On the way to my 2nd Lt. bars, OCS put me in a series of high stress mock combat situations to assess the quality of the decision I would make as the commander. One of them had me in charge of small squad behind enemy lines that had just stolen some highly valuable enemy intelligence.  We were racing to get back to our command post because the information would save the lives of dozens of soldiers. However, we had a severely injured soldier who was slowing us down with enemy troops closing on us.  If we left him and ran, the enemy might find out we had the intelligence and render what we had useless.  But we could not outrun them if we carried him.  Once the situation was set, the field judges asked me, “What are you going to do now lieutenant?” Actually, they shouted it and demanded an answer in 30 seconds with my squad members and designated severely wounded guy staring at me. I want to put you in a similar situation and ask you what you would do as the Executive VP of the local.

Imagine you are at a meeting with the local president, Stan Banks, and a few top agency leaders when the president announces he is not going to run again because he does not have enough union reps on full time official release to work with him in the office every day. When management asked who would likely succeed him, the president said that Diane Yost would probably get the job because he was the only person who could beat her. Management’s immediate response was a negative one filled with stories of how toxic Yost was for the relationship and the union local when she previously held the presidency. It also pointed out that it knew that Yost had been a thorn in the side of the national union’s leaders as well.  Bank responded that that was all true, but he was too tired to do another term alone all day in the union office.

You had planned to run for president if Stan stepped down, but you thought that would be years from now.  As you rolled the idea around in your head, you thought you could beat Yost because you had been very active filing class action civil rights grievances on behalf of various protected classes in the local who were being cheated out of awards, promotions, and fair appraisals. That had given you great visibility in the local and lots of new friends. But a day before you were going to talk to Stan about running, the regional attorney for the local called a meeting with the president and you.

It turned out that the LR Director had contacted him, talked about how much the agency detested Yost, and offered the union a deal.  It would immediately amend the term agreement to give the local another full-time person to assist Banks on two conditions.  First, Stan would have to agree to run again and serve a full term. Second, the union would have to drop an age discrimination EEO case it had filed on behalf of retirement-eligible employees claiming that the agency had discriminated against them when distributing annual awards.  The EEOC had just ordered the agency to share with the union within 30 days the statistics it had been withholding for years from the union and employees and the agency knew they were devastating.

The union attorney wanted the local to take the deal given that it would solve the union’s institutional problems. The local president loved the deal because he was not eager to go back to his agency job and never though disparate impact or systemic discrimination was real discrimination.

You, on the other hand, are strongly opposed for a few reasons and make these thoughts known. First, it seems to you like a ULP because it was giving the agency a substantial role in deciding who the next local union president would be. Second, you considered it unethical to drop a civil rights case filed on behalf of a minority group in return for a union institutional benefit that is tainted by management support of the union. Third, you have informally seen the statistics through a management leak and know they will be terrible for management.  Even if they are not enough to win the civil rights case, they will put PR, morale, and negotiation mushroom cloud over the agency.

SO, WHAT DO YOU DO NOW LIEUTENANT VICE PRESIDENT? The statute (5 USC 7102) gives employees the right to “act for a labor organization as a representative” as well as have their representatives “chosen by the employees….” 5 USC 7116(a)(1) makes it a ULP for the agency to “interfere” with those rights. Additionally, 7116(a)(3) bars an agency from “sponsoring, controlling, or assisting” a union. While there are no FLRA decisions involving the facts we have outlined above, the following excerpt involving a slightly different situation where management was exerting influence over the selection of union officers provides a useful hint as to how FLRA might decide our theoretical case. (DOL and Susan Wuchinich and Local 2513, AFGE, 20 FLRA 296 (1985):

In our view, taking part in the selection of union officers to lead and direct the organization, or taking part in the selection of union options on alternative courses of action, constitutes such “participation in the management of a labor organization,” and is thereby proscribed by section 7120(e).  Nothing in the Statute or its legislative history suggests that such conduct by supervisors is permissible, regardless of their level in the organization of an activity.  Indeed, if management officials, supervisors or confidential employees were to influence a union’s choice of bargaining goals by voting in an election to determine those goals, such involvement would, in our view, constitute sponsorship, control or, at the very least, assistance of the union in violation of section 7116(a)(3) of the Statute.  Similarly, if such individuals were to influence the selection of union negotiators or officers charged with achieving or administering those goals, the result also would violate section 7116(a)(3).

