UE Stewards have special rights under the law and the union contract. They provide real protection for members and stewards …but you got to know them before your can use them! As a Steward, you’re elected to protect the rights of UE members and defend the contract. Our style is militant and aggressive. It’s the best defense against bosses who try to undermine hard-won gains. To be effective, it’s important to know the weapons and protections we have as stewards. Most of us know our weapons: the contract, the grievance procedure, the Labor Board, and, most important, shop floor unity and organization. Less well-known, perhaps, are the protections we have under the law.
(The rights described here are protected by the National Labor Relations Act (NLRA). Public sector workers are protected by similar state or federal laws. Check with your UE staff person.)
Don’t let the boss con you! As a UE Steward, you’ve been elected to represent your members — a job that most bosses would like to keep you from doing. Here’s a brief list of some of your rights and obligations.
- You have the RIGHT to grieve about unfair treatment — whether you saw it happen or someone calls it to your attention. Bosses may accuse you of “soliciting grievances,” but don’t be fooled! It’s your duty to encourage workers to grieve about legitimate issues — or file them yourself.
- You have the RIGHT to carry out investigations of grievances, including interviews of grievants and witnesses. Most UE contracts provide for investigation on “company time.” For those that don’t, there is often a clear past practice that allows this. But, if not, every grievance must be investigated as thoroughly as necessary, even if it’s on your own time.
- You have the RIGHT to organize and encourage your fellow workers to take action in support of an issue or grievance, so long as it doesn’t take place on work time and interfere with production. The boss can’t stop you from getting people to wear stickers, sign petitions, carry signs, or take similar actions on break or lunch time. (Of course, stickers, buttons and caps can be worn all the time, unless there’s a special reason for a dress code.)
- You have the RIGHT to request the information you need to process a grievance from management. You should put these requests in writing. Management is obligated to respond.
- You have the RIGHT to be present in any meeting between the boss and an employee if it might lead to discipline.
- You have the RIGHT to be present every time a grievance is being “adjusted” or settled. Even if a worker has taken up the grievance on their own, the boss can’t bypass the union when responding.
- You have the RIGHT to stand toe-to-toe with your boss when you’re conducting union business. You can get loud, angry, forceful, and speak your mind during grievance meetings. This is the “Equality Principle” that says you and the boss are equals in grievance discussions.
All of these rights are legally guaranteed, but they depend on how well you use them. When you do, your members will find their rights are protected, too.
The Equality Rule
Probably the most important protection is called “The Equality Rule.” This rule acknowledges that your job is likely to involve confrontations with management—confrontations that could lead to discipline under the normal rules of employer-employee relations.
You can openly disagree and argue vigorously with management during grievance meetings; question management’s authority; and, demand certain actions of management, all without risking disciplinary action.
The “Equality Rule” makes you a “legal equal” to the boss. But, it’s in effect only when you are doing your job as a steward, not when you’re acting as an individual employee. You’re acting officially when you investigate and argue grievances, request information and otherwise defend UE members.
There are limits to what you can do, though. Threats of violence and actual violence are prohibited, as are extreme profanity, name calling, and personal attacks. Actions barred by your contract are not protected, either. To prevent supervisors from claiming you “exceeded the limit,” it’s wise to have another steward or UE member with you during meetings with management.
The boss is not allowed to use discipline, either real or threatened, or any other form of intimidation to discourage you from doing your job. For example, you can’t be denied overtime opportunities, promotions, job transfers, bumping rights, or any other entitlement as punishment for doing an aggressive job. Nor can management assign you to the most undesirable jobs or more closely supervise you than other workers.
Some supervisors try to hold stewards to higher standards than others. “You, of all people, should know the rules,” is often a statement heard when some rule has been broken. This is illegal, too. You’re not a “super-worker” and you can’t be singled out for unusual discipline to “set an example” or because you should “know better.” The only exception: not carrying out responsibilities required of the union under the contract.
What to Do
If the boss breaks these rules, there is most likely a contract grievance—and, an Unfair Labor Practice (ULP) charge can be filed with the Labor Board (NLRB). The time limit for filing a ULP charge is within six months of the violation. Contact your UE staff member before filing an Unfair Labor Practice charge with the Labor Board.
As in the case of most other grievances, a workplace strategy for solving the problem is often much more effective than dealing with the NLRB—especially because the Board is often frustratingly slow to respond. But, if you feel that a ULP charge should be filed, talk with your UE Field Organizer and local officers about the best way to proceed.
Legal Rights of Union Stewards (Delegates)
In addition to the contractual rights found in our Industry Wide Agreement, there also exist legal rights that protect Stewards. The origins of these rights are found in law (especially the National Labor Relations Act) and in decisions of the Supreme Court and the National Labor Relations Board (NLRB).
