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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5567
Experience:  Exclusively practice labor and employment law.
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My employer & union trustee have agreed to take funds previously

Customer Question

My employer & union trustee have agreed to take funds previously negotiated in our current collective bargaining agreement for a pension plan & put it in the unions' 401K instead.
Both parties have agreed to make participation 100% mandatory for both union & non-union employees.
The money is set to be taken against our will and we get no say or vote in the matter.
Is this legal? What law or laws govern your answer?
Submitted: 2 years ago.
Category: Employment Law
Expert:  John replied 2 years ago.
Hi, thanks for submitting your question today. My name is John. I have over 13 years of legal and consulting experience in this area. I’m happy to assist you with your question today
It is legal because the union essentially acts as your agent. In other words, when the union negotiates something - e.g., wage, benefits, pension - it's as if you agreed to the same negotiation. There is no exception to this in benefits law; nothing that would allow you to override the union's status as exclusive agent in control of mandatory subjects of bargaining. So when the union agreed that a percentage of your wage would go to the 401k pension, it's as if you had agreed to the same. Normally, absent a union, the employee cannot have anything except taxes taken from his wage without consent.
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Expert:  John replied 2 years ago.
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Customer: replied 2 years ago.
Are you sure. Section 40.1-29 of the Code of Virginia prohibits an employer from withholding any part of wages .. except for payroll, wage or withholding taxes without the written & signed authorization of the employee. How does benefits law supersede state law?
Expert:  John replied 2 years ago.
First, National Labor Relations Act (NLRA) law is federal and trumps state law. Under that law a union acts as exclusive agent for its employees. Second, when your union does things like negotiates your pay, benefits, and employees' contributions to benefits its as if you made that election yourself. I am absolutely clear of that. Your recourse is through petitioning your union leadership if you disagree with the deal they negotiated for you.
Customer: replied 2 years ago.
So if union & management agreed that employees could park in handicapped spaces on job site that would be alright?
Expert:  John replied 2 years ago.
No, local criminal or civil laws are not preempted by the NLRA when the two laws do not cover the same subject matter. Essentially handicapped spaces are not a term and condition of employment. I understand your trepidation in believing me, someone you never met or know, here is a long line of cases of cases beginning with a case called Garmon, in which the Supreme Court of the United States found that NLRA law controls these matters. It's known as Garmon preemption - you can find articles on it openly on the internet here: