & Safety Act. The unions also cannot give away rights that were meant for individuals, rather than the collective group of workers.
The question most recently came to the fore when the U.S. Court of Appeals in Chicago told Calumet County, in East Central Wisconsin, that it could not fire its deputy clerk simply because she had reached the age of 65. The county argued that despite the federal laws that makes it unlawful to fire someone on the basis of age before he or she reaches 70, this discharge was legal because the clerk's union had agreed that retirements at 65 -- standard before the Age Discrimination in Employment Act was extended to local governments in 1974 -- could continue.
It is not at all clear that the union had in fact waived its members' right not to be put out to pasture at 65. All it had agreed to was the country government continuing "all amenities and practices" in effect at the time the collective bargaining agreement was reached and not mentioned elsewhere in the agreement. But that was more or less beside the point to the appeals court majority. The key point is that a union cannot give up its members' rights under the ADEA.
The Supreme Court has already decided that a union cannot override the demands of the 1964 Civil Rights Act that hiring and promotion be done without regard to race or sex. That demand, the court explained, "concerns not majoritarian processes, but an individual's right." And the same is true for the rights of oldsters, the Chicago judges decided in the Calumet County case. Union majorities have not always cared much about the rights of minorities in their ranks, pointed out Judge Harlington Wood Jr., and "this is true of age discrimination in the workplace, where younger workers invariably outnumber those near retirement age and the best interests of younger and older workers naturally conflict."
That is not just theory. The county's argument that the union had meant to let it continue to make 65 the mandatory retirement age claims that the concession was given in return for the government's taking on the full job of paying into the retirement fund -- a task that has previously been shared by the county and the employes.
That is just the kind of deal the majority would be happy to strike, Wood says, since the savings in not having to make contributions to the fund would be felt immediately, and the impact of a forced retirement at 65 would come years later, when they might not even be working for Calumet any more. And the whole idea of the law against age discrimination was to prevent just this sort of trammeling on the few who are nearing retirement, he ruled.
But if the union cannot ride roughshod over the right of its members not to be forced into retirement before 70, can an individual worker waive that right? What if the country had signed a deal with the deputy clerk under which she got a bonus during the years she was 62, 63, and 64, and in return she promised to leave her job when she turned 65? The judges have not tackled that problem yet. But Wood suggests that such a deal "may be so coercive as to amount to an involuntary retirement or discharge under the Act, despite the appearance of the employe's consent."
The obvious message to management: don't try to find ways around the ban on retirement before 70: they are likely to lead to expensive litigation and not to change retirement policy.