Two provisions that often get confused in collective bargaining agreements (CBAs) are Union Security and Preference of Employment. Although both can affect an employee's ability to work under a union agreement, they address different issues and operate at different points in the employment process.
Understanding the distinction is particularly important for employers and employees working under AICP-negotiated CBAs. For a refresher on “Preference of Employment” and “First Consideration for Employment” provisions in AICP CBAs, click here.
Union Security: What Happens After You Get Hired?
Union Security provisions address an employee's obligation to become and remain a member of the union after being employed under the collective bargaining agreement.
Union security provisions, however, are subject to applicable state law, which can limit or prohibit their enforcement. In states with “right-to-work” laws, for example, an employee generally cannot be required, as a condition of employment, to become a union member or pay union dues or fees. Click here for more information on “right-to-work” laws.
Accordingly, the fact that a CBA contains a union-security provision does not, by itself, mean that the provision is enforceable in every jurisdiction. Employers should consider the law applicable to the employee's place of employment when determining what obligations can lawfully be enforced.
IMPORTANT: A right-to-work law does not relieve a signatory employer of its contractual obligations under the CBA. A signatory employer remains obligated to comply with the CBA's applicable hiring (including “preference of employment” or “first consideration for employment” provisions), wage, benefit, staffing, and other requirements regardless of whether individual employees are required to become union members.
Union Security, therefore, is about membership in the union as a condition of continued employment (where legally permissible). It does not necessarily determine who gets hired in the first place.
Preference of Employment: Who Gets Hired?
Preference of Employment provisions address who an employer should hire when filling covered positions.
This is a hiring provision, not a membership provision.
Under Article X of the IATSE Commercial Production Agreement (CPA), for example, covered positions are generally filled from the applicable Industry Experience Roster (IER) or Television Commercial Roster (TCR), subject to the Agreement's exceptions. In the DGA National Commercial Agreement (NCA), Assistant Directors and Unit Production Managers must be hired from the Commercial Qualifications List (CQL).
IMPORTANT: The CPA Article X roster exemption for agency- or client-designated employees is limited by the CPA union security provision: once an individual has worked 30 days under the CPA, the individual becomes a union "must-join" and may not continue to be employed under the Agreement – including through the agency/client-designated hire exception.
The important distinction is that an employee may be eligible to be hired based on the applicable employment roster even if that individual is not yet a union member.
A Common Misunderstanding
It is sometimes assumed that only current union members can be hired under a union contract. That is not necessarily the case. Conversely, being a union member does not necessarily mean that an individual automatically has a right to employment.
It is also sometimes assumed that only current union members are listed on the IER, TCR, or CQL. That is also not necessarily the case.
Where a CBA establishes an employment roster or other hiring preference system that does not itself require union membership, an individual can potentially be hired without already being a union member. The employee's obligation to satisfy the Agreement's Union Security provision is a separate issue that may or may not arise during the term of their employment.
For example: An individual is on the applicable IATSE roster but is not yet an IATSE member. That person is eligible for employment under the Agreement's Preference of Employment provision. If hired, however, the Union Security provision requires that person to become a union member after the applicable 30-workday period. If someone is on the roster and has reached their must-join status, but has not joined, then they are not eligible for hire, even though they are on the roster.
The Bottom Line
When reviewing a CBA, look at these provisions separately:
Union Security = Union Membership
Does the employee have to join the union?
When does that obligation arise?
What happens if the employee does not comply?
Are there state-law limitations?
Preference of Employment = Hiring
Who receives preference for available work?
Is there a roster or referral system?
Are there exceptions for employer-designated hires?
What qualifications must an individual have to be hired?
Understanding that distinction helps employers apply the CBA correctly and avoid potential issues with the unions.
Necessary Disclaimer: The information provided here is a general overview for educational purposes and should not be considered fully comprehensive or exhaustive of the subject matter covered. For guidance on specific situations or other contract-related questions, please contact David Michael González, VP, Labor Relations, davidg@aicp.com, and Ralph Loyola, Labor Relations Manager, ralphl@aicp.com.