Unions and the Rights of Members Called to Active Duty

Prepared by the USLAW Vets and Military Families Task Force

About 150,000 National Guard members and Reservists have been called up for long-term duty to wage the war in Iraq. Most of the legal and union contract provisions relevant to service in the Guard or Reserves assume short active duty periods. Many young people signed up out of economic necessity, to earn educational benefits, to serve their communities and defend their nation, but are now required to fight in a war of occupation and empire in the Middle East. The net result has been a kind of economic draft of working class families. Those called to serve are forced to pay for this war many times over. Not only do they risk their lives and psychological health, but they and their families also typically suffer economic hardship and loss.

Union members who believe that this war is unjust are especially concerned with protecting those members who have been called to carry it out.

Rights under Law

There can be no discrimination in any employment policy because of military service or veteran status.

Guard members and Reservists, as well as all service people, have rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) passed in 1994.

This law provides that employers must re-employ returning service people in the same job or a similar job, if the service people have followed specified notification procedures and submitted a reinstatement application shortly after completion of service. Time in service is to be counted for seniority, and the returning service person is entitled to all rights and benefits that seniority accumulates.

Note that this situation is not the same as "continued" work. For example, in a case where workers “earned” vacation by work during the previous year, a returning vet was denied vacation his  first year back. In New York, the utility company denied returning vets a bonus given to workers who had worked a certain number of hours in the year.

If the returning service person has a disability suffered in or aggravated by service, the employer must make reasonable accommodations for the original position or offer an equal or the closest possible position in terms of seniority, pay, and status.

Pension benefits that accrue because of seniority accumulate during service. There are certain rights to make up employee payments to pension funds.

Any continuation of benefits that an employer provides for other unpaid leaves must apply to military leaves as well. An employee leaving for the service may opt to pay for medical benefits, in a plan similar to COBRA, for up to 18 months. If the service is less than 31 days, however, the employee gets to keep medical coverage for that time and does not have to pay more than “the employee share,” if any. If the worker serves more than a month, the law is ambiguous on whether the first month falls under this rule or whether the employee has to pay the entire cost of continuation for the first month.

USERRA does not provide for any other payment or continuation of benefits while in the service.

See

www.dol.gov/vets/usc/vpl/usc38.htm (The Law)

www.dol.gov/vets/whatsnew/uguide.pdf (Guide)

Unions will also need to be able to handle problems for those members who fall under special procedures for separation discharges, including hardship, conscientious objection, and disability,

See 

www.objector.org/girights/getting-out.pdf

Some state laws expand on rights. In California, public employees called to active duty are entitled to up to 30 days paid leave status (regular pay in addition to any military pay). (California Military and Veterans Code sections 395.01 and 395.02)

In addition to these rights as California public employees, California school district employees and community college employees who are called to active duty are entitled to pay maintenance and continuation of benefits for up to 180 days. (Education Code of California sections 44018 and 87018)

See 

http://caselaw.lp.findlaw.com/cacodes/mvc/389-398.html

(California Military and Veterans Code)

http://caselaw.lp.findlaw.com/cacodes/edc/44000-44020.html

(California Education Code)

What Unions Can Do

Unions have been particularly concerned about seniority rights, job rights, pay, and benefits for their members called into the service. Most union contracts have provisions on rights and seniority that mirror the rights under USERRA or state laws.

1. Rights Enforcement.

Many unions find it necessary to help enforce their members' rights under USERRA or state laws.

2. Pay

In the areas where USERRA is noticeably weak or absent, many unions have bargained additional protections and benefits for their members. One of the most important is “wage maintenance,” "wage differential," or "make-up pay" (i.e., payment of the difference between service pay and the regular wage). In some cases, union contracts provide for full pay over and above military pay.

Make-up pay is supported by the current climate.  Some companies are concerned with appearing to be patriotic.  So many known for their anti-union and anti-worker practices, including Wal-Mart, GE, and Home Depot, provide pay differential and benefits to employees called up for active duty.

3. Benefits Continuation

Many unions call for continuation of medical and other benefits for those in the service. Here the issue becomes more complicated. Workers called to active duty immediately have military medical coverage. However, especially in the case of injured Guard members or Reservists, there is much evidence that their care is falling through the cracks. A recent General Accounting Office sample of injured Guard members and Reservists found that a third were not being properly cared for and were suffering a financial burden from their medical conditions.

Further, it is easy for family members to fall through the cracks. It is possible to sign up for the government’s TRICARE coverage for family members. While the plan is comparable to most employer-provided plans, like most there are many technicalities and procedural complications.  Family members may have problems with maintaining coverage while in the process of switching plans, and the Department of Defense itself recommends that Reserve members overlap their plans during the transition.

