ARBITRATION DISPUTES INSIDE UNIONS
How do unions handle dispute when local reps want to take a case to arbitration and the regional or national reps do not? Well, it turns out there are a variety of ways ranging from the very democratic to the other end of the spectrum. Here are some examples we found around the federal sector.
NATCA has devoted an entire section of its National Constitution and Bylaws to resolving those conflicts which can pit the interests of a Regional Vice President requesting arbitration against the union’s national office. NATCA has the most explicit dispute resolution process of any union we could find for disagreements about arbitrating a case. Here is the process in its entirety.
Section L “Labor Relations”
SRL-1 (Arbitration Policy)
Grievances requested for arbitration will be reviewed by the NATCA Labor Relations Strategy Group. The Labor Relations Strategy Group’s review of grievances will include all documentation received through the respective region, as well as the analysis prepared by the National Labor Relations Staff. The Labor Relations Strategy Group will make recommendations for or against arbitration and may also recommend other strategies for resolving the grievance. The Labor Relations Strategy Group will recommend arbitration advocate(s) to present the grievance in arbitration hearing.
NATCA’s Director of Labor Relations will present the Labor Relations Strategy Group’s grievance recommendations to the NATCA President for final determination. The final determination will take into consideration factors such as the chances for success based on the merits of the case and the risk or desirability of a precedent-setting decision having an effect on NATCA membership nationwide.
If it is determined that a grievance will not proceed to arbitration, the Director of Labor Relations will communicate this decision to the Regional Vice President and the Labor Relations Strategy Group.
If the request for arbitration is denied, the Regional Vice President may appeal such decision to the National Executive Board. The decision may be overturned by a three-quarters (3/4) vote of the National Executive Board. If the Regional Vice President decides to invoke an appeal to the National Executive Board, arbitration will be requested to protect timelines and the vote taken at the earliest possible time. The Regional Vice President is responsible for communicating the final decision to the grievant and to the Facility Representative where the initial grievance arose.
NAGE also provides a process in its Constitution & Bylaws for appealing decisions not to pursue grievances. Generally, the decision to arbitrate is made by a local or other level below the national office.
ARTICLE IVA – THE HANDLING OF GRIEVANCES
Any person employed in a bargaining unit represented by a Local Unit of the National Association of Government Employees (hereinafter the “Grievant”) shall have the following rights and shall employ the following remedies under the provisions of these Constitution and By-Laws if s/he believes that the Grievant’s Local Grievance Committee has acted improperly in handling the member’s grievance under the Collective Bargaining Agreement.
The Grievant, upon receiving written notification from the Local Unit Grievance Committee that the Committee has determined either to (1) reject his grievance; (2) settle the grievance; or (3) decline to further process the grievance shall take the following action to protect his or her rights:
Step One – The Grievant shall, within seventy-two (72) hours of notification of the Local Unit Grievance Committee’s action complained of, notify at least one member of the Local Unit Grievance Committee, in writing, that the Grievant appeals the Committee’s decision to the National President. The Local Unit shall immediately take the required action to protect the Grievant’s rights under the Collective Bargaining Agreement by proceeding to the next step of the Grievance Procedure.
Step Two – The Grievant must notify the NAGE Office of General Counsel, in writing, within five (5) calendar days following the decision of the Local Unit Grievance Committee, that s/he appeals the Local Unit Committee’s decision.
(a) Such appeal shall set forth a complete narrative as to the facts in support of the grievance, a copy of the Collective Bargaining Agreement, the decision of the Local Unit Grievance Committee and whatever documents are reasonably necessary for an understanding of the case.
(b) The Appeal will be decided by a National Officer duly designated to act by the National President.
(c) The duly designated National Officer shall schedule and conduct a hearing if necessary on the Grievant’s Appeal as soon as is administratively possible.
(d) The duly designated National Officer, at his or her sole discretion, may (1) render a decision conducting whatever investigation s/he deems necessary (2) decide the matter on the record created by the Local Unit or (3) refer the matter for decision to the National Executive Committee.
