……Can Cost You Your Job and More
Often, our consultants are brought into situations in which the local labor union has begun representation of an employee or in which we are asked to work with the local labor union in the representation of the affected employee. Both circumstances, combined with years of experience representing both labor and agencies, provide us the ability to analytically assess union effectiveness in the course of representing employees; and, frankly it is often not too good.
The representation of federal employees in discipline and adverse actions is complicated. In our experience, most local labor unions are not technically prepared to provide such representation to safeguard an employee’s career and future financial security. There are notable exceptions, predominantly those unions providing a defined Legal Services Plan (LSP) affording the employee services not only from an attorney, but an attorney specializing in federal personnel law and hopefully familiar with the specific agency employing the employee. However, this notable exception is rare in our experience (usually offered by unions representing law enforcement officers) and most employees are forced to settle with local union representation provided by employees who are either elected or appointed to some level of union office, without regard to technical ability in representing employees in either labor or employee relations issues. This means the effectiveness of such representation varies greatly among locals, and even among representatives in the same local union, with no enforceable minimum standards of performance. In short, an employee facing potentially disastrous lifelong implications of removal, or suspension without pay, gambles when they rest the outcome of their situation with untrained or inexperienced representatives. While there are many reasons for this environment, we will save that for another post.
The administrative representation of employees in federal sector is inherently complicated whether dealing with pure labor negotiations or employee relations such as adverse actions. This complexity only increases as the representational/ appeals process continues. For example, the first steps in representation of an employee against whom an adverse action is proposed is typically a comparatively informal exchange between the deciding official in the proposed action and the employee and his or her representative. There may be a verbal and or written appeal submitted. However, subsequent steps and processes become increasingly complex such as MSPB or arbitration appeals or appeals to the EEOC. Even the initial steps in those processes are comparatively simpler compared to the advanced stages of hearing preparation, discovery, motions practice, and the actual hearing and any subsequent appeals post-hearing. It never gets easier. Furthermore, the chance of a positive outcome diminishes further into the process as both employee and representative gradually lose direct control and influence over the outcome of the matter in dispute.
Tools of the Trade
Just as agency representatives are equipped with critical tools and knowledge in dealing with complex employee and labor relations matters, union representatives should be similarly equipped. Agency representatives use a variety of tools and knowledge such as:
- Cyberfeds (highly recommended federal personnel labor and employee law database)
- Westlaw (legal research)
- Bloomberg / BNA Labor Law Resources
- Dewey Publications (Civil Service Advocacy Series)
- The entire series by Broida including, FLRA, MSPB, arbitration, settlement, MSPB Practice, EEO Practice by Hadley, etc.
- Specialized agency specific information authored by agency attorneys
- Specialized training from LRP, FDR, and in-house
- Localized case management systems (paper files are increasingly becoming a practice of the past)
- Team based consensus approach to problem solving
- ELR teams with increasingly advanced education (in the case of our work-group, no ELR Specialist has less than a Masters Degree. MBA, or J.D. w/ at least 10 years of specialized experience, some with significant labor (union) experience)
- And a host of other tools and resources and never ending training
This list is provided to demonstrate the significant difficulties union representatives and employees must endure when representing employees. Most local unions provide little to no training and most likely no access to any of the tools indicated above. In our experience, local union representatives with access to the tools indicated either 1) are not trained in their use or 2) misuse the tools to include misapplication of case law, often with adverse consequences.
The bottom line? When faced with serious workplace issues and intending to rely on union representatives, ask critical questions such as,
- What is your experience?
- What research services do you use?
- Do you have attorneys we can use?
- How much training have you had?
Remember, you, as a union member, are a client who paid for services. You have reasonable expectation to receive adequate (not necessarily the best) representation. Your union cannot adequately represent you unless it is equipped and trained to do so.
Sidebar: InformedFed frequently works with and through union representatives at the local and regional level. In some cases, they will provide payment for fees directly to InformedFed and in other cases, they provide direct reimbursement to union members.