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.

EQUALITY PRINCIPLE

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.

NO REPRISALS

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.

SAME STANDARDS

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.

A New Steward’s Most Common Questions

New stewards come into the job with a million questions, ranging from the simple, like where to obtain grievance forms, to the difficult, like how to achieve just the right kind of working relationship with management. Here are some of the most basic questions – and answers – designed to help new stewards get up and running and familiar with their new responsibilities.

While arguing a grievance, I shook my finger at a manager. He said, “If you do that again, I will have your job.” Did I go over the line?

No. Finger shaking is not egregious. File a ULP charge against the illegal threat. Mild swearing during a grievance discussion, short of extreme profanity, is also protected. The Board reinstated a steward who was fired for calling his boss “a stupid ass.” In another case, it removed the reprimand of a representative who told his supervisor, “I don’t give a fuck who you call.”

In the middle of a grievance discussion, the personnel manager declared: “This meeting is over, go back to work.” I continued to argue for a minute or so. Am I subject to discipline?

This depends. The Board says an employer must tolerate a short cooling-off period at the end of a grievance discussion as “it is unrealistic to believe that the principals involved in a heated exchange can check their emotions at the drop of a hat.” Punishment is allowed, however, if you refused repeated orders to return to work.

When a steward tried to stop her boss from performing bargaining-unit work, several workers ceased their duties to listen. The steward said the supervisor should have his mouth bashed in and she was going to do it. Then she dared him to fire her, which he did. The next day the steward called to apologize, but the company refused to take her back. Do we have a case?

Probably not. The steward threatened violence and disrupted work, the essence of egregious misconduct.

Can a supervisor tell a steward to “shut up and listen” during a grievance meeting?

Yes, if this is the worst of it. A vigorous give-and-take is allowed both parties. Bosses are also allowed to criticize union activity as long as the comments do not include threats, coercion, harassment, or other forms of intimidation.

At a grievance meeting, I accused a supervisor of altering an employee’s time records. She said she would sue me for slander. Should I be concerned?

No. Statements during grievance and arbitration sessions are legally privileged against defamation lawsuits. File a ULP charge over the illegal threat.

Since my election as steward, supervision has been all over me, sometimes staring at me for hours. Is this legal?

No. Monitoring a steward more closely than other workers violates the Labor Act.

An employee in my department told her boss that a co-worker was sleeping on the job. When I told her that the union has a bylaw against informing, she complained to human relations that I “harassed” her. Company policy defines harassment as “any statements considered offensive by another employee.” Can the company take action against me?

No. Stewards may insist that members obey union rules. Encouraging solidarity is protected by the NLRA even if a worker is upset or offended.

The special protections afforded union representatives apply to a broad range of grievance related activity, such as persuading witnesses to testify. The fact that an employee is annoyed does not make a steward’s conduct unprotected.

Can I get in trouble for advising a worker not to sign a warning slip?

Yes, if a company policy requires employees to sign. The safest course is to direct the worker to write “Signed under protest.”

Personnel wants to get me because I am “too confrontational” when arguing grievances. If they check my job application and find a false entry about my educational level, could they fire me?

Not legally. Investigating a steward’s background because of protected activity violates the NLRA.

What are my rights in handling grievances?

You have the right to aggressively enforce and police the contract, to get information from your employer to aid in enforcing the contract, and to vigorously represent co-workers in grievance handling. You have the right to investigate grievance matters. That investigative authority includes interviewing witnesses, visiting areas where grievances occur, and getting all relevant documents.

What are my other rights?

You have the right to sign up new members. You have the right to listen to complaints from all employees. You have the right to conduct other union business, at appropriate times: examples include helping employees with worker compensation claims, passing out leaflets and helping people get registered to vote, and so forth. You can’t interrupt someone’s work for routine union business, but you can’t be prevented from conducting any union business you believe appropriate during breaks and before and after work. You have the right to speak up forcefully, in a way that recognizes your equal status with employer representatives when dealing with union representation issues.

Is the union legally bound by my actions?

When acting as the union steward you are the agent of the union. Your actions are no longer personal actions; they are legally considered the actions of the union. For example, sexual harassment or racial bias displayed by a union steward can create financial liability for the union. At the same time, stewards do not have the legal right to agree to anything barred by the union contract, or to ignore language of the contract.