(e) The duly designated National Officer may, at any time, (1) order the Local Unit Grievance Committee to take all steps necessary to protect the Grievant’s rights under the Grievance Procedure pending the decision of the National Officer under (d) above, or (2) if the final decision is in favor of the Grievant, such National Officer shall order the Local Unit to take whatever actions s/he deems necessary under the Collective Bargaining Agreement. Arbitration of termination cases so decided by the National Officer or National Executive Committee will be paid for by the National Union.
NTEU’s Constitution & Bylaws (2011 edition; 2013 not posted on web) does not contain an explicit procedure for challenging its National President’s decisions not to arbitrate a case. (The NTEU National President, not local or unit officers, makes all decisions over whether to take a case from any unit to arbitration.) However, the NTEU rules contain a broad right for members and local chapters to appeal any National President decision to the National Executive Board and then the convention if necessary.
Article XI- National President
Section 4. The National President shall decide disputes or questions in controversy, including all questions involving interpretation of this Constitution, all of his/her decisions being subject to appeal, first to the National Executive Board, then to the National Convention. Notice in writing of appeal of any decision of the National President must be received by the National Headquarters Office within thirty (30) days from the date of decision.
Section 5. Subject to the approval of the National Executive Board at its next meeting, the National President may expend NTEU resources and provide legal, technical, or professional assistance to establish and to run an organization whose primary purpose is to pro- vide representational services to Federal employees who are excluded from coverage under Chapter 71 of Title V of the U.S. Code.
While the Board can presumably overturn the National President on a simple majority vote, the dispute will be moot without an agreement to invoke the case to arbitration pending an appeal or even early notice that the case has been rejected for arbitration.
The NLRBU, like NTEU, does not have an explicit appeal process protecting invocation deadlines in the case of a dispute, but like NATCA the decision to arbitrate gets group review, not just that of the National President. Its process begins with a national Grievance Committee and ends with decision by the National Executive Committee, which “shall have full and final authority to devise and to implement any new policy or make any decision which in its judgment is required by the best interests of the Union and membership at large.”
Article VII Officers
Section 6. The Grievance Committee Chairperson shall chair the Grievance Committee, which shall consist of the Executive Committee, with applicable District Vice Presidents as ex‑official member(s). In each case in which it is involved, the Grievance Committee shall maintain regular communications with the applicable Local Union representative(s) and individual grievant(s) concerning all phases of grievance filing and processing. The Grievance Committee shall also oversee the proper handling of all grievances and, where appropriate, it may investigate and prepare step three grievances on behalf of a Local or any member; the Grievance Committee shall convene to consider whether to file such a grievance. The Grievance Committee shall take all necessary steps to adjust such grievances by negotiation with the Board or the General Counsel. Pursuant to Article XI, Section 5, all Locals shall notify their respective District Vice Presidents and the Grievance Committee Chairperson of any formal grievance and shall advise the District Vice President and Grievance Committee Chairperson of all dispositions pertaining thereto. Grievances affecting only members of one Local may not be considered by the Grievance Committee unless the matter has been referred to it by the Local or unless a member appeals to it from or in the absence of a decision by a Local. The Grievance Committee shall include among its duties the assistance and representation of members who appeal their appraisal ratings and who are threatened with disciplinary action, or against whom disciplinary action has been taken. It shall maintain complete records of its activities and periodically report to the membership as to the nature and status of matters handled by it.
