This group says it keeps federal unions accountable to their members

In more than a thousand federal employee complaints filed against their unions, only 1% of those employees prevailed. That is according to research by a group called Americans for Fair Treatment. AFT says it is dedicated to ensuring accountability for federal employee unions. Federal Drive with Tom Temin talked with the group’s special counsel, David Osborne.

Interview Transcript:  

David Osborne Americans for Fair Treatment is a membership organization, so we work with a number of public employees throughout the country, including federal employees. And most of them come to us because they have questions about their union and what the union is required to do in support of them.

Tom Temin All right. Let me ask you this question first, just before we get to the research. And what you found is ordinarily we hear about complaints against agency unfair employment practices, unfair labor practices. But you’re saying that there are complaints about the unions that employees are members of. What are the nature of those types of complaints that they tend to lodge?

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David Osborne Sure. I also happen to be a practicing attorney, and I’ve helped employees litigate some of these claims in state labor boards before the FLRA. It’s very similar. What an employee might allege against their union is that the union has refused to process a grievance and that the grievance has merit to it. I think there’s a lot of traction here when an employee happens to be a nonmember and the union refuses to process the grievance. Another allegation is that the union has threatened an employee because they’ve refused to become a union member. And also there might be a retaliation charge that once the employee files a ULP that the union has threatened them? Employees can also allege that their union has failed to negotiate in good faith with the agency. Often you see an agency making these allegations, but an employee can do the same thing. And another example, if there’s a strike that the union has either proposed or wants to call or participate in or support a strike and the employee doesn’t want to participate or they’re not allowed to strike.

Tom Temin Yeah, that would be more at the state and local level then because federal levels there’s no strike capability statutorily. Correct?

David Osborne Right. And so I’ll give you an example of a ULP charge that was successful against a union with a state charge in Pennsylvania. We litigated it to the hilt and it involved a union that was going into negotiation over pension obligations. And the state entity actually provided several different options to the union. But the union hid those options from the employees when they came to the ratification meeting. This is not uncommon. The union presents basically one option during the ratification meeting and they want to induce ratification. So they presented it as if it was the only option when some of the employees asked the question, Well, what about this other thing we wanted? The union hid that information intentionally. That’s a great example of an unfair labor practice charge against a union. But it’s not the only kind.

Tom Temin All right. Let’s talk about what you found from the Federal Labor Relations Authority. I guess you FOIAed their data on complaints about unions and principally you got data concerning the American Federation of Government Employees, which is the biggest federal union and the National Treasury Employees Union, which I think is the second biggest. What did you ask for? What did the data show that’s going on here?

David Osborne There are some 4000 unfair labor practice charges every year before the FLRA. We weren’t interested in all of those charges. What we were interested in is the exact scenario that we’ve been talking about here, an individual filing a charge against an employee organization or union. So we asked for that data from late 2015. At the time, it was even seven years at the time. So we got data from 2015, in December to 2022 in December, and the data was for charges every year that are brought by an individual against their employee union. What we got was 1200 charges over that span of time. That’s an average of about 173 charges every year. And the overwhelming majority of charges perhaps fitting what you’re talking about. These are the biggest unions were charges filed by individuals against AFGE or the NTEU and AFGE far outstripped NTEU. It was out of the 1211 charges of 935 were filed against AFGE and 108 were filed against NTEU. The other handful were from smaller unions.

Tom Temin We are speaking with David Osborne. He is special counsel at Americans for Fair Treatment. And then you looked at how the FLRA adjudicated those more than a thousand complaints and what happened. What did you find?

David Osborne Most of those charges were pretty quickly dismissed over a majority of them. And another, say, 45% or so were withdrawn by the individual at some point prior to a termination. So they probably engaged at some level with their union. And for reasons we don’t know from the public records, they were withdrawn a very, very small percentage. Fewer than 1% were settled. And fewer than 1% were actually adjudicated all the way to an enforcement action by the LRA.

Tom Temin That seems like a little bit of a statistical anomaly that less than 1% were adjudicated in some manner. Half went out the door before it even got to that point and nearly half were dismissed. What’s going on, do you think?

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David Osborne Well, I think the real story that comes out of this is the systematic difficulty for public employees in litigating these charges. So I’m a lawyer and I’ve helped with some of these, but I’ve had to do it pro-bono because most of the time you’re not going to get any damages out of this if you do get some damages. I will have burned through that in the first hour as an attorney. So what employees are facing in this circumstance is basically going unrepresented against their public employee unions, supposed to be representing them. But the allegation is that they’re not. And the union, of course, has a lot of lawyers. So that’s a difficult scenario for any public employee to really litigate and find success.

Tom Temin On the other hand, you could argue, just to play devil’s advocate here, that a thousand 1100 complaints over seven years, given the number of people that are represented by NTEU and AFGE, that doesn’t seem like people are all that dissatisfied and there’s hundreds and hundreds of thousands of employees. And over seven years, you know, a tiny, tiny percentage lodged something against the union.

David Osborne You also have to imagine the difficulty and even having the bravery to file a charge in the first place. So who knows who even decided against filing a charge, because going against your union is a really big deal. In working with employees, I’ve often had requests that we help them install cameras on their property or on their car. Federal employee unions are not the Teamsters of the 1960s and seventies, but the kind of intimidation that they face and social pressure that they’re going to experience at work is really formidable.

Tom Temin Yeah, I was on a strike in the 1970s and man, when the Teamsters showed up to deliver paper to the newspaper, you better get out of the way because they’ll run right over a picket line. Another AFL CIO union. Right. That’s a, you know, personal experience. One other point I wanted to ask you about. As you mentioned, that in some cases the union fails to represent in a action that the employee needs to bring and that employee’s not a union member. And there’s that little anomaly in the federal space where you get covered by the union bargaining agreement, even though you can opt out of paying the union. I mean, why should the union bother if you don’t even pay your dues?

David Osborne The reason is that the union’s the exclusive representative. So if I’m in an employee workplace, I really don’t have the choice to go it alone. I’m going to be governed by a collective bargaining agreement that was bargained by the union and the employer, basically, without my participation. In fact, under union rules, I’m probably not allowed to ratify that or even ask questions about it. It’s basically foisted on me. So when it comes time to litigate a grievance, I think it’s only fair that the union would have to represent the employee under the rules that it has itself negotiated for that employee.

Tom Temin Got it. And so just to summarize, what’s your best advice for people that feel aggrieved by a union? What should they do short of hiring a lawyer and going broke?

David Osborne Well, there are a couple of options, though. Americans for Fair Treatment, the organization, that which I’m special counsel, can provide a little bit more specialized guidance depending on their situation. But if it comes time to litigate against a union, there is at least one organization that provides free legal representation. It’s called the Fairness Center. It’s a separate organization. But we’ve referred a number of employees over there, and they’ve done some neat work that I don’t think any other public interest law firm has ever done. That’s free legal representation. So they can review your case and figure out if it would be a good one to bring.

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