Do I have to go to the boss's office to talk about a worker’s grievance?

No. It’s not up to management to decide where a grievance is discussed, but it’s not up to you, either: it’s a negotiable issue. While you might want to enforce the contract in front of a worker whose rights have just been violated, you don’t have that right. You and the supervisor have to agree on a time and place to talk about it.

Can management refuse to hear a grievance?

No. The union has the right to file and process grievances that it believes are legitimate. If your supervisor refuses to acknowledge your grievance, the union has the right to take it to the next level of management.

Can I lead a workplace action to protest management's failure to honor a grievance settlement?

A protest is considered protected union activity when it is held in a peaceful, non-violent manner during nonworking time. You can also do certain things during the workday: boycott the company cafeteria, for example, or, assuming no dress codes are in place, wear identical, message bearing T-shirts or buttons.

If my contract gives me paid time for union business, what kind of business does that include?

You have the right to police the contract, file and process grievances, and speak out in enforcing the contract. Fulfilling these duties comes under union business. Some contracts may outline additional duties considered union business, for which stewards may be paid.

Can I be disciplined for insubordination?

Only if your extreme actions threaten the authority of a supervisor in the presence of other workers. Generally a steward (when acting in his or her role as a steward) can be disciplined only for conduct that is “outrageous” or “indefensible” and is “of such serious character as to render the employee unfit for further service.” Gesturing and talking loudly and forcefully cannot be considered “outrageous.” But you can’t use racial epithets or extreme profanity or threats of violence, or organize illegal slowdowns or work disruptions, lead prohibited work stoppages or file grievances in bad faith.

Can I put what I want on a bulletin board?

Not necessarily. Check your contract: some things may be barred, like notices supporting political candidates or documents that personally attack management representatives. But if your union contract allows the use of bulletin boards, you can probably post a wide range of things, including notices, cartoons, photos… most anything that pro- motes the union’s legitimate work.

Can I be held to a higher standard than other workers?

No. If you come in late or make an error on the job, you can’t be treated any differently than any other worker who does the same thing.

CSEA LOCAL 1000, AFSCME, AFL-CIO

Representative Definitions

Steward

The steward is responsible for communicating with workers and educating workers about important workplace issues.

The steward is the most visible part of the Union to the rank-and-file membership. Stewards keep members involved with the Union and that membership involvement and commitment is a basic ingredient for a successful, effective union.

The local/unit president designates and appoints activists as stewards. The Local and Unit Constitutions and By-Laws require presidents to appoint as many stewards as necessary.

The steward is not trained/certified to represent members in grievance or disciplinary matters.

Grievance

The local/unit president designates and appoints activists as grievance representatives. These activists are responsible for handling the representation of the Local/unit bargaining unit employees in the investigation and filing of grievances.

Discipline Representatives

The local/unit president designates and appoints activists as representatives in disciplinary proceedings. These activists are responsible for representing members in disciplinary proceedings.

No officer or activist may handle/process a grievance or represent a member in a disciplinary proceeding until he/she has attended CSEA training and received the appropriate certification and appointment.

In accordance with Article V, Section 6: Duties of Officers of the Local and Unit Constitutions, “All Officers shall attend Officers’ Training sessions, Grievance Training Sessions as well as Disciplinary Training Sessions as provided by the Association. Failure to abide by these requirements may result in the office being declared vacant.”

Stewards & Smoking Issues

Few issues brew up a storm as quickly as the regulation of smoking. Things can get very messy fast. The descent into irrational name-calling breaks speed records: “Smoke Nazi,” “Horse’s Ass,” “Anti-tobacco Freak,” “Fascist,” and “Snobbish” are just a few of the printable epithets used recently in an e-mail exchange about a management-imposed smoking refutation in a Midwestern factory. When you set up a strong physical and behavioral addiction against the employer’s power over us on the job, the result is a confusing, difficult and generally unpleasant situation for a union steward.

There is good reason for all this heat. Smoking, in addition to its physical effects, symbolizes for many people one of the few worker-controlled break time diversions or recreations available during their highly regimented, very stressful and often dangerous workday. Smoking is also seen as a class issue. It is in fact true that working-class people smoke at a higher rate than middle- and upper-class people.

Nevertheless, not only relevant local, state and federal laws but also union contracts arc changing ail the time, generally in the direction of discouraging smoking.

