FIVE UNION RIGHTS YOU MAY NOT REMEMBER
We all know that union activists cannot be fired, denied a benefit, or even poorly evaluated if the decision is based on or even related to our choice to be union activist. But over the years FLRA has certified that union leaders have a few others rights that you might have forgotten about. So, FEDSMILL.com thought you a reminder of them would help along with excerpts from the precedential FLRA case.
1—The Right to Avoid Having to Meet Extra Criteria or Undertake Extra Steps to Enjoy a Benefit
Management cannot make a union activist jump more hurdles to exercise a right or to enjoy a benefit. In the case below, it made the union representative get permission from a manager to apply for a job in that manager’s unit. No one else had to do that.
As I have found, Ms. Swearingen [a union activist], following her meeting with Mr. Tullos at which he had shown her a list of vacancies and told her to let him know if there were any positions listed to which she would like to be reassigned, advised her immediate supervisor, Mr. Welch, that she was interested in a GS-6 Lead Scheduling Clerk position in DPT. Mr. Welch did contact Mr. Tullos who told him Ms. Swearingen would have to contact the supervisor to see if they would take her in DPT. Ms. Swearingen refused to contact the DPT supervisor for the reasons, as she told Mr. Welch, that such requirement was unfair; that she should not have to get permission for assignment to a job; and that it was Respondent’s obligation to determine qualifications. Mr. Tullos readily admitted that he made the statement but asserted that it was his policy to let the division chiefs make the decision as to whether they wanted a particular employee. While the record tends to support his assertion as to reassignments to managerial, or supervisory, positions, there is no support in the record that any employee, except Ms. Swearingen, was told to contact any “gaining” supervisor for RIF placement whether within or without the division in which they were employed prior to the RIF. Thus, Ms. Barbara King, Ms. Iris Koveleski and Ms. Carole Schumaker were automatically reassigned to bargaining unit jobs. Moreover, at an EEO meeting on May 24, 1991, Mr. Tullos stated that Ms. Swearingen had, “caused hell in the office” by filing numerous EEO complaints, and his keen awareness of her active participation in Union representational activity motivated his insistence that Ms. Swearingen, but not any other unit employees, must be acceptable to the “gaining” supervisor, i.e., he did not want to foist a Union activist on another supervisor. Because Respondent discriminated against Ms. Swearingen, who was actively engaged in protected activity, by imposing on her a condition to reassignment in a RIF which was not shown to have been required of any other bargaining unit employee and I find that her engagement in protected activity was a motivating factor in Respondent’s treatment of her in connection with hiring, tenure, promotion, or other conditions of employment, Respondent violated section 7116(a)(1) and (2) of the Statute. . . .As noted, the record shows that all other bargaining unit employees reassigned as a result of RIF action were automatically reassigned, so that Respondent’s asserted justification was wholly lacking in merit. AFGE, 46 FLRA 535
2—The Right to Transmit Confidential Employee Medical Information
When a supervisor refused to accept employee medical information from the employee’s union representative, FLRA called that a ULP.
There is no dispute that the supervisor prevented the Union representative from delivering medical documentation on behalf of the affected employee. Consistent with the foregoing discussion, the Union representative was exercising rights protected by the Statute when undertaking this activity. In this regard, § 7116(a)(1) of the Statute provides that it shall be an unfair labor practice for an agency to interfere with, restrain, or coerce any employee in the exercise of any right provided by the Statute. . . .Section 7102 of the Statute sets forth certain employee rights including the right to form, join, or assist any labor organization freely and without fear of penalty or reprisal and that each employee shall be protected in the exercise of such right. . . .Such right includes the right to act for a labor organization in the capacity of a representative. . . .Thus, by preventing the Union representative from delivering the medical documentation, the supervisor “interefere[d]” with the Union representative’s right, within the meaning of § 7116(a)(1) of the Statute, and the award finding a violation of § 7116(a)(1) is not contrary to law. We, therefore, deny the Agency’s exception as to this portion of the award. AFGE, 62 FLRA 153
3—The Right to Solicit Membership In Work Areas
Union representatives can go into work areas to solicit new members so long as they are talking to employees who are currently in a nonwork status, e.g., on a break. So, don’t let some manager tell you that you cannot talk to employees on their break just because they are taking their break in a work area—even if others are working nearby. This right would also apply to time a manager is not using during a formal meeting, e.g., if the manager must leave the group for a few minutes.
