When Unions Go Bad

Somewhat regularly, we field calls from union members in the federal sector (and even union officials) regarding issues with union representation or leadership. The issues may involve claims of failure to provide union representation (including adequate representation are most 20130225-informed-fed-logo_150common), the union ceding pay, discriminating against non-dues paying bargaining unit members, misuse of union funds, misuse of official time, unlawful political activities while on official time, conflicts of interest, unlawful union elections, just to name a few concerns relayed to us. Some are legitimate concerns whereas some are not (“feeling” slighted does not constitute a legitimate concern for example). Some concerns are actionable while others are clearly not. Either way, there are a variety of mechanisms by which affected members can seek to address their concerns. Here, we will provide a few means in this regard, but by no measure is what we provide all inclusive.

Internal Accountability Mechanisms

Union Regulation

In addition to external controls, federal sector unions are bound by a myriad of internal controls. These controls usually, and most notably, come in the form of union constitution and by-laws. Reviewing these documents would be a good start for anyone believing they have a legitimate issue with a union. However, while these documents provide some level of measurable regulation concerning the governance of any union, they can be somewhat abstract and of little practical value in determining the real obligations of the union; they are not operational guidance.  in fact, most federal local unions adhere to very little, if any, operational guidance at the local level.

Local unions should make available, or otherwise provide, copies of the local constitution and by-laws upon member request. Additionally, most by-laws contain provisions requiring the local union to make available, for inspection, the internal financial records of the union upon request by members in good standing, usually with some type of advance notice. These records may consist of actual bank statements, check registers, credit card statements, and approved budget of the union but must include all financial records of the union. If, upon proper request, the local union officials refuse, or otherwise fail to make available such records for inspection, the affected union member should contact the Department of Labor Office of Labor Management Standards and file a complaint.  Complaints of this type could result in a DOL audit of the unions finances.

Organizationally, union members may also seek assistance from the higher level organization in the hierarchy. Typically, for example as in the case of the American federation of Government Employees (AFGE), a District Office provides some measure (limited in reality) of local union oversight and compliance enforcement. This level of the organization likely has a District President as well as a full office staff. They are empowered to receive complaints from union members and can, technically, exert influence over the local union including implementing measures to gain compliance. Additionally, if your local union is a member of a Council (for example the National Immigration and Customs Enforcement Council), you could advance your complaint to that organization. However, our practical and historical experience (yes, even as union officers) is that a council would likely prove the most ineffectual at regulating local unions or enforcing compliance.

The Agency

Agencies have limited control over the regulation of unions for obvious reasons of conflict. However, claims involving the misuse of official time, partisan political activities by union officers (on official time, see Department of Labor, 61 FLRA 209 (FLRA 2005), or misuse of funds, could very well fall under the jurisdiction of the agency Office of Inspector General (or Office of Professional Responsibility, or Office of Internal Affairs) as they potentially involve criminal charges. Most OIG offices will conduct intake of allegations and at least a preliminary review if the allegations are well articulated with sufficient detail. If OIG (or applicable office) declines to pursue the matter judicially, it will likely refer the matter back to the agency for administrative review and/or the appropriate agency with oversight, most notably, the Department of Labor (Criminal Division).

 

External Accountability Mechanisms

Externally, there are two primary accountability/enforcement avenues: The Federal Labor Relations Authority (FLRA) and the Department of Labor Office of Labor Management Standards (DOL/OLMS).

The FLRA

The FLRA enforces the Federal Service Labor-Management Relations Statute (FSLMRS) at 5 U.S.C. §§ 7101-7135.  In short, it provides administrative regulation and obligations over federal unions and enforces compliance, most notably in cases involving the Duty of Fair Representation.  If a union member believes the union is not in compliance with the requirements and obligations under the FSLMRS, he or she can file an Unfair Labor Practice (ULP) complaint and should consult the ULP resource page at the FLRA website for more information. The FLRA now accepts cases via it’s E-Filing system.  However, persons filing a case against a union with the FLRA should be sure the issues are within the jurisdiction of the FLRA and well articulated.

The DOL OLMS

The DOL/OLMS provides an additional level of regulation and compliance requirements to both public and private sector unions.  This additional level of regulation and compliance primarily focuses on union elections and finances.  Unlike the FLRA, the DOL OLMS often criminally, or at least civilly, prosecutes individual union officials and unions for non compliance. The investigations are conducted by OLMS District Offices.  The DOL/OLMS even provides specific instructions on how to file a criminal or civil complaint.  The DOL/OLMS provides a comprehensive listing of criminal and civil enforcement actions on its website.

 

Note:  Unions, including those in the federal sector, are required to file annual financial disclosure reports with the DOL/OLMS as part of the Labor-Management Reporting and Disclosure Act (LMRDA). You can obtain a copy of your union report online at this site.  Unions that fail to file required reports can be subject to civil and criminal penalties.

 

Summation

As noted above, there are many methods of holding unions and union leadership accountable.  The aggrieved member however must make the effort and pursue the proper manner of redress in a well articulated manner, or otherwise risk completely wasting their time.  As previously stated, the indicated methods of addressing issues between membership and union officers, or the organization itself, are not all inclusive.  For example, union members can also civilly sue the union, or its officers.  Officers can be sued in their individual capacity and are not otherwise immunized from such action by fact of elected or appointed office.  However, arguably the best method of correcting union deficiencies that are not criminal in scope is to simply engage the democratic process and replace the offenders.  You can even request the Department of Labor monitor the union election.

 

 

 

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