The Special Status of Union Stewards
April 13,2018 / Robert M. Schwartz
Standing up to bosses is essential to being a steward. On the shop floor and in grievance meetings, you must defend the actions of members and contest those of management.
In many cases you should be able to make your points temperately, practicing “quiet diplomacy.” But occasions will undoubtedly arise when you will want to raise your voice, challenge a supervisor’s credibility, or argue your case in other vigorous ways.
A widely accepted labor relations canon allows employers to discipline workers who fail to act respectfully toward management. Some legal treatises call this the “master-servant rule.”
But if stewards were subject to this rule while engaging in union activity, they would face an intolerable risk: speaking up for a member could put their own jobs in jeopardy. To resolve this dilemma, labor law accords a special status to union representatives.
Under the National Labor Relations Act, when stewards and officers engage in representational activity, including grievance meetings and bargaining sessions, behavior that in other circumstances would warrant discipline must be tolerated.
According to one NLRB ruling, “The relationship at a grievance meeting is not a ‘master-servant’ relationship but a relationship between company advocates on one side and union advocates on the other side, engaged as equal opposing parties in litigation.”
In another decision, the Board said: “Some profanity and even defiance must be tolerated during confrontations over contractual rights.”
The principle of union equality, sometimes termed “steward’s immunity,” is also recognized by the courts. The Fifth Circuit said the NLRA protects “against discipline for impulsive and perhaps insubordinate behavior that occurs during grievance meetings, for such meetings require a free and frank exchange of views…”
Arbitrators generally agree. Typical is this ruling by arbitrator Fred Witney: “…the [steward] was not in the status of an employee when he called the division manager a fool and liar. …the relationship was between a Company and Union representative…. They stood as equals when negotiating the grievance.”
The equality principle allows a representative to speak in a loud voice, gesture, use “salty” language, demean a supervisor’s credibility, or threaten group protests.
When does the equality principle apply? Being a steward is not a general license to tell management to “stick it.” The equality principle applies when a steward acts in a representational capacity: argues a contract matter, attempts to resolve a problem, investigates a complaint, requests information, presents a grievance, disputes a decision affecting the bargaining unit, or leads a union protest.
It does not apply when a steward acts in his or her individual capacity: objects to a work assignment, responds to criticism of her job performance, or receives notice of her own discipline.
NLRA protection has its limits. Management may impose discipline for “egregious” misconduct that renders the representative “unfit for further service.” Cases in point include extreme profanity, racial epithets, physical threats, and blocking or touching a supervisor.
Stewards can also be disciplined for dishonesty, soliciting false testimony, taking part in illegal walkouts, or disrupting business meetings or work activities.
To deter a supervisor from mischaracterizing your conduct, ask one or more co-workers to join you during discussions with management.
Management may not punish a steward for filing a grievance—even if a case lacks merit or is petty or “offensive.” Nor may a steward be threatened for encouraging employees to file. The law also forbids other retaliation such as poor evaluations, burdensome work schedules, or transfers.
Many bosses believe that a steward can be held to higher standards than the rank and file. A supervisor might say, “Of all people, you are supposed to know the rules,” as he writes you up. This mindset is unlawful.
An employer may not enforce a rule against a steward that is not enforced against other employees. Nor may a harsher punishment be imposed for the same offense. Even telling a steward that he or she is expected to set an example is an unfair labor practice (ULP).
Exception. An exception may apply when a walkout violates a contractual no-strike clause. An employer can impose a more severe penalty on an officer or steward if the representative instigates the illegal stoppage or if the contract requires representatives to take affirmative steps, such as instructing employees to return to work.
ULP charges. If management threatens, discriminates against, or disciplines a steward for grievance activity, the union should file a ULP charge as well as a grievance.