ETHICS TEST: DID THIS UNION SELL OUT ITS MEMBERS? (ANSWER)
Last week we posed a hypothetical fact pattern involving a union’s decision to trade five grievance/ULP charges, that potentially could have given unit employees millions in back pay, in return for a few hundred hours of official time for a union officer. One reader called it a “Jack-in-the-Beanstalk” swap but without the sleepy giant’s gold or even fertile beans. While we asked for thoughts on whether the union’s actions were ethical, let’s first look at the narrower questions of whether they were at least legal.
THE LAW– The odds are against anyone successfully pressing a ULP claim against ISUE (or any the union) for a lopsided trade. But, it is not impossible. The standard for determining whether an exclusive representative has breached its duty of fair representation under section 7114(a)(1) is whether the union “deliberately and unjustifiably treated one or more bargaining unit employees differently from other employees in the unit. That is, the union’s actions must amount to more than mere negligence or ineptitude, the union must have acted arbitrarily or in bad faith, and the action must have resulted in disparate or discriminatory treatment of a bargaining unit employee.” NATCA, 66 FLRA 467 (2012) The structure of the last sentence suggests that a union must not only be negligent but also treat two or more employees differently to be found to have violated the law. However, the Authority has not always required proof of disparate treatment.
For example, in IAM, 24 FLRA 352, (1986) the Authority found that a union misled an employee into thinking it was going to file a grievance. It repeatedly reassured the employee that it would take care of the matter, but ignored numerous attempts by the employee to have the union actually file a grievance. The Authority found that the union’s conduct amounted to more than mere negligence because, “the union deliberately and unjustifiably failed to file a grievance on behalf of the employee.” It made the point that when a union is unable to explain why it did what it did that “creates an inference of intentional misconduct.” “Misconduct” is never mentioned in the labor law, but FLRA will punish it. In the IAM case, it ordered the union to pay the harmed employee back pay for the period of his suspension if management would not agree to arbitrate the grievance it never filed.
(Just a couple of years before the IAM case the Supreme Court ordered a union to pay a portion of the back pay owed a Postal employee because the union’s national office dropped an employee’s termination appeal for no apparent reason. The courts found the union acted, “…in an arbitrary and perfunctory manner” demonstrating “reckless and callous disregard” of the employee’s rights. (Bowen v. USPS, 103 S. Ct 588 (1983)
In 2005 the FLRA found a union guilty of violating the law by “acting in an irrational, arbitrary, and unreasonable manner” when it failed to advise grievants of what it was doing and why. AFGE, 61 FLRA 426 (2005)
We admit the odds are against anyone being able to prove a union’s decision-making was illegal. But the reality is that case law is littered with subjective criteria (underlined above) that any arbitrator, ALJ, FLRA or court could cite to decide that a particular union decision, which they personally find distasteful, violated law, e.g., irrational, perfunctory, reckless, callous, misconduct, unreasonable, arbitrary, unjustifiable or inept. Union leaders’ decisions are vulnerable to attack by disgruntled members or nonmembers, even if unrelated to whether a grievant is a union member.
For example, is it so hard to believe that FLRA would consider it irrational, arbitrary, reckless, unjustifiable or even callous for ISUE to have traded away the potential for millions in back pay spread across almost every unit employee merely to get a few hundred hours of official time for one person—who never even filed a grievance claiming he was entitled to the time?
Or it beyond imaginable that FLRA would punish the union for dropping grievances pending at arbitration without even completing its investigation to see how strong the evidence was? The words perfunctory and reckless come quickly to our minds.
Nor should anyone bet against the Authority focusing on the fact that most of the arbitration and ULP cases the union dropped involved alleged violations of the Civil Rights Act, a major piece of social legislation, not a mere contract entitlement. Can a union initially lead employees to think it is going to pursue potential discrimination claims and then drop them without a complete investigation or even telling the impacted employees in advance that their civil rights are being trade for a few hours of official union time?
But given that we are only dealing with a hypothetical set of facts, we will never know what FLRA and the courts would have done with these specific facts. So, let’s move to the more difficult question to answer, namely, was the union’s decision ethical?
ETHICAL CONSIDERATIONS– Four things suggest it was not. First, the union traded the interests of the employees in order to satisfy the interests of a union leader. It had a conflict of interest with its own members and it took care of only the interests of the people who controlled the settlement decision. Moreover, it did that without telling the employees in advance or asking their opinion. That is like two neighboring home owners agreeing to jointly sell their property to a developer, agreeing that one of the two to take the lead in the negotiations, and that neighbor with all the authority getting a far above average price for his property while tossing in his neighbor’s for free. (Ironically, by not informing members that it was abandoning their money grievances for more union official time the union expanded the amount of time those employees will have to file a ULP charge against the union.)
Second, by tossing aside the interests of a particular civil rights protected group, namely, African-Americans, it created the potential for the union to split along racial lines. Is any deal ever worth that? (See the accompanying post, “When Emeralds Fight Vulcans Unions Lose.”)
Third, the union not only traded specific grievance/ULP claims, but may have given away its credibility with management. The law gives unions the right to enforce violations of law, regulation, or contract. The mere potential that a union could drag managers on to witness stands, force the disclosure of closely-held documents, and impose significant monetary and other remedies generally enables the union to get settlements without having to take a case all the way. However, in our hypothetical ISUE, in which the union relieved the agency of millions in potential liabilities for a few hundred hours of official time, it would be fair to project that the agency will expect similar bargain deals in the future. That would undercut the chance of getting reasonable settlement offers early.
Fourth, by making a deal that FLRA could potentially overturn the ISUE leadership has made the union liable for millions in back pay. Like the cases above, FLRA or the courts could order the union to use existing and future member dues to compensate employees for the agency violations of law that the union illegally failed to pursue. Shouldn’t a union at least let members know it is taking such a non-frivolous risk with members’ money before it does so—even if it does not put the decision to a vote?
Although scholars have quibbled throughout the ages about how to decide whether something is ethical, we offer a simple test to consider. If you were the employees whose grievance/ULP claims were being swapped, would you want to be treated this way by ISUE? Unions are supposed to protect members from unfairness, not practice it on them.
(As we have said so often FEDSMILL does not provide legal advice. If you are involved with a situation will legal implications, contact a competent attorney to you at your particular facts. Moreover, any similarity between this post and people or events you may be aware of are purely coincidental)