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:
- 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 1st 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 1st 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.
- 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.
- 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 1st Amendment violation, with (a) and (c) being my recommended course of action.
As to the 1st Amendment claim-the level of protection will depend upon what was being discussed/debated. If the issue was an internal union issue or an employee/employer issue, it may not be a 1st Amendment issue, as the 1st Amendment protects only speech addressing issues of public concern. In a nutshell, matters of public concern is something the general public would be interested in knowing and that might affect the public as well. Examples would be Fd mispending, failure to train, manpower issues, etc. I think the UPL might have difficulty too. Thus, I agree with Curt on options A and C.
Chip
The First Amendment protection implicated here is a bit broader than Freedom of Speech. It gets into the Freedom of Association (the “unwritten” freedom) – and in the public employee context can be stepped on when concerted activities are impacted. That would include things that might appear to be private grievances under the Freedom of Speech line of cases you are referring to… but go to the heart of collective bargaining.
I should have been more clear on that point.
Here is an interesting link on a split of opinion on the issue Chip raises. Apparently some circuits do limit the freedom of association in the way Chip suggests…
http://www.circuitsplits.com/2012/02/freedom-of-speech-and-freedom-of-association-next-of-kin-or-distant-relatives.html
IMHO – they are confusing two entirely different issues – freedom of speech and freedom of association. Particularly in the labor context – it is not the nature of the specific item being discussed (public concern versus private) that should be paramount, it is that the very right to openly discuss and debate ANY issue in a union meeting without being subjected to employer controlled sanctions.
Curt
What about a Lieutenant that’s at a union meeting with his crew and doesn’t like what was said and he gets up and orders his crew out? The crew is allowed to attend the meeting per management, and it is not held at the station.
Thank you Ed
You remind me why I love firefighters so much!!! You can’t make this stuff up!!!!
A couple of points: if attending the union meeting while on duty is in the CBA – it would be a pretty clear grievance. If it is an informal deal – where past chiefs have allowed it, or looked the other way at it – it will be a harder case to make. There is no inherent right to attend a union meeting while on duty.
Besides the possibility of a grievance – the argument can be made that wrongfully denying a union member the ability ot attend a union meeting (assuming it is allowed by the CBA), is an unfair labor practice. In addition, as discussed above, there could be union charges filed against the officer… assuming the LT had no legitimate work related reason to depart the meeting with his crew.
Certainly it would be relevant if the LT took his personnel from the meeting purposefully to influence a vote, or to prevent them from participating in the meeting (as opposed to simply leaving because he was upset).
Great twist to an already difficult subject!!!
No one of rank should be in the Union PERIOD! Firefighters have turned the IAFF from a brotherhood into a labor union such as steelworkers,miners auto workers ect.
No “bosses” are in those unions, so no leaders…umm I mean bosses should have no say in firefighter meetings either.
Unions killed America
you seem angry…the iaff is a labor union formed due to health and safety concerns, yada, yada ect……read your history.. and about the “brotherhood”, you do not need to join the iaff to have it comes from the people who are there who make it what it is..
as for the article, yea the captian needs to get a grip….hopefully it will turn out for the lt..
I am not angry at all, but “Brotherhood” left the fire department around 15-20 years ago . It did however make a brief apperance after 9/11.
The X box generation of IAFF is a bunch of whiners wanting to raise union dues because there was no money left to buy beer for the union meetings. Then they file a grievance because they couldnt wear sideburns or their cap backwards.