These legal rights include, but are not limited to, a general principle of equal status with management when functioning as Steward; a right to solicit grievances; and a right to active participation in a Weingarten setting.
- The general principle of equal status with management. By its very nature, a Steward’s job requires vigorous advocacy, even confrontation. Confrontation, however, conflicts with the usual rules of employee conduct, which stress obedience to supervisors. (Virtually all arbitrators subscribe to the “obey now – grieve later” rule as it applies to employees.) If Stewards had to live by these rules, they would be in a hopeless situation. They would be faced with a choice of not being an effective advocate, or risk being disciplined. A recent example involved a supervisor who ordered a Steward not to investigate a possible grievance off the clock, while at the same time, refused to allow time on the clock.
The NLRB and the courts have recognized this problem and have created a special legal status for Stewards when they engage in union business – they are considered to be equals with management. This means that conduct which might otherwise result in discipline must be tolerated.
As the NLRB has stated: The relationship at a grievance meeting is not a “master-servant” relationship but a relationship between company advocates on the one side and union advocates on the other side, engaged as equal opposing parties in litigation.
In a similar vein, the US Supreme Court has said the National Labor Relations Act contemplates robust debate and gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point.
There are two important limits to the equality principle. First, conduct by a Steward which the NLRB considers outrageous or indefensible is not protected. Second, the equality principle only applies when the Steward is acting in an official capacity.
Outrageous or indefensible conduct includes extreme unprovoked profanity, racial slurs, physical threats, or striking a supervisor.
The equality principle only applies when the Steward is acting in a role as Steward, i.e., presenting a grievance or requesting information. The principle does not apply when the Steward is not acting in the capacity of Steward.
Arbitrator Levak, in APWU case W8C-5D 20644, analyzed some general principles relating to Stewards in a protected status, by doing an exhaustive review of prior arbitration decisions on the subject. He identified three categories of Steward activity: 1) where a Steward is personally abusive to a supervisor; 2) where a Steward disrupts production; and 3) where a Steward threatens or assaults a supervisor.
1) Personal abusiveness. During a closed grievance meeting to discuss Union matters a Steward possesses a special status. The parties meet as equals and a Steward has wide latitude in what he does and says.
However, when a grievance meeting or discussion is not closed, but is observable by other employees – whether in a grievance meeting or on the workroom floor – a Steward has less immunity and must not become personally abusive.
2) Disruption of production, A Steward loses immunity status when engaging in conduct that interferes with management’s right or ability to operate. Thus, a Steward is not prohibited from interrupting his own work to talk to a supervisor about a Union related matter. However, such a Steward is in a work duty status; therefore, he must conduct himself in a non-disruptive, professional manner at all times.
Furthermore, since he is in a work duty status, he must return to work if instructed to do so by his supervisor. If he believes the supervisor is violating the contract, or has no authority to order him to return to work, `obey now – grieve later’ is the rule.
3) Threats or assaults. Threats of harm, or assaults, or attempted assaults are never protected. A Steward who engages in such activity loses all privileged status, and is subject to immediate discipline.
- The right to solicit grievances. There is a common belief among managers that union Stewards may not solicit grievances, that they may file grievances only if employees complain and ask them to file. This notion is false. The NLRB has specifically ruled, The solicitation of grievances is a protected activity for stewards as well as other employees.
- The right to active participation in a Weingarten setting. The Supreme Court held, in a case known as Weingarten, that an employee who is being questioned by management, and who has a reasonable belief that discipline may ensue, has a right to representation prior to answering questions. The right must be invoked by the employee. A Steward has no right to invoke it for the employee. In other words, the employee must request a Steward.
However, once an employee invokes Weingarten, and a Steward is brought in, the Steward has a right to assist and counsel the employee.
Management sometimes asserts that the Steward may only be a silent witness. This is wrong. The Steward has the following rights:
When the Steward arrives, the supervisor must inform the Steward of the subject matter of the interview.
The Steward must be allowed to take the employee aside for a private pre-interview conference.
The Steward must be allowed to speak during the interview.
The Steward has the right to request that the supervisor clarify a question so that the employee understands what is being asked.
After a question is asked, the Steward can give advice on how to answer.
When the questioning ends, the Steward can provide additional information to the supervisor.
It should be noted that, if the Weingarten rules are complied with, Stewards do not have the right to tell workers not to answer questions.
Stewards will be most effective if they are knowledgeable about their legal rights as well as their contractual rights. When management violates the legal rights of Stewards, the judicious use of charges against the employer with the NLRB can be effective in educating management about their legal responsibilities.
This article was based in large part on a small book titled The Legal Rights of Union Stewards written by a labor attorney and educator named Robert Schwartz.