There is a prevailing theory that it is better to have a union representative (also commonly referred to as “union steward”), than not have a union representative, given such a need. We are certainly proponents of labor organizations and their important representational and historical role in the workplace, particularly since we have been on “both sides of the fence”. Despite this, we inarguably concluded this prevailing theory is not necessarily true, and in some cases, may be disastrous for the employee receiving union representation.
Underlying Premise of a Union Representative
The underlying premise of the benefits of representation is that the union representative, whether union, friend, attorney, or relative, is qualified to provide such representation and more knowledgeable than the person needing the representation. The qualifications of a particular representative, or the need for such qualifications, is of course open to interpretation. Nevertheless, we are sure everyone would agree union representatives should be qualified to represent employees requesting assistance. This is especially important because an unqualified representative providing unqualified consultation could cause significant issues for an employee relying on such advice since an employee acting on bad advice from a union representative is not immunized from being disciplined or removed from employment based on the reliance of unqualified advice. Having attended a wide array of training institutions such as the National Labor College, Cornell’s Industrial Labor Relations School, University of Chicago School of Labor Employment Relations, and many others, we believe formal (credentialed academic) training, followed by mentorship, internal (local) training, and experience, is foundational to qualified representation. However, most local unions do not provide access to such advanced training and instead typically rely on some informal process of “on the job” training. In some cases, this on the job training is supplemented with slightly more formal training provided by a higher level union organization. Only in exceedingly rare cases, do local unions require some type of formal professional certification of a union representative.
Potentially Bad Advice from a Union Representative
In our experience, employees have been incorrectly advised by union representatives in a number of ways including, but not limited to,
- Advising employees to ignore supervisory instructions or otherwise delay fulfillment of supervisory instructions. Sometimes the union advice will take the form of “the contract says you don’t have to do that” or “they can’t make you do that”
- Telling employees they do not have to meet with management officials without a union representative present
- Advising employees to refuse to respond in writing concerning an incident/event after directed to do so by a supervisor
- Advising employees to omit facts from written responses or verbal statements
- Advising employees to not respond to questions from a supervisor directly in the chain of command of the employee or a supervisor not in the employee’s chain of command (for example, while on detail)
- Advising employees to delay a meeting with a supervisor until a union representative is available
- Advising employees to “obtain everything in writing” from a supervisor before complying with instructions
No Immunity For Employees
It is vitally important employee’s understand that following the bad advice of a union representative (or anyone for that matter) offers no protection from resulting adverse actions and is not a defense upon appeal. For example, an employee’s refusal to answer questions during an investigation based on the flawed or incorrect advice of counsel does not exempt an employee from a finding of insubordination (the employee was removed). See, Weston v. Department of Housing and Urban Development, 83 FMSR 5011, 14 MSPR 321 (MSPB 1983). In Martinez v. Department of Defense (MSPB 2004), an employee resigned his position citing, in significant part, the flawed advice of his union representative. It did not matter. The affected employee alleged his resignation was involuntary as a result of bad information provided by the union. The Merit Systems Protection Board (MSPB) dismissed the employee’s appeal. We could go on listing more supporting cases, but we are sure you get the point.
Immunity for Union Representatives
Unions and union representatives are allowed to provide bad advice to employees without consequence. The Federal Labor Relations Authority (FLRA) does not assess the quality of consultation or representation provided by a union or its officials and has no jurisdiction in that regard. There is a misperception by many employees, based on the Duty of Fair Representation Doctrine, that a (federal) labor organization maintains an obligation to provide “quality” representation to its members. This is simply untrue. The doctrine of the Duty of Fair Representation (download the FLRA paper on the “Duty of Fair Representation) refers to a union’s duty to represent the interests of all (designated) bargaining unit employees, regardless of paid membership or race. This duty emanates from 5 USC 7114 (a)(1), which states that, “an exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.”
There are some key causes affecting the quality of union representation and union representatives; particularly in the public sector. We noted the following root causes of poor union representation in our former capacities as union officials as well as agency representatives.
- Voluntary nature of union representatives and the institutions of most public sector labor organizations
- Non-compensated positions (failure to compensate union officials for time spent working cases outside their tour of duty while on official time)
- Union officials are not held to performance standards
- Frequent turnover
- Use of union position for personal favor (gain) with management
- Most public sector labor organizations are personality driven rather than systems driven
- Inadequate local union reimbursement for expenses of union representatives in connection with cases (think office supplies, copying, mail, etc)
- Failure to develop local certification processes (even the most basic)
- Failure by head union officials to communicate with union representatives
- Lack of formalized training programs
The bottom line is that affected employees must obtain reliable consultation or direct representation when dealing with serious workplace issues or seemingly minor issues that could turn serious. Employees may only have one opportunity to “get it right”.
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