How Smoking Becomes an Issue

Stewards may have to face the smoking issue when any of the following happen:

The employer proposes or institutes unilateral changes in smoking rules, perhaps without proper notice and negotiation with the union;

A new law is passed, locally or statewide, which then must be applied and interpreted in your workplace;

In contract negotiations or the run up to them, either the employer or a group of workers want more smoking restrictions or a complete ban;

The employer embeds smoking regulation in a “wellness” program through an Employee Assistance Program (EAP) or elsewhere that might be compulsory’, not confidential, and/or linked to health insurance premiums or even continued employment; this might include smoking off the job.

When these happen, what should the union’s response be?

The Steward’s Goals

The union may face these circumstances as grievances, unfair labor practices, bargaining issues or workplace controversies. But with this issue, as with most others, the steward’s main task is to help manage the interpersonal debate, no matter how heated it gets, in such a way as to make the union stronger and keep the boss from using the issue to increase his power over workers. The main task then breaks out into the need to;

  • Protect and increase worker health and safety generally.
  • Weaken the employer’s power to manage us as they please.
  • Maintain a focus on the larger workplace health and safety hazards that the employer needs to “fix.”
  • Take a cue from health and safety strategies and change the discussion from “fixing the workers” to “fixing the hazard.”
Smoking as a Health and Safety Issue

Framing the smoking issue as a health issue, we can compare the employer and the union perspectives as follows. The employer focuses on productivity and insurance cost, looking for profit maximization and legal plausible denial. I his leads to a “fix the worker” approach, familiar from behavioral safety programs.

The union needs to approach it from the “hazard identification and removal” point of view. The goal is to protect worker health, block the expansion of employer control over activity that does not interfere with work, maintain and expand worker compensation and increase insurance and health care protection. That should lead stewards to a “fix-the-hazards” approach. But the union also needs to “support the victim.”

Stewards can help make life better for all workers by making the following part of an overall program to reduce smoking:

  1. Help for workers who want to quit. However, this help has to be confidential, effective, free, and voluntary. If the employer wants to bargain over smoking, make him bargain an appropriate quitting program that observes these standards.
  2. Sensitivity to nonsmokers’ rights and complaints but also actions on other workplace hazards that may be more severe, long ignored, and especially dangerous to smokers when combined with smoke, and infuriating when increased smoking restrictions arc proposed.
  3. Functional smoking areas for smoking-addicted workers—not outdoors with no shelter, but a place reasonably close, accessible, with decent seating, and ventilated.
The Danger of Doing Nothing

In the past, some unions avoided the smoking issue completely, arguing that until the boss cleans up many other recognizable health and safety hazards in the workplace, the issue of smoking should be kept off the table. This argument is a good place to start: Smoking is, in fact, a health issue. However, there are risks in holding smoking hostage to all other hazards. The National Labor Relations Board in 1991 ruled that smoking rules are a mandatory subject of bargaining, but that the union can effectively waive its right to demand bargaining if it ignores management action on the topic for too long, as in past practice.

Important CSEA Phone Numbers for Stewards

Stewards are often asked for information or phone numbers of resources and benefits that are offered by CSEA The list below is a compilation of important CSEA phone numbers for you to use as a reference. Remember that union member benefits are another way that we can make CSEA relevant to our members. If you need help or information on any of the benefits listed below, please call our CSEA Member Benefits line at (800) 342-4146.

Stewards and Workplace Violence

One of the steward’s many roles is to look out for the health and safety of co-workers, and the threats don’t always come from dangerous equipment, toxic chemicals, foul air or the like. In the United States, according to government statistics, there are an estimated 1.7 million workplace assaults annually – and 600 workplace homicides.

It’s a dangerous world out there, but stewards can make it safer by staying alert and using the power of the union to educate bosses, members, criminal justice authorities, and the public.

Understand the Distinctions

First, look at the kinds of violence that occur in your work setting. There are four types:

  • Criminal Intent: The violent person is a stranger who has no legitimate relationship to the work site and is engaged in criminal activity, such as a robbery.
  • Customer/client/patient: This is the predominant type of violence in health care, social services, and the public sector, and involves patients, inmates, and clients who assault staff.
  • Co-worker: It is a myth that this is the predominant form of workplace violence. It comprises a small percentage of workplace homicides and assaults, but it gets the most attention from employers: they can blame workers rather than examining their own procedures. Where this blame game is occurring it should not be ignored by stewards and unions.
  • Personal. This refers to domestic violence, perpetrated by an acquaintance or family member, that spills into the workplace.