Here are some options for you to think about in terms of the power you have beyond ULPs. Think about them because agencies are getting more and more sophisticated at influencing who controls union locals.

  1. resign and walk away from the union,
  2. blow the whistle with members via an email,
  3. wait for the deal to be finalized and then file a ULP claiming illegal domination and support of the union by the agency, which is a 7113(a)(1) and (3) ULP,
  4. file internal charges against the local president for misrepresenting members,
  5. file bar charges against the union attorney for conspiring with management in violation of law to illegally influence a union election, or
  6. go along to get along?


About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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6 Responses to

  1. H.J. James says:

    Interesting ethical questions to consider. However, I would like to know supporting evidence the author secured for this assertion: “…because agencies are getting more and more sophisticated at influencing who controls union locals.”

    • AdminUN says:

      Observational evidence based on 44 years of close contact with agency managers. They know how to make offers such as these to keep agreeable local leaders in place. Similarly, they know the value of the local leader who stays in place with very low membership and typically only files grievance on behalf of herself or the union as an institution. They also are funded to stay in place lest some upstart come along, replace them and actually activate the bargaining unit. And then there are union leaders who will sign collective bargaining agreements with very few benefits or improvements for members in return for a comfortable life for the union leaders. Those are very well-known situations on the agency side of the table that are ripe for exploiting.

  2. Dave Christenson says:

    Whatever happens, this is a high risk situation for the VP, President, Union attorney, and to a lesser extent management. As we see in modern partisan politics, the truth of individuals’ actions and intentions will not necessarily vindicate them in the public eye.

    I would consider taking the Union attorney’s position to Union higher ups. I don’t see how you could make anything stick against management for their illegal proposed deal. They will deny it ever happened. You could report management to the IG over that, but that will take months to years to come to any conclusion. I can’t see how the Union election parts of the deal would ever be written down. They are so blatantly illegal that any attorney concurring on the deal is indeed vulnerable to bar sanctions.

    The VP has to tell the President and the Union attorney the deal is toxic and unacceptable. Also, tell the President that its illegal for him to negotiate with management over his future candidacy for Union office. He’s committing a ULP when he does that, and he’s harming the Union.

    The melodrama heats up if the EEOC settlement actually gets reduced to writing. The VP can oppose the settlement, the dilemma is how much of the seemy back story to publicize.

  3. Charles Clark says:

    I would do 2, 4, and 5 since they don’t preclude each other. I have found in my 25 or so years of being an NTEU Chapter 68 steward that most union officials have their eye ultimately on IRS management careers and so they just aren’t aggressive. Management simply doesn’t need to make deals like this. In my time we’ve had 9 former chapter presidents and 4 went to Labor Relations and 1 is a department manager. Our last Ececutive VP is in Labor Relations as well. And none of the ship jumpers left because they were defeated in an election.

  4. Roman Goldstein says:

    What about reporting to the OSC or IG? The agency is offering to spend a good bit of money on a FTE, which could be a violation of its appropriations or a gross waste of funds. There are also arguable violations of the executive branch ethics laws.

    Maybe also find a sympathetic reporter or, better yet, Congressman.

    Also, doesn’t the EEO AJ have to sign off on class settlements? That’d be another way to object.

  5. Rob Arnold says:

    First, the Agency will probably offer the same deal or something close if you insist the EEO case is not part of it. Second, the election will happen anyway, and there’s nothing preventing you from running against Stan Banks, and – if you decide to – talking about the deal Stan Banks made.

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