CAN THIS EMPLOYEE BE REFUSED UNION MEMBERSHIP?
Suppose a non-unit employee in your agency was so angry with your union that he put the following message on his Facebook page addressing the members of your local: “rise up and create a grassroots movement so strong that your National knows you will either have your vote or you will decertify them and get a new union. And don’t let anyone tell you that you can’t decertify your union if they become corrupt….Look at UnionFacts.org. There are step[‑]by[‑]step instructions on how to get rid of a corrupt union.” Now suppose that a short time later that employee was reassigned into a position in your unit and asked to become a member of your union. Can you refuse him membership? That is what FLRA had to decide this week.
The answer depends on 5 USC 7116(c) which states, “For the purpose of this chapter it shall be an unfair labor practice for an exclusive representative to deny membership to any employee in the appropriate unit represented by such exclusive representative except for failure— (1) to meet reasonable occupational standards uniformly required for admission, or (2) to tender dues uniformly required as a condition of acquiring and retaining membership. This subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this chapter.”
FLRA decided that NFFE had committed a ULP by denying him membership because even if an employee “admittedly was determined to destroy the union ‘from the inside,’” that does not provide an acceptable basis for determined to destroy the union ‘from the inside,’” that does not provide an acceptable basis for denying the employee initial membership in the union. It pointed to the fact that the employee only had one posting about the union on Facebook and that was before the employee became a member of the unit.
However, and this is a very big, however, once the person is a member and takes action while a member “once [an employee] has been admitted to membership[,] he [or she] will be subject to discipline by the [u]nion for subsequent misconduct consistent with the requirements of” § 7116(c).” The Authority has held that unions may impose these forms of discipline if: (1) the discipline concerns the employee’s actions while the employee was a member of the union imposing the discipline; and (2) the employee’s actions “threatened or attacked the union’s existence as an institution. Check out NFFE, Local 2189, 68 FLRA 374 (2015)
According to the union member bill of rights, union members have the right of free speech. Most federal sector union members and BUEs I know don’t have much interest in their union, nor do they know their contracts or rights under the statute. If a member or non-member is critical and the union tries to punish them for it the union is only helping to prove the criticism. Good union leaders counter arguments with facts and admit and correct their errors. They also take the union to the BUEs in an effort to educate them. If as a union official you can’t take the heat or do your job and are only in it for the perks, don’t run for office. If you discriminate based on a BUE’s opinion or membership status you’re behaving just like any bad supervisor.
Duty to fair representation…that was the deal when federal employees were allowed to organize. The employees don’t need to join, but all must be represented. As distasteful as this seems it is the way it is.