UNION STAFF AS OFFICER CANDIDATES

We were surprised by a reaction to a recent FEDSMILL posting noting that union staff or employees can run for national union office. So we thought we would do a quick review of the law and activity in this area by touching on four things to know about this.  First, it is up to the union’s convention body to determine whether to allow paid union staff members, who have never worked in a bargaining unit represented by the union, to be members of the union. AFGE, NAGE and NTEU clearly allow hired staff without any federal employee experience to become members.  NATCA, on the other hand, limits membership only to those who have been Air Traffic Controllers or in another aviation safety occupation represented by the union. Second,

once a union’s paid staff employee becomes a member, the union has to decide whether it can impose different campaign and election restrictions on him/her than it applies to everyone else.  For example, can a union prohibit a current employee/member from running for elected office in the union without violating the Standards of Conduct provisions requiring that all members have “equal rights” and that elections be “fair and democratic.” Excluding someone from voting or holding office is widely seen around the globe as a violation of human rights and was the reason this country passed the Voting Rights Acts of the 60s and 70s. We are unaware of any DOL decisions on this issue regarding staff. One union, NTEU, allows staff to run for the two highest offices in the union, but not any of the other National Executive Board VP positions or local office. NTEU permits staff to pay the dues rate of a retired federal employee or former federal employee, which is one-fifth to one-tenth the dues of an active bargaining unit federal employee.

Third, the law prohibits using funds to sponsor or support a candidate. Title 29 USC 481 (g) states:

No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in any election subject to the provisions of this subchapter. Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election.

This is where a union has its greatest liability when an employee/member runs for elected office. Published DOL advice specifically warns unions about the potential for error when the employee/member is outright campaigning stating, “Current officers and union employees should be cautioned to take vacation time or a leave of absence if they are going to campaign during work hours, especially on election day.” But as you can see the statutory restriction is not limited to campaigning.  Law prohibits the use of union monies “applied to promote the candidacy of any person in any election” which raises the question of what constitutes promotion. The Merriam-Webster folks promoting as “the act of furthering the growth or development of something.” The thesaurus people suggest that a concept as broad as “help” is a synonym. Consequently, a legitimate question exists about whether continuing to pay an employee who has direct contact with union voters once s/her declares for office constitutes “promotion”, e.g., reimbursing travel expenses of an employee/member candidate during a campaign period even to conduct union business, or giving them access to information about voter interests through their assigned duties that other candidates may not get, etc..

Fourth, there are a couple of ways to respond to this potential liability. AFGE (and others) seems to have instituted the greatest protections by including the following words in its Constitution:

SEC. 5. A paid employee, as distinguished from an elected officer of AFGE, may be a candidate for any elective office with AFGE, provided he or she is on leave of absence without pay. Upon request, employees will be granted leave without pay for the purpose of seeking elected office. Employees will be granted leave without pay upon announcement of their candidacy. Any announcement as to candidacy shall be made at least 30 calendar days prior to the election, and when candidacy is announced, the employee will be put in a leave without pay status.

Its cautious approach to employee/member candidacies is understandable. If an employee/member runs for office and the DOL finds that the union somehow funded something that constituted promotion of that candidate, especially if it was not equally available to all other candidates, it could void the election, forcing a rerun and even require the candidate to reimburse the union for the funds used whether they were salary, travel reimbursements or other funds. Moreover, the union would suffer some bad publicity about its “fair and democratic” ways that could be used against it in future organizing campaigns.  At a minimum, the union will incur expenses defending its action before DOL and/or courts if even one member challenges the election result.

Another restriction unions can adopt to reduce their liability is to limit the campaign period to a short period before the election so that it can better insulate the employee/member candidate from the expenditure of funds that potentially promote his/her candidacy. Obviously, that also helps the employee/member candidate by limiting the period of time he/she must be off salary or using leave. Another protective limitation would be to relieve the employee/member of his/her duties that place them in direct contact with voters, e.g., providing them services, supporting some local goals, or simply providing exposure to his/her union expertise, philosophies, positions, etc..

The only truly authorized use of unions funds are listed in the law as “Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election.’  Anything between that and an act that qualifies as “promoting” a candidate is a gamble begging for a DOL challenge.

This is another one of those postings where we want to remind readers that we are not providing legal advice nor speaking as attorneys. If you have questions about an actual event in your union, find a competent attorney or call the DOL. Moreover, it is not our intent to suggest an opinion, for or against, the law, how a particular union does or does not protect itself from liability, or even employee/members running for elected union office at all. Just as currently federal employees running a local or council possess some unique qualifications for national office, so do union staffers have their own unique attributes that voters could find attractive.  Frankly, there is just as much liability if the union uses funds to promote the candidacy of someone not on staff.  Nor should any of our comments be applied to current elected union officers who have a fiduciary obligation to continue to perform normal duties of their office during a campaign period, irrespective of whether they might get closer to “promoting” their election or reelection. The duties of virtually every staff member can be done by someone else during a campaign period; that is not the case of an elected national officer. Again, check with DOL or an attorney about that. This was solely about union staff.