The Special Status of Union Stewards

Excerpted from The Legal Rights of Union Stewards, which includes citations to decisions and case law. labornotes.org/store.

Standing up to bosses is essential to being a steward. On the shop floor and in grievance meetings, you must defend the actions of members and contest those of management.

In many cases you should be able to make your points temperately, practicing “quiet diplomacy.” But occasions will undoubtedly arise when you will want to raise your voice, challenge a supervisor's credibility, or argue your case in other vigorous ways.

A widely accepted labor relations canon allows employers to discipline workers who fail to act respectfully toward management. Some legal treatises call this the “master-servant rule.”

But if stewards were subject to this rule while engaging in union activity, they would face an intolerable risk: speaking up for a member could put their own jobs in jeopardy. To resolve this dilemma, labor law accords a special status to union representatives.

EQUALITY PRINCIPLE

Under the National Labor Relations Act, when stewards and officers engage in representational activity, including grievance meetings and bargaining sessions, behavior that in other circumstances would warrant discipline must be tolerated.

According to one NLRB ruling, “The relationship at a grievance meeting is not a 'master-servant' relationship but a relationship between company advocates on one side and union advocates on the other side, engaged as equal opposing parties in litigation.”

In another decision, the Board said: “Some profanity and even defiance must be tolerated during confrontations over contractual rights.”

The principle of union equality, sometimes termed “steward’s immunity,” is also recognized by the courts. The Fifth Circuit said the NLRA protects “against discipline for impulsive and perhaps insubordinate behavior that occurs during grievance meetings, for such meetings require a free and frank exchange of views...”

Arbitrators generally agree. Typical is this ruling by arbitrator Fred Witney: “...the [steward] was not in the status of an employee when he called the division manager a fool and liar. ...the relationship was between a Company and Union representative.... They stood as equals when negotiating the grievance.”

The equality principle allows a representative to speak in a loud voice, gesture, use “salty” language, demean a supervisor’s credibility, or threaten group protests.

When does the equality principle apply? Being a steward is not a general license to tell management to “stick it.” The equality principle applies when a steward acts in a representational capacity: argues a contract matter, attempts to resolve a problem, investigates a complaint, requests information, presents a grievance, disputes a decision affecting the bargaining unit, or leads a union protest.

It does not apply when a steward acts in his or her individual capacity: objects to a work assignment, responds to criticism of her job performance, or receives notice of her own discipline.

NLRA protection has its limits. Management may impose discipline for “egregious” misconduct that renders the representative “unfit for further service.” Cases in point include extreme profanity, racial epithets, physical threats, and blocking or touching a supervisor.

Stewards can also be disciplined for dishonesty, soliciting false testimony, taking part in illegal walkouts, or disrupting business meetings or work activities.

To deter a supervisor from mischaracterizing your conduct, ask one or more co-workers to join you during discussions with management.

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Management may not punish a steward for filing a grievance—even if a case lacks merit or is petty or “offensive.” Nor may a steward be threatened for encouraging employees to file. The law also forbids other retaliation such as poor evaluations, burdensome work schedules, or transfers.

SAME STANDARDS

Many bosses believe that a steward can be held to higher standards than the rank and file. A supervisor might say, “Of all people, you are supposed to know the rules,” as he writes you up. This mindset is unlawful.

An employer may not enforce a rule against a steward that is not enforced against other employees. Nor may a harsher punishment be imposed for the same offense. Even telling a steward that he or she is expected to set an example is an unfair labor practice (ULP).

Exception. An exception may apply when a walkout violates a contractual no-strike clause. An employer can impose a more severe penalty on an officer or steward if the representative instigates the illegal stoppage or if the contract requires representatives to take affirmative steps, such as instructing employees to return to work.

ULP charges. If management threatens, discriminates against, or disciplines a steward for grievance activity, the union should file a ULP charge as well as a grievance.

Q&A

Q. While arguing a grievance, I shook my finger at a manager. He said, “If you do that again, I will have your job.” Did I go over the line?
A. No. Finger shaking is not egregious. File a ULP charge against the illegal threat. Mild swearing during a grievance discussion, short of extreme profanity, is also protected. The Board reinstated a steward who was fired for calling his boss “a stupid ass.” In another case, it removed the reprimand of a representative who told his supervisor, “I don’t give a fuck who you call.”

Q. In the middle of a grievance discussion, the personnel manager declared: “This meeting is over, go back to work.” I continued to argue for a minute or so. Am I subject to discipline?
A. This depends. The Board says an employer must tolerate a short cooling-off period at the end of a grievance discussion as “it is unrealistic to believe that the principals involved in a heated exchange can check their emotions at the drop of a hat.” Punishment is allowed, however, if you refused repeated orders to return to work.

Q. When a steward tried to stop her boss from performing bargaining-unit work, several workers ceased their duties to listen. The steward said the supervisor should have his mouth bashed in and she was going to do it. Then she dared him to fire her, which he did. The next day the steward called to apologize, but the company refused to take her back. Do we have a case?
A. Probably not. The steward threatened violence and disrupted work, the essence of egregious misconduct.

Q. Can a supervisor tell a steward to “shut up and listen” during a grievance meeting?
A. Yes, if this is the worst of it. A vigorous give-and-take is allowed both parties. Bosses are also allowed to criticize union activity as long as the comments do not include threats, coercion, harassment, or other forms of intimidation.

Q. At a grievance meeting, I accused a supervisor of altering an employee’s time records. She said she would sue me for slander. Should I be concerned?
A. No. Statements during grievance and arbitration sessions are legally privileged against defamation lawsuits. File a ULP charge over the illegal threat.

Q. Since my election as steward, supervision has been all over me, sometimes staring at me for hours. Is this legal?
A. No. Monitoring a steward more closely than other workers violates the Labor Act.

Q. An employee in my department told her boss that a co-worker was sleeping on the job. When I told her that the union has a bylaw against informing, she complained to human relations that I “harassed” her. Company policy defines harassment as “any statements considered offensive by another employee.” Can the company take action against me?
A. No. Stewards may insist that members obey union rules. Encouraging solidarity is protected by the NLRA even if a worker is upset or offended.
The special protections afforded union representatives apply to a broad range of grievance-related activity, such as persuading witnesses to testify. The fact that an employee is annoyed does not make a steward’s conduct unprotected.

Q. Can I get in trouble for advising a worker not to sign a warning slip?
A. Yes, if a company policy requires employees to sign. The safest course is to direct the worker to write “Signed under protest.”

Q. Personnel wants to get me because I am “too confrontational” when arguing grievances. If they check my job application and find a false entry about my educational level, could they fire me?
A. Not legally. Investigating a steward’s background because of protected activity violates the NLRA.

Excerpted from The Legal Rights of Union Stewards, which includes citations to decisions and case law. Available at labornotes.org/store.

A version of this article appeared in Labor Notes #469. Don't miss an issue, subscribe today.

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