Article VIII- National Executive Committee
Section 3. The Executive Committee shall be the final authority on all matters involving the National Union and the membership at large, subject, however, to such specific determinations of policy as may have been made by prior plenary and/or special conventions or agreements consummated as the result of bargaining negotiations with the Board and/or General Counsel. In the absence of a specific determination of policy by prior plenary and/or special conventions or agreements consummated as a result of bargaining negotiations with the Board and/or General Counsel the Executive Committee shall have full and final authority to devise and to implement any new policy or make any decision which in its judgment is required by the best interests of the Union and membership at large. Any new policy devised by the Executive Committee shall continue to be binding on the Union and the membership at large unless voided by a subsequent special or plenary convention, or by a majority of valid votes case by the membership at large by secret ballot. The Executive Committee shall determine the position of the National Union in all negotiations with the Board and with the General Counsel, and shall have the exclusive full and final authority, subject to the provisions of Article XI hereof, for negotiating on all questions that affect the membership at large. The Executive Committee shall have the full and final authority with respect to the internal affairs of the National Union unless overruled by a majority of the members voting by secret ballot in a referendum.
Section 4. The Executive Committee may authorize the expenditures of such sums from the general fund in the custody of the Treasurer as its deems necessary, provided, however, that no sum in excess of one hundred dollars ($100) may be expended for any one (1) item unless approved by two-thirds (2/3) of the members of the Executive Committee.
Article XI Bargaining and Grievance Negotiations
Section 4. The responsibility for representing the National Union and all bargaining unit employees in all grievance proceedings with the Board and/or General Counsel after the final Agency answer shall be vested in the Executive Committee, following consultation with the grievant, the Local Union and the respective District Vice President involved.
Section 5. All Locals shall notify their respective District Vice presidents and Grievance Committee Chairperson of any formal grievance and/or the filing of an unfair labor practice charge or complaint filed within their jurisdiction, and shall advise the District Vice President and Grievance Committee Chairperson of all dispositions pertaining thereto.
AFGE does not mention arbitration at all in its national Constitution and Bylaws. That is likely due to the fact that the union’s National President has delegated any authority he has to make those decisions to either the leaders of any units represented by a single local or to the council of local union leaders who direct the representational activities of those units with multiple locals, e.g., SSA, EPA, HUD, Border Patrol, Bureau of Prisons, DOL, etc.
There are a few very good reasons to provide an explicit appeal process to review decision to invoke or not invoke grievances to arbitration. An internal process might be more attractive to a member or even local rep than filing an unfair labor practice charge against the union. While those are very hard to win, they generate terrible publicity. Another statutory option a member or local rep has to is allege that the union is discriminating in violation of civil rights protections or even retaliating because of some prior complaint with the union. The former would bring in EEOC while the latter DOL. Unions can be held liable for certain decisions not to invoke arbitration, including shouldering some or all of the back pay obligation. (See NATCA, 66 FLRA 467 (2012))
Besides the legal liabilities, an appeal process is simply more democratic. It forces the higher level decision-maker to be more open and thoughtful when deciding to reject a local’s request to arbitrate. Stated differently, there is something wrong about a union demanding the right to grieve virtually any management decision under the labor laws but denying its own members the same opportunity.
In contrast, vesting all power in a single National President makes them very powerful, boosting their control over the union is far more than arbitration matters. It also enables that leader to implement a representational strategy without interruption from within.
If a union is going to have a process for appeal internal decision to invoke or not invoke arbitration, the following appear to be the necessary elements:
- Early notice from the single national decision-maker that a case will not be invoked so that any local party that disagrees can file a timely appeal.
- An automatic invocation of an appealed case to arbitration to protect any deadlines involved. (It might be wise to attach a control on or small disincentive to the right to appeal, e.g., if the appeal is upheld the local pays the entire cost of the arbitration, a local may only appeal one case a year, etc. No one wants every denied case to trigger the process.)
- A quick group review of the case and the other policy issues or facts that went into the initial decision not to be invoke. The original decision-maker should not be on this review group.
- An explicit rule for group decisions, e.g., simple majority, 2/3s vote, 3/4s vote, etc.
- A review standard for examining the decision not to invoke, e.g., the best interests of the entire unit or national union, just cause, etc.
Perhaps the most valuable thing a national union can do is to widely publicize among local officers the cases it has and has not invoked for arbitration over the last month or quarter. Local leaders could benefit from knowing what kinds of dispute and representational theories are going forward (or not) at least in their own unit.