Union Free Speech and Insubordination

Today’s burning question involves the right of an IAFF firefighter to speak his mind at a union meeting… and whether he can later be bullied by a ranking officer over what he said.

Today’s Burning Question: At a union meeting, two members (a captain and a lieutenant) have a disagreement regarding an issue being debated.  Some words are exchanged but it is nothing out of the ordinary for a union meeting.  A few weeks later while at work the captain asks the lieutenant to step outside the fire station to talk.  Once outside, the captain tells the lieutenant he didn’t appreciate being “called out” at the union meeting and told the lieutenant not to do that again. The two begin to argue, but the lieutenant decides to end it by saying  “$@k off”, and goes back inside the firehouse. The captain brings departmental charges against the lieutenant for insubordination.  The fire chief backs the captain and issues the lieutenant a written reprimand.

In your opinion, does the lieutenant have any recourse?

Answer: That is a great question and one that goes beyond just a dispute between a captain and a lieutenant. It shows the kinds of tension that can exist when supervisors are in the same bargaining unit as subordinates – something that is very common in the fire service. Keep in mind this is only an issue in the public sector because in the private sector supervisory personnel are excluded from the bargaining unit by the National Labor Relations Act.

There are several issues within the fact pattern that we need to elaborate on:

1. The fact that the captain even brought the union meeting discussion up in a workplace context where he is in a supervisory role may be unfair labor practice and possibly a 1^st Amendment violation. There might be a question about whether he deliberately stepped outside of his role as a supervisor by asking the lieutenant to step outside the fire station – something I would have argued in defense of the insubordination charges. However, the fact that the captain then preferred charges and that the fire chief supported him would indicate that despite the request to “step outside” the fire station,  the captain was acting in his supervisory role…  as an agent of management. That means he (and the department) were infringing on a concerted activity and infringing on an exercise of the lieutenant’s 1^st Amendment rights. The lieutenant has every right to engage in union discussions at union meetings without being subject to retribution by his employer and/or supervisors.
2. The Lieutenant may have been insubordinate to the captain but the issue was over a protected activity – which the captain was illegally bringing up. It was the captain who instigated the discussion and in some ways provoked the response. In addition, the punishment is essentially management punishing a member over a concerted/protected activity – which is an unfair labor practice. An appropriate remedy for the unfair labor practice would be to remove the discipline imposed on the lieutenant.
3. The IAFF Constitution and most, if not all, IAFF Local By-Laws or Constitutions contain a mechanism for members to charge other members with misconduct, including conduct unbecoming an IAFF member.  Abuse of supervisory status to retaliate against a fellow union member for purely internal union free speech will likely be deemed misconduct, and could lead to disciplinary penalties against the Captain, up to and including expulsion.

Many states prohibit supervisory personnel from being in the same bargaining unit as subordinates, and at its surface a case like this certainly seems to highlight the kind of tension that can occur. However, states that draw a line between supervisors and subordinates allow officers of differing ranks to be in the same bargaining unit, and this case involves two officers of differing ranks. It would seem, therefore, that simply grouping members into two groups, firefighters and officers, would not have solved the problem.

There is a long historical tradition in the IAFF and fire departments of officers and firefighters standing together in fraternal support. This is long recognized by state laws that permit these traditional allegiances in the organization of fire service bargaining units.  To the extent that there are individual instances of conflict between union members like the one identified here, that would seem to be best addressed through the normal grievance procedure (to the extent discipline is grievable) and, just as importantly, by internal union disciplinary intervention.

So to answer your question, the possible avenues of recourse are (a) grievance (b) unfair labor practice charge (c) union charges and (d) Federal court suit for 1^st Amendment violation, with (a) and (c) being my recommended course of action.