TEN WAYS TO REVERSE A UNION PRESIDENT’S DECISIONS
When union presidents abuse (or simply misuse) power, members have a few options available to bring the union’s CEO back to the reality that they are presidents, not potentates nor pontiffs. Given that union leaders publicize these options about as often as Haley’s Comet comes whizzing by planet earth, we thought it might help to list them starting with the least assertive and moving to the very formal, this-is-war options.
Option #1– Talk to them. It is fast, informal, and the least likely way for a message to be misinterpreted by a defensive person. Moreover, the president might share some information that s/he would never put in writing or describe in public. Perhaps most important of all, the president may not even be aware of your perspective even though you think s/he is totally to blame for your problem. Union presidents can be as insulated by staff as much as the president of any other organization. Using this option gives them a chance to very quickly make things right.
Option #2– Write them. If the president is an intimidating figure or likely to lash out in a conversation, then a letter might be the best option, especially if the issue is complicated and needs a detailed explanation. If they are hiding or defending something, expect a vague response that answers nothing.
Option #3– Petition them. Many union Constitutions permit members to request in writing formal interpretations of the Constitution, bylaws, contracts, and even other documents. The advantage of a formal request is that it requires the union president to get on the record, giving the sender an opportunity to share with others the president’s position. It also often opens the door for filing an appeal of the president’s formal interpretation with the union’s executive board and after that the convention. Formal charges might even be possible if the president’s interpretation conflicts with the clear and unambiguous language of the document.
Option #4– Break their monopoly on information. Union CEOs at the national and local level largely control what information gets to the members and how it is slanted. They publish the union newspaper, they post material on union web sites, they draft any letters sent out to members etc. However, in an age of Twitter, Facebook, Instagram, e-mails, blogs and anonymous electronic bulletin boards, any unit employee can publicly rebut the CEO’s perspective and put him/her on the defensive in minutes. Be careful not to get carried away and slander or libel the union president under the law; stick to the facts, avoid name-calling, etc. Also remember that simply using these media for a war of words misses the point. Develop a plan to motivate others to act on something, e.g., share information about concrete problems the president’s current position creates for them, join a letter or e-mail writing campaign to the president, etc.
Option #5– Charge them internally. File formal internal charges against them. If the president is dodging a member’s issue and hoping to keep certain facts under wraps, all union Constitutions have procedures for filing charges against the president. They typically can be charged with violating a provision of the Constitution & Bylaws, convention or executive board resolutions, law, federal regulation or collective contract provisions. Charges can trigger a formal investigation and even hearing before the board. If the person charging the union president does not like the outcome, s/he can often ask the union convention body to review the hearing decision and after that ask the Dept. of Labor to examine the evidence. Check out how the Dept. of Labor has intervened in union affairs to bring civil and criminal charges against union leaders. Although formal charges can lead to reprimands, cease and desist orders, and even orders to reimburse the union if the CEO operated outside his/her authority, they more often will generate a settlement between the charged president and the charging party.
Option #6– Defund them. Nothing projects power like the bottom line of a bank statement, and if disgruntled member(s) cannot get action one way, another is to encourage current members to terminate dues withholdings (and/or political action fund contributions) until they get the changes they want. Given that many federal sector contracts only permit members to terminate dues withholding once a year, disgruntled members can collect dues termination forms at any time and use them as bargaining chips right up to the day they must be submitted to management. A closely related tactic is to terminate dues withholding from regular paychecks and switch to the payment of dues quarterly by personal check. Not only does that make it much tougher to project union income and more costly to collect, but it also permits the disgruntled employee to remain a union member and use any internal processes within the union to push back.
Option #7– Charge them externally before FLRA. Several federal agencies can step in to review and reverse a union president’s actions. The Federal Labor Relations Authority has the power to enforce employee rights under the labor-management statute. For example, if a member, or even a non-member for that matter—including retirees, believed that the union leader did not fairly represent his/her interests in a grievance or arbitration, that person can file an unfair labor practice charge with the General Counsel of the FLRA charging the union with violating section 5 USC 7116(b)(1) and (8) of the law. The FLRA would investigate the charge and if it thought there were reasonable grounds to conclude the union leader did not “fairly represent” unit employees, it would take the union president before a judge for a formal hearing and a decision enforceable by the courts—without any cost to the employee that filed the charges. The “duty of fair representation” has been spelled out repeatedly by the FLRA, e.g.,
Under the duty of fair representation, unions are required to “serve the interests of all members [of a bargaining unit] without hostility or discrimination toward any, to exercise discretion with complete good faith and honesty, and to avoid arbitrary conduct.” NATCA, MEBA/AFL-CIO, 55 FLRA at 604 (quoting O’Neill, 499 U.S. at 76…. “[W]hen a union uses a power which it alone can wield, it must do so for the benefit of all employees within its bargaining unit.” …. In other words, in its role as exclusive representative, the “union assumes a heavy responsibility to exercise its [power] on behalf of rather than against … employee[s]” it represents…. The Authority has recognized that when “personal animosity” causes a union to “deliberately and unjustifiably treat [ ]” some bargaining-unit members “differently from other unit employees,” that animosity evidences bad faith that violates the duty of fair representation. (See National Air Traffic Controllers Association, AFL-CIO, et al. and Federal Aviation Administration, Washington, D.C., et al., 66 FLRA 467 (2012).