For cost and benefit comparisons with various other medical plans see:

www.tricare.osd.mil/tricarecost.cfm

www.tricare.osd.mil/TRICAREcomparisons/admin/index.cfm

4. Accrued Benefits

Some unions have addressed the employer’s ability to deny short-term accrued benefits like vacations.

In the case of employee contributions to pension plans, the Public Employees Federation of New York State (affiliated with AFT) won the right for members to "buy back" up to three years of military service time for their retirement plan, at a reduced cost.

5. Deal with the Red Tape Issues

Members will depend on their unions to deal with many of new procedures. Many of the rights and benefits depend on having official orders on file with the company. If these get lost, the worker is in limbo. A Ford worker was charged for overtime because he is "local to his command" and does not receive "orders" for monthly weekend Guard duty.

Contract Examples:

Here are some examples of union contract provisions and agreements in this area.

United Auto Workers main contracts

The contract provides for straight-time wage maintenance (payment of the difference between military pay and normal 40-hour pay) for up to 30 days.

An employee with seniority who is called to and attends annual training encampment or is called to and performs active duty because of a local or national emergency as a member of the United States Armed Forces Reserve or National Guard shall be paid an amount equal to the employee's straight-time hourly rate (or in the case of incentive employees, the employee’s earned average straight-time rate including day work earnings) including applicable shift premium, but exclusive of overtime, and any other premiums, on the last day worked (or, in the case of incentive employees, the last four (4) pay periods worked) multiplied by eight (8) or the number of hours less than eight (8) that the employee otherwise would have been scheduled to work, less his daily military earnings (including all allowances except rations, subsistence and travel). (UAW DaimlerChrysler Contract, section 83)

However, after September 11, 2001 many of the corporations under UAW contract agreed to extend wage maintenance, health care, and other group insurance. This coverage has been extended six months at a time, and is now at a maximum of 42 months. As of this writing the extended coverage at DaimlerChrysler will cease as of March 31, 2005, although it may well be extended again.

1199/ SEIU and CWA Local 1168 and Kaleida Health, a five-hospital system in Buffalo, NY, 2000

An employee ordered to annual active duty training with the National Guard or Reserve for two (2) weeks or more and who loses time from work as a result will be paid the difference between their regular basic rate of pay and their lower military training pay for up to thirty (30) days in a calendar year.

Public Employee Unions and State of New York

“Key among these benefits are the continuation of military leave at reduced pay and the continuation of contribution-free health insurance for dependent family members through the conclusion of the employee’s active duty or Dec. 31, 2006, whichever occurs first,” according to Public Employees Federation.

SEIU Local 415 and City of Santa Cruz, December 2004

When employees who have at least one year of City service are called up to active duty military service those employees shall receive the difference between military pay and their current base salary for a period of six months. The employee will be entitled to receive this pay upon submission of proof of active duty, in accordance with the applicable City procedures. The employees who were previously called to active duty shall receive a one-time payment of $1,000.

SEIU Local 2020 and Cambridge Health Alliance

A leave of absence with pay shall be granted to an employee who is a member of the National Guard or Organized Reserve, to fulfill his/her annual tour of duty requirement. This leave period is normally 2 weeks and shall not exceed 17 calendar days.

SEIU Local 503 and State of Oregon, 2003

Provides for a leave of absence with pay for National Guard or reserve active duty for the first 15 days

SEIU Local 2020 and Lawrence General Hospital

An employee who is called for an annual two-week Military Reserve Training or National Guard training shall be paid the difference between their regular earnings and military pay and allowances. The employee shall have her military pay certified by her commanding officer.

IBT Local 705 and UPS

The employer, in its discretion, may make additional payments or award additional benefits to employees on leave for service in the uniformed services in excess of the requirements outlined in USERRA.

Upon notification from an employee that he/she is taking USERRA qualified leave, the Employer shall notify the Local Union within five (5) business days."

Union Web resources on the Rights of National Guard Members and Reservists.

www.aflcio.org/yourjobeconomy/rights/rightsatwork/reservists.cfm

www.ranknfile-ue.org/stwd_ms.html

This information was gathered by affiliated unions of US Labor Against the War.  Please send additional information, web sites, examples of contract language, or rulings to Mike Parker  mparkeruaw@rts-tech.com

Thanks for contributions from Joe Allen, Gene Bruskin, Thomas DeBruin, Michael Eisenscher, Jean Eilers, Mike Ferner, Andy Griggs, Bill Henning, Peter Knowlton, Nancy Lessin, Todd Hobler, Paul Johnston, Charley Richardson, Margaret Shelleda, Leslie Scanagatta, Jeffrey Smedberg, Richard von Glahn,

For more information about individual membership in or organizational affiliation with U.S. Labor Against the War, contact USLAW: info@uslaboragainstwar.org  or visit the USLAW website at www.uslaboragainstwar.org.

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Copyright Ó U.S. Labor Against the War 2005.  Rev 1.0   3/15/05

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