Each type of violence calls for a different response from stewards. One of the first steps is to become familiar with the frequency and extent of violence in your specific setting. Examine injury and illness records: they can provide helpful information on the extent of reported assaults, including what department they are occurring in and the amount of lost time – if any – they are causing. This information can be used to get management to take the problem seriously. But be careful: under reporting is common in many works it es with frequent assaults, and other methods may be useful, such as worker surveys, inspections, or interviews of injured members.

What Next?

Once you’ve established there’s a problem, what kind of measures can you look to institute to make your workplace safer?

  • Develop access control systems in buildings frequented by customers, clients, and patients.
  • Where money is an attraction, as in convenience stores, look at drop safes, increased lighting, and security cameras. Have at least two staffers on duty late at night.
  • Get training on recognizing and intervening with potentially violent customers, clients, and patients.
  • Implement effective emergency response systems and pro- grams to bar unruly customers and clients from the work site.
  • Develop conflict resolution programs and threat assessment procedures for dealing with disputes within the workforce.
  • Get training in the recognition of domestic violence in the workplace, and systems to assist affected workers by developing specific safety plans and other supports.
  • The U.S. Occupational Safety & Health Administration does not have a standard on workplace violence prevention, but it does offer guidelines and other resources at this website: http://www.osha-slc.gov/SLTC/workplaceviolence/index.html.

The OSHA guidelines call for management commitment and worker involvement; a comprehensive risk assessment; implementation of prevention measures; training, and periodic evaluation of the program.

Check with your union leadership to determine if your employer has a written, comprehensive violence prevention program. Beware: often, implementation of such programs lacks union and worker involvement and many of the important steps in the policy are never carried out. Stewards can help address this by providing feedback to the leadership.

If there is no program to address workplace violence, consider making a presentation to your executive board or health and safety committee, proposing that the union raise the issue with management. And you can propose that contract language be negotiated requiring workplace violence prevention programs.

Investigate incidents in which a member is subjected to violence and consult with the union leadership on how to pursue your findings. Possible union follow-ups include filing a grievance, raising the issue at the health and safety or labor/management meeting, creation of a workplace violence task force, or approaching management to implement preventive measures discovered in the investigation.

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Combating Steward Burnout

Every union steward knows that stress is built into the job. You work closely with other people to try to resolve their problems, and that means your are constantly dealing with crises and frustration. At the same time, you have to stay on top of time limits and understand complex and confusing work rules and contracts.

Unless you are careful, these constant stresses and tensions can quickly lead to burnout. Psychologists have identified burnout as a definite set of symptoms most often experienced by workers whose job requires them to work constantly with other people’s problems.

“Dealing with people can be very demanding.” writes psychologist Christina Maslach in her book Burnout: The Cost of Caring. “It takes a lot of energy to be calm in the midst of crises, to be patient in the face of frustrations, to be understanding and compassionate … While most people can find the energy to do it occasionally, it is very hard to do all of the time. And yet, ‘all of the time’ is the expectation we have of people workers.”

If you find yourself feeling tires all the time, getting irritable at everyone you know, and working longer but getting less done, you may be experiencing burnout. Other symptoms include feeling isolated from friends and family, losing your sense of humor, and feeling guilty about not working hard enough.

Even if you don’t have theses specific symptoms, the stress of the steward’s job can wear you down. Try these suggestions to reduce stress and prevent burnout.

