Steward's NLRB Protections compiled by Bill Briggs, former NALC Chief Steward for Novato, Ca. 740 1/2 Petaluma Blvd. South; Petaluma , Ca. 94952-5133

"I thank James Ferree, Ellen Dannin, and Ellis Boal for their kind assistance". ~ Bill Briggs

Purpose

Union activists have often not fared well within the legal system. Sometimes this is because of the system itself. Sometimes it is because the activists [and their representatives] are unaware of the available techniques that should win their cases. This leaflet provides a thumbnail sketch of some of those techniques.

Forward

The shop steward is the front line of defense. This statement is accurate and very romantic. The rewards are very real. Only the shop floor steward actually knows the employee behind the grievance. Only the shop floor steward hears the pain in the voice. Only the shop floor steward sees an employee who comes back from a firing, work gainfully and productively , year after year after year.

One of my fonder memories is of what happened after grievances persuaded management to assign overtime equitably instead of to their favorites. Old antagonisms between employees who had been competing for the overtime money, simply faded away. The workplace became a much more comfortable place. The rewards of being a shop floor steward are very real.

But there is some elements of risk for the steward. The steward's manager tends to focus on the shop steward [not the branch president or some remote merged-branch full-time officer] as the person who prevents him or her from looking good - as the person who is directly responsible for the manager's not receiving the "numbers" needed for a promotion. The manager may even feel his job is on the line. This means that the manager can very easily develop an intense dislike of the steward. Under certain circumstances, the manager may even attempt to fire the steward.

In short, the steward can be a lightening rod for trouble, and, may be struck in stormy weather.

Even though they are fine values, Right, Justice, and Fairness do not pay the bills. It is very difficult to be away from work without a paycheck, wondering whether 1 person [the arbitrator] will give you your job back.

Recognizing these unique problems, Congress provided a special protection for union activists. So in addition to Just Cause, management has the additional hurdle of dealing with an NLRB filing when union activists are disciplined. [Actually, these protections apply to any employee if the employer discriminated against them for union activity - obviously most often the cases involve union activists.]. However, in discipline cases, management must prove its case, in NLRB , the burden is on the grievant.

The 7 Criteria for Just Cause and examples of ULPs [Unfair Labor Practices] are included in Appendixes A & B respectively. Appendix C deals with Fair Representation.

General Conduct

A steward need not "set an example of excellence" by his general conduct. Prudent behavior is to conduct oneself in such a manner that any thought of your engaging in conduct that would bring non-progressive discipline is laughable [especially by upper managers who might have to sign off on the discipline or who might be able to settle it.].

An UAW organizer once said: " The boss always has a gun to your head. You can give him the bullets."

Technical NLRB Procedures

You have 6 months to file a NLRB complaint. Starting the NLRB charge can be done over the phone, in person, and/or by union officer for you in the town where the NLRB is located. However you will still have to sign the complaint. The complaint can be mailed to you for your signature if you live far away from the NLRB office. You should be ready to provide a copy of all relevant documents plus, perhaps, a copy of your contract upon request.

If a steward is disciplined, demoted, discharged or discriminated against in any way, the steward should immediately file a charge with the NLRB alleging a violation of section 8(a)(3).

To win an NLRB discrimination case for activity in support of a union [Section 8[a][3]], it must be proved that:

[1] the employee engaged in union activity;
[2] the employer had knowledge of the activity;
[3] the employer discriminated against the employee;
[4] the reason for the employer's discrimination against the employee was the employer's antiunion animus and was motivated by the steward's union activities.

Stewards may have an easier time with an NLRB case than regular employees, because it's easy to prove a steward has engaged in union activity and that the employer knew about it.

Record-keeping

Any steward who is doing a good job of representing his or her members should have available evidence that will prove the discipline or discrimination violated the NLRA. The key is keeping good records of activities involving grievance handling or other union activities. Regardless of whether a discipline is ever issued, a good steward should have good records -- and if they are never needed to protect the steward's job, so much the better.

Good Documentation Could Consist of:

1] A daily pocket journal of grievances filed, with what manager, statements of dislike toward the steward, the union or the like;
2] Copies of grievances filed on behalf of the steward or other employees, with special attention to any which demonstrate animus to the steward.
3] Corroborating witnesses [or an admission in a signed interview or grievance settlement that management actually committed the heinous act [whatever it was] or spoke the nasty words [whatever they said.].
A clear admission of guilt will aid you if management in the future tries to fire you, but a winning case can be built without this, just on what is called circumstantial evidence.
Usually management "builds up to" a firing, so you will have opportunities to do this. The more documentation of separate anti-union attitude [animus], the better, especially any threats or promises intended to discourage union activities. These threats and promises, by the way, are independent violations of Section 8[a][1] of the Act, and the more of them there are, the better, for winning your case.

4] If you discuss the animus management has toward you and the union in a formal union-management meeting then signed minutes could be helpful in establishing your case. Many labor-management meetings do not have joint signed minutes [although the most formal should have them]. As a steward, you may not be in a position to insist upon them, but if you take notes, you can mail a certified or hand delivered confirming letter to your manager documenting the topics covered and asking that s/he correct any inaccuracies in writing.

5] Similarly, if you have `jointism', then you should have active labor-management groups at each level. Writing the group just above you, outlining the union animus and requesting assistance to get the "jointism" goals of mutual respect back on track, is one idea. In addition to providing documentation, it is possible that such a letter might even end the harassment, as a letter disturbs upper management's 'deny-ability' [I didn't know what was going on.] and an upper manager, is usually not anxious to have their own career advancement possibly jeopardized by some lower manager's unprofessional conduct.