The Authority can even order the union to terminate agreements it has already signed with management and to pay the employees harmed out of union fund if the is not required to fully compensate them. (See Department of the Air Force, Loring Air Force Base, Limestone, ME and AFGE, Local 2943 and AFGE and Otis J. Clair, Jr., 43 FLRA 1087 (1992))
Option #8– Charge them externally before FLRA and/or EEOC. One of the most important but rarely used provisions of the labor law is that a union leader cannot “discriminate against an employee with regard to the terms or conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or non-preferential civil service status, political affiliation, marital status, or handicapping condition.” (See 5 USC 7116(b)(4)) Consequently, if three unit employees filed identical grievances and the union settled them at arbitration with an agreement that only one of the three would get back pay, the two denied any remedy can file charges with FLRA and EEOC alleging this this anti-discrimination provision of law was violated. They would need to show that the only relevant difference between them and the employee who got back pay is race, age, gender, current dues paying status, etc. Union leaders can be just as guilty as company CEOs of disparately treating one or more employees in violation of their civil rights. These are not easy cases to win, but neither are they impossible. (Decades ago there was a case where the agency forced employees to use several days of annual leave rather than approve administrative leave as the contract required. Just before the arbitration hearing two years later, the agency offered to reinstate the annual leave credit for those grievants still employed with the agency—if the union rep would agree that anyone who has retired or left the agency would get nothing. The union rejected the offer pointing out it would probably be age discrimination to refuse to reimburse retirees annual leave they were unjustly forced to use when younger employees were going to get the leave reimbursed. Even the agency saw the problem and relented.)
EEOC has the power to step in and change things without FLRA if the president’s unwelcomed actions or decisions relate to employment with the union or if the union controls how certain job-site personnel actions are taken. For example, some contracts might give the union president the right to determine who from the bargaining unit gets appointed to joint labor-management committees which have a significant impact one one’s ability to get promoted in the agency or give the union president the power to decide who among equally qualified employees get an overtime assignment, office or reassignment. EEOC can enforce the civil rights laws against union decisions impacting federal employees just as easily as they can against agencies, including the right to order the offending president be disciplined and pay compensatory damages to the harmed unit member(s) of up to $300,000.00 Option #9– Replace them. Throw the bum out of office. That is what elections are about, although this can be incredibly difficult to do, e.g., you have to find a challenger who can raise enough money and votes to win an election. This option can also take years to trigger if the next election cycle is far in the future. But at times, the sitting president will make concessions just to avoid an election fight that might rveal embarrassing information.
Option #10– Decertify their union. The Authority can process a decertification or other election petition that potentially could get the president’s union thrown out as the exclusive representative or replaced by another union. While a disgruntled employee would need an experienced hand to guide him/her through this, often the leaders of another union interested in replacing the incumbent or the regional FLRA office can provide all the advice and paperwork someone needs. Under the law, if 30% of all current bargaining unit members want an election to throw the union out or replace it with another one and they sign a petitioning stating that, FLRA will run an election. Generally, the mere fact that some disgruntled members are circulating a petition or working with another union to see if there is enough interest to get an election is more than enough to get change out of a union’s hierarchy.
PostScript: This is not the last you will hear from us on this topic. Keeping those in power honest and responsive is the primary obligation of any voters. We detest the abuse of power by union leaders just as much as we do when it comes from agency leaders. We have been around unions a long time and seen some very ugly behavior by those at the top who have huge egos. While unions represent only a small minority of employees today thanks to hostile employers and marginally adequate laws, abusive and intellectually inadequate union CEOs are also to blame for that decline in union clout. We hope to follow up this piece soon with even more explicit posts about how to correct union CEO missteps—even when they are unintentional or based on inadequate staff information.