There is a prevailing theory that it is usually better to have union representation, than not have union representation, given such need. While we are certainly proponents of labor organizations and their representational roles, particularly since we have been on “both sides of the fence”, we found this prevailing theory to not necessarily be true, and in some cases, disastrous for the employee receiving the representation.
The underlying premise of the benefits of representation is that the representative, whether union, friend, legal, or relative, is qualified to provide such 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 such 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. 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 extremely rare cases, do local unions require some type of professional certification of union representatives.
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 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.
- 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.
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. 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, 104 LRP 22377 (MSPB 2004), an employee resigned his position citing, in significant part, the flawed advice of his union representative. The affected employee alleged his resignation was involuntary as a result. The MSPB dismissed the employee’s appeal. We could go on listing more supporting cases, but we are sure the reader gets the point.