Of course, randomly filing this documentation in several places rather defeats the purpose of the exercise. You can make copies but need to have 1 place where all this paperwork is stored on a regular basis.

I was sent home -- what now?

The time to develop the strategy and determine what techniques need to be used , is within days of the event, not within days of the arbitration.

Increased Protection from the NLRB

Now you benefit from the earlier filing of unfair labor charges, even if they were deferred to the grievance procedure. If you have a ULP charge on file, it is possible that you will be able to get "2 bites at the apple" [That is, you will get an arbitration and an NLRB hearing.]. .

Your NLRB complaint should contain a section 8(a)(4) charge for discrimination against a person who has engaged in NLRB activities. These are * currently * nondeferrable which means the NLRB will proceed with your entire complaint regardless of whether a grievance is filed and processed.

Consult a Lawyer Experienced with NLRB

Since even the arbitration will be a mini-NLRB hearing, you, the investigating steward, and the likely arbitration rep. will need to have a conference phone call with an active labor lawyer experienced in NLRB rulings [as they do change.]. Your Union may have this type of lawyer on retainer .

Also, you might want to give Teamsters for a Democratic Union a call at 1-313 -842-2600
in Detroit, Michigan. Their staff unfortunately deals with this type of situation perhaps more often than other unions. [They also put out the excellent, encyclopedic, shirtpocketed-sized Legal Rights Handbook--Teamster Rank & File by Ellis Boal]

Some unions have a national policy that they will not represent stewards in the formal NLRB procedure, relying only on the grievance procedure. If this is the case, appeal this decision to the branch meeting. As branch meetings are composed of stewards, presumably the meeting will authorize a couple of exploratory meetings with a labor lawyer [while perhaps balking at paying full legal representation]. The TDU can provide you with a listing of labor lawyers in your area.

Note: Arbitrators will, in attempts to determine credibility, often times focus on technical, or procedural, issues. Great care should be taken to insure that the Union's preparation meets all possible technical, procedural objections, as well as focusing on management's errors in this area.

Appendix A: Just Cause

page 126; Arbitration for the Practitioner; Walter E. Baer "Carroll Daugherty has developed 7 criteria that he has set forth and applied in a number of published decisions on discipline cases. The stature of this arbitrator makes these standards particularly noteworthy.

They are embodied in 7 questions.

1. Did the employee have foreknowledge that his conduct would be subject to discipline, including possible discharge?
2. Was the rule he violated reasonability related to the safe, efficient, and orderly operation of the company's business?
3. Did the company make a reasonable effort before disciplining him to discover whether he in fact did violate this rule?
4. Was its investigation fair and objective?
5. Did it obtain substantial evidence that the employee was guilty of the offense with which he was charged?
6. Was its decision nondiscriminatory?
7. Was the degree of discipline given him reasonably related to the seriousness of his proven offense and/or to his record with the company?

...Daugherty's carefully reasoned standards are the most complete and yet succinct....to be upheld, all 7 questions must be answered in the affirmative."

Appendix B: Some examples of reprisals against stewards are:

ordering a steward to do more difficult/ unpleasant work; unfavorable evaluations; denying pay opportunities; segregating the steward from other employees; depriving steward of overtime/other benefits; stricter plant rule enforcement; threatening physical harm; over-supervision; giving a poor reference; "direct dealing" with employees after you have filed a grievance on their behalf; threatening you with discipline because you "spoke up" when a manager was interviewing an employee.

[The fine book, Legal Rights of Union Stewards by Robert M. Schwartz gives great detail as to rights and non-rights of stewards. It can be ordered from 1-800-576-4552.]

Appendix C: Fair Representation

When I became a shop steward, I didn't have time to show the grievants what I was doing on their behalf. I also wondered about the lack of appreciation I received for my hard work. When I returned to work after my attempted firing, I did take the time to review the grievance file with the grievant and ask for suggestions and explain what was happening. The grievances began to have fewer "holes" in them. Also, the grievants were friendlier and more respectful.

While not legally required, reviewing the grievance file with the grievant, each time another step in the grievance-arbitration process has been reached, has much to commend it.

If a grievance has no merit, try to convince the employee. If the complainant still insists the grievance be filed, do so. Especially if the employee is non-union or you two have "a history of hostility". Try to avoid even the appearance of bad faith, hostility or arbitrary conduct. Remember, the Union is, first and foremost, an advocate.

Obviously, failure to distinguish between minor and major problems, engaging in wholesale horse-trading, or filing spurious , multiple grievances , can seriously damage a steward's credibility.

Some Legal Duties of Fair Representation:

1] Provide copies of the contract [local and national]; union constitution; and branch by-laws to any employee who asks for them. Explain all appeal rights and procedures or get some one on the phone who can.
2] Never guess about the contract --just say I do not know and get on the phone.
3] Understand that most, almost all, Unfair Labor Practices filed by angry employees fail. Do not be intimidated by threats of ULPs. Understand that as long as a shop steward and the other Union Officials act in good faith and honesty of purpose, the ULPs will fail. The Union may not withdraw or fail to process a grievance because of hostility, discrimination, or arbitrariness. It may not arbitrarily ignore a meritorious grievance or investigate or handle it in a perfunctory manner, that is, by merely going through the motions. Mere whim, or no reason, will not support a contention that the Union official merely exercised judgment.
4] The union does not have a duty to do "everything possible.." It does not have the duty to supply excellent, superior, or inspired representation to a grievant. The Union is permitted a "wide range of reasonableness" in deciding whether to process and how to process a grievance. Expenses can be considered, for instance.

the end.

Bill Briggs

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Bill Briggs (billbb@crl.com)
Nat. Assoc. of Letter Carriers #214
Empire Law School; 3E ; Santa Rosa, Ca.