NCJ Number
58946
Journal
Labor Law Journal Volume: 27 Issue: 8 Dated: (AUGUST 1976) Pages: 490-497
Date Published
1976
Length
8 pages
Annotation
FOCUSING ON THE AFFIRMATIVE ACTION POSITION VIS-A-VIS USE OF THE SENIORITY SYSTEM IN LAYOFFS, THIS ARTICLE NOTES THE PROS AND CONS OF THE DEBATE AND SUGGESTS SEVERAL ALTERNATIVES TO GUTTING THE SENIORITY SYSTEM.
Abstract
THE ECONOMIC RECESSION IN THE MID-1970'S PUT INTO SHARP FOCUS THE CONFLICT BETWEEN SENIORITY PROVISIONS IN LABOR-MANAGEMENT CONTRACTS AND NATIONAL LABOR POLICY CONTAINED IN TITLE VII OF THE 1964 CIVIL RIGHTS ACT. SPECIFICALLY, ORGANIZATIONS REPRESENTING MINORITIES AND WOMEN CLAIM THAT LAYOFFS UNDER LAST-HIRED, FIRST-FIRED SENIORITY PROVISIONS NEGATED GAINS MADE UNDER TITLE VII IN THE LATE 1960'S WHEN EMPLOYMENT WAS EXPANDING. SENIORITY LAYOFF PROVISIONS HAVE COME UNDER ATTACK BECAUSE UNDER CERTAIN CIRCUMSTANCES LAYOFFS REFLECT ORIGINAL DISCRIMINATORY HIRING. IT SHOULD BE NOTED, HOWEVER, THAT THE AFFIRMATIVE ACTION PROVISION DOES NOT ADVOCATE ABOLISHMENT OF THE SENIORITY SYSTEM AS A LAYOFF DETERMINANT. RATHER, AWARDING OF CONSTRUCTIVE SENIORITY IS IMPLIED (I.E., WRONGED GROUPS WOULD BE PLACED IN THEIR RIGHTFUL PLACE IN THE SENIORITY HIERARCHY). THE POSITION OF THE COURTS IN RELATION TO THIS CONSIDERATION IS CLEAR: IN THE TRANSITION PERIOD FROM UNEQUAL TO EQUAL EMPLOYMENT OPPORTUNITY WHERE PREVIOUS HIRING PRACTICES HAVE AFFECTED MINORITIES AND WOMEN, NATIONAL LABOR POLICY EMBODIED IN THE CIVIL RIGHTS ACT, AS AMENDED IN 1972, TAKES PRECEDENCE OVER PRIVATE COLLECTIVE BARGAINING CONTRACTS. AMONG PROPOSALS MADE TO ENABLE IDENTIFIABLE MINORITY AND NONMINORITY GROUPS TO SHARE THE BURDEN ARE ALTERNATIVE LAYOFF SYSTEMS AND WORKSHARING PLANS. WORKSHARING PROPOSALS INCLUDE REDUCED WORKWEEKS AND A CORRESPONDING PAY CUT FOR ALL EMPLOYEES, ELIMINATION OF OVERTIME, AND PAYLESS HOLIDAYS, WHILE ALTERNATIVE LAYOFF SYSTEMS INVOLVE ROTATIONAL OR ALTERNATING LAYOFFS, LAYOFFS BY LOT, AND PLACING EMPLOYEES ON LAYOFF ROSTERS BY RACE AND SEX AND THEN LAYING OFF PERSONS IN PROPORTION TO THEIR PRESENCE ON THE WORK FORCE. CREATIVE COLLECTIVE BARGAINING IS PERHAPS THE KEY: WHERE PAST DISCRIMINATORY HIRING PRACTICES HAVE OCCURRED, THE EMPLOYER AND UNION SHOULD VOLUNTARILY MODIFY THE SENIORITY SYSTEM RATHER THAN HAVE THE GOVERNMENT IMPOSE A SYSTEM. JUDICIAL DECISIONS AND OTHER REFERENCES ARE FOOTNOTED.