In so holding, the Authority stated that where “employees, at the discretion of management, have been assigned periods of time during which the performance of job functions is not required (i.e., paid free time),…such time falls within the meaning of the term ‘nonduty status’ as used in [§] 7131(b)[,]” and “solicitation of membership during such time is permissible.” Id. Thus, employees may be in a nonduty status, and may be solicited, despite the fact that they are being paid during the period at issue….an employee’s protected right to solicit union membership while in a nonduty status may be exercised in a work area where the employees being solicited also are in a nonduty status, absent any disruption of the activity’s operations or any other unusual circumstances (Id. at 412). . . .Since the Act does not define “nonduty time” and does not amend the Statute, the circumstances of this case fall within the scope of Tinker and its progeny. Simply stated, the fact that employees are in a pay status does not, in itself, mean that they are in a duty status so as to prohibit solicitation by a labor organization. AFGE, 61 FLRA 562
Census contends that because employees in nonwork status are in the same area as employees in work status, to permit solicitation would disrupt Census’ operations. This contention is rejected. The record establishes that during nonwork time employees may visit each other in their work areas and discuss a variety of nonwork-related matters and that there are no limitations concerning such employee contact. Further, there was no evidence introduced to establish that prior union solicitation between employees in the work area during nonwork time had resulted in any interference with any working employees’ performance of their duties. In fact, Hanlon stated in his request that he would be very careful not to interfere with employees who were working. In light of the foregoing, I conclude that Census did maintain a rule that prevented employees from engaging in union solicitation in work areas during nonwork times and that such rule constituted a violation of section 7116(a)(1) of the Statute. AFGE, 26 FLRA 311
4—The Right to Run Union Fundraisers at the Office
Raising money to support union activities is behavior that is protected by the Statute.
We find that the Union’s fundraising activity in this case is protected activity within the meaning of section 7102 of the Statute. As we noted previously, the Arbitrator found that the Union engaged in fundraising activities as a means of soliciting the assistance and membership of unit employees. Moreover, the record indicates that the Union’s fundraising activities were conducted during non-work time at the entrance to the cafeteria, a non-work area. Therefore, we find that employees who participated in the Union’s fundraising activities were exercising their right under section 7102 to solicit on behalf of the Union and we reject the Agency’s argument that the matter at issue in this case is not protected by section 7102 of the Statute. NTEU, 42 FLRA 1034. See also AFGE, 41 FLRA 85
5—The Right to Avoid Being Made the Scapegoat
Although it may be tempting for management to blame the union for unpopular decisions, it cannot tell employees the union is to blame unless the union had direct and majority control over the decision. In the case below, even though the union was the first to tell management about an inconsistent treatment of employees, it was management that made the decision to treat everyone alike, and to no one’s surprise it chose to adopt the less employee friendly solution. When a manager tried to blame the union for bringing the problem up, it was a ULP.
In agreement with the Judge, the Authority finds that the statements made by the Respondent’s Montreal Branch Chief to employees concerning the purported reason for the removal of stools used by customs inspectors in Montreal, i.e., because of the filing of a grievance by an employee in the Boston District who had been denied the use of a stool, tended to coerce and restrain employees in the exercise of rights guaranteed by the Statute in violation of section 7116(a)(1). In reaching such a conclusion, the Authority finds that the Montreal Branch Chief was acting as an agent of the Respondent, at which level there exists the unit of exclusive recognition involved herein, and that therefore the Branch Chief’s conduct was binding upon the Respondent. . . .Rather, as found by the Judge, although the Respondent first learned of the apparent inconsistency in policy regarding the use of stools by customs inspectors during the grievance proceeding, it took action to remove stools in Montreal which was motivated solely by the Respondent’s desire for a uniform practice within the region. Under these circumstances, the Authority finds that the Respondent’s action in removing the stools did not itself constitute a violation of sections 7116(a)(1) and (2) of the Statute. NTEU, 15 FLRA 309. (See also a very strong statement from FLRA Chairman Pope supporting this concept in AFGE, 62 FLRA 199)
(This is a reporting of an article that first appeared in late 2011.)