Let’s start with a hypothetical. Assume that the local’s election of officers is coming up in three months and that the only member who can beat the current local president is waffling over whether he, Marvin, will run. Marvin is currently a steward. Who wins this election is important to the district business agent because she, Susan, and her boss want to see the current local president, Tom, put out of office. Tom has voted against the district and national leadership at recent conventions, regularly refused to follow their representational advice, signed bad local agreements, and publicly mocked the union’s national political endorsement for the nation’s President. So, the district business agent, a full-time employee of the union and not a member of the local in question, contacts Marvin to ask what she can do to convince Marvin to run.

 Marvin is very clear with Susan. He says that he will agree to run if the business agent promises to drop a pending arbitration case now. Marvin says that he has the Deputy Director’s personal promise that if the arbitration case is dropped and Marvin becomes president that the agency will pay the travel expenses for all union reps to go to the district training conference, something Marvin really wants. The case involves a institutional FLSA claim for unpaid overtime for about 50 employees in the Information Technology shop. Marvin, an African-American, has tried to get the employees’ help to force that shop’s management to hire more minorities, but they have refused. Currently only two of the 50 are minorities. Tom, the current local president, comes from the IT shop and has refused to help Marvin get employee support.

Susan asked Marvin only one question, namely, how does he know the Deputy Commissioner will pay the travel if the case is dropped. Marvin says that he asked the Deputy in a hallway conversation and trusts the guy. Marvin explains that he and the Deputy worked together for years, remained good friends, and that together they will probably be able to vastly improve the very poor current labor-management relationship Tom has.

After they talked Susan got the case file from another business agent who was handling the pending arbitration. The District VP had already approved the case for arbitration. The case potentially could generate about $100,000 in back pay for the 50 employees whose claim is based on an alleged FLSA violation as well as an allegation that overtime was not distributed “fairly and equitably” as required by the contract. It is not a sure winner, but it has enough potential to likely force a good settlement and most of the 50 are members. Nonetheless, getting Tom out of office is too important to Susan—and her boss. So, she gets the case withdrawn from arbitration and closed. Tom is furious, but she tells him that the case had no merit in her professional opinion and would be a waste of funds.

So, here is our question. Has Susan, the union staffer, improperly interfered in the local election by doing something in return for Marvin’s agreement to run? Has she done anything wrong by dropping a case, e.g., violated the duty to fairly represent or other violated some ethical obligation?

Before we answer, let’s run through several of the ways a union staff member can influence an election–other than spending union funds to support a candidate, campaigning for or endorsing a candidate. Each of those is firmly recognized as wrong by the Department of Labor. First, staff can make deals with candidates to run or not run. The deal could involve promises to do something or not to do something. For example, Susan could have promised to get Marvin on national bargaining teams or even to refuse to help Tom accomplish anything so he looks bad in the months before an election. If she was supporting Tom, the current president, she could have agreed to travel out to the local a few times before the election to give speeches and training classes that would make him look good. She could even get flattering stories about him in the district newsletter. Second, union staff can put a potential challenger in touch with the president of another local to get guidance on how to win an election. Third, they can “motivate” the local into running a membership incentive campaign in one or more part of the unit which is likely to support the preferred candidate. Fourth, they can make deals with local management without telling the local president. Fifth, should the candidate the staff member prefers lose an election staff can quietly alert them to a flaw in the election and prompt an appeal for a rerun.

Now for our answer, but you are not going to like it. DOL has not been clear at all about illegal interference beyond the three things we cited, namely, spending union funds in an election, staff endorsing candidates or staff campaigning for candidates. If union leaders want to stop this kind of indirect staff influence in their local elections, their best bet is to do it through the union Constitution. It needs a provision far clearer than a simple prohibition against staff involvement, e.g., “Staff make not interfere in nor influence union officer elections.” The Constitution should list some of the specific indirect mechanisms staff have that are barred. Or the executive board could pass a binding resolution doing the same thing. They could even create a mechanism for filing charges against staff along with specific penalties so that the staffer’s job is not protected by a higher level union official who secretly is delighted that the staffer did what she did. (It does not appear that the FLRA has ever had a case where the employees whose pending arbitration case was withdrawn primarily, if not solely, to promote or harm a candidate’s election change.  So we will not speculate on whether that would be a ULP.)

Governor Chris Christie’s staff put the issue of indirect staff election influence front and center for the American public with the bridge stunt. None of us should be so naive to believe this does not happen in unions.. If you want to see how one union is handling this, check out the SEIU document entitled, “Legal Restrictions on Involvement in Union Election Campaigns by Union Officers, Local Union and Staff.” Just enter the title in a search engine and it will pop right up.


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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