  • Think Positively about your steward’s job. Make a point of periodically reviewing your accomplishments. And if you have a particularly challenging problem to solve, think about optimum solutions to that problem rather than focusing on it’s difficulties.
  • Give Yourself A Break. Take this suggestion literally – plan to have regular breaks away from your steward’s job. If possible, set up certain times of the day or week that are just for play with family and friends as well as time just for yourself to rest, relax and decompress. Include exercise in you plan – it’s a proven stress-buster.
  • Create A Support Network. You need to have people in your life who can offer useful advice and information. Don’t hesitate to ask for help from other stewards or officers in your local. Most likely someone else has confronted the same problem you are facing, and can pass on suggestions for resolving the situation. You also need friends or family members who can simply listen and offer sympathy without being critical or pushing their own agendas.
  • Maintain Emotional Distance. People will come to you with problems that may cause them intense pain. Although you will want to express compassion and understating, you also need to remain detached so you can function effectively. If you become emotionally involved, you may not be able to clearly see the problem and potential solutions.
  • Stay objective and rational as you listen. Focus on seeing the problem in abstract and intellectual terms. Your objectivity will permit you to fully understand the situation and focus on the best possible resolution.
  • Create Lists Of Priorities And Goals. The steward’s job requires mastery of many details and the ability to juggle multiple tasks. Keep track of all these demands by taking a few minutes every day to structure your priorities and write down the tasks you want to accomplish.
  • Make sure the list is concrete and definite. For example, don’t write “Resolve problem about overtime.” Instead, break the job down into manageable pieces, listing goals such as reviewing the contract, interviewing specific workers and requesting specific records.
  • Accept Your Limitations. Every steward occasionally forgets something important, makes mistakes or fails at some task. Nobody is perfect, so stop beating yourself up on yourself. Instead, resolve to do the best you can, and move on the the next challenge.

And, Finally, Some Wisdom from a Pro

And for the final word on avoiding the stress that can lead to total burnout, consider this philosophy of life, offered by legendary pitcher Satchel Paige, who stayed in the major leagues until he was 47 years old:

  1. Avoid fried meats, which angry up the blood.
  2. If your stomach disputes you, lie down and pacify it with cool thought.
  3. Keep the juices flowing by jangling around gently as you move.
  4. Go very lightly on the vices such as carrying on in society. The social ramble ain’t restful.
  5. Avoid running under pressure at all times.
  6. Don’t look back. Something might be gaining on you.

Stewards Lead Fight For Accountability

As union activists, we need to take the political process very seriously as we head into another election cycle.

There is a tendency among working people to feel overwhelmed ad/or insignificant in the face of national and global events, and in many ways this is completely understandable. After all, while we’re caring for our families, managing mounting personal debt, fighting our bosses and otherwise just barley managing to scratch and claw our way through the day, it’s hard to feel whole lot of emotional connection to political issues, including the 2008 Presidential nominations.

But we’ve got to continue to do what we, as a union activist, do best – ask critical questions about how things got to be the way they are and how we can change them. We have to believe that the more we can do to foster independent thinking in the workplace among our rank-and-file, the more our members will begin to think independently about the great questions of our time. As we search for leaders to take the labor movement into the future (such as through the CSEA Leadership Education and Development program), we must seek out critical thinkers who believe in a society in which everyone shares accountability and an opportunity to thrive.

Throughout the past seven years, working people have been constantly challenged by a Presidential administration that opposes just about everything we dedicate our lives to fighting for – respect, dignity and a fair day’s work. Time and time again, the administration has rolled back the progress in workers’ rights and benefits we – and the workers before us – have fought to win. It has been a decade dominated by “shrink, shift and shaft” – shrink government, shift resources and shaft working people.* We have been fighting back for years, but now is our time to finally win the war the administration has been waging against workers.

One of these rollbacks is in public health care, an important service in our society that the administration opposes. Unfortunately, our veterans are among the many Americans who have been harmed by the administration’s anti-labor policies. The Walter Reed Army Medical Center, once an esteemed military hospital where many of our men and women in uniform recuperate from devastating wounds, was recently found to be in disrepair, with many veterans forced to recover from their injuries amongst mold, mice and other shoddy conditions.

The Walter Reed scandal, and let’s not forget the bungled Hurricane Katrina response, should provide an important lesson to us about the need to ensure we have leaders who are accountable to everyone, not just the most powerful. As stewards, we are the voices of working people and it is up to us to step up, be heard and make a difference in the direction that out country goes in next year. Anti-labor policies and constant rollbacks of previous progress have served as a staple of this administration, yet we have the voices – and the potential votes – to lead our country to some real change in 2008. No matter what your political affiliation may be, we are all workers who deserve respect and accountability.

Many of our members may be exasperated by your call to them to join in making the changes we all need. We all have numerous work and personal responsibilities that keep us busy from morning to night, but this time, it’s truly different.

This is the fight for our future.

_ Eric Muldoon
Labor Education Specialist

* The phrase “shrink, shift, shaft” is borrowed from a United for a Fair Economy workshop of the same name. For more information, check out www.faireconomy.org