The president of the Columbus Firefighters, International Association of Fire Fighters Local 67, is facing disciplinary charges of insubordination, neglect of duty, and violating the department’s rules of conduct. The charges stem from a dispute between Battalion Chief Jack Reall (the president of Local 67) and Assistant Chief Karry Ellis last September over a reorganization of EMS personnel.
The Columbus Dispatch does a very good job of explaining the details about the charges, but I would rather take a shot a discussing a very important – and very controversial – aspect of this case that is rarely discussed: when is a union official not a union official? In other words, when must a union official remain silent in the face of a potential collective bargaining dispute and sing the company song… and conversely when may he/she fight against something he/she believes is a violation of his/her members’ rights?
There are actually several sub-questions that come up when a topic like this gets discussed – and it is worth acknowledging that different questions will yield different answers:
- When should a union official be able to argue the union’s position… what does conventional wisdom say?
- What do pro-labor folks say?
- What do pro-management folks say?
- What do courts say?
- What do labor boards say?
- What state are you from… and does your jurisdiction recognize collective bargaining or not? Note: this is a game changer – because if there are no rights to bargain collectively, if employees have no right to engage in concerted activities for their mutual protection, a union official in Chief Reall’s position would be dead wrong and would have to pay the price.
In law school we studied a case out of Massachusetts, Dedham v. Labor Relations Commission, 365 Mass. 392, 312 N.E.2d 548 (MA, 1974). Those who have either of my books, Legal Considerations for Fire & Emergency Services or Fire Officers’ Legal Handbook, will recognize the Dedham case as it appears in both publications.
It involved a firefighter union official who engaged in a “heated conversation” with the deputy fire chief about housework to be performed on holiday. The union official was suspended for five days for insubordination. The discipline was appealed through the state’s civil service system, and it was upheld.
The union also filed an unfair labor practice charge against the fire department claiming that the union official was engaged in concerted activities at the time he was arguing with the chief, and the deputy was wrong in ordering the firefighters to violate the collective bargaining agreement. The labor relations commission agreed with the union and ordered the discipline reversed.
The town appealed the labor relations commission’s ruling to court on several grounds, including the question of whether the labor relations commission had jurisdiction to overrule discipline that had already been upheld by the state’s civil service commission. The trial court sided with the town, but on appeal the Massachusetts Supreme Judicial Court sided with the union and the labor relations commission. The SJC upheld the unfair labor practice and ordered the discipline reversed.
In discussing the case in law school, our labor law professor explained that when a union official is arguing with a manager about a subject that is within the scope of collective bargaining, it is very difficult to draw a line between permissible advocacy and insubordination. That being the case he said it is exceedingly difficult to discipline a union official who is arguing about a breach of contract or other workplace wrong without management risking an unfair labor practice.
So where is that imaginary line between a union official acting as a union official and a union official acting as an employee? It is not at all clear and the Dedham case proves it: the state civil service commission said it was insubordination and the state labor relations commission said it was protected union advocacy. A judge in a trial court said it was insubordination and the state’s supreme court said it was protected union advocacy.
In Massachusetts the state labor relations commission trumped the civil service commision. Perhaps Chief Reall’s case will answer the question for Ohio. To my friends on both sides in Columbus – (I’m staying neutral) – keep us posted on how the case unfolds.