The Equality Rule
Under the National Labor Relations Act (NLRA), union stewards are equal to management when they are acting in their representational capacity. Representational capacity means when a union steward argues a contract matter, attempts to resolve a problem, investigates a complaint, request information, presents a grievance, disputes a decision affecting the bargaining unit, or leads a union protest. (Schwartz, The Legal Rights of Shop Stewards, 6th edition, 26)
Following are several National Labor Relations Board and arbitration rulings on the Equality Rule:
“Some profanity and even defiance must be tolerated during confrontations over contractual rights.”
Tillford Contractors, 317 NLRB 68, 69 (1995)
“It would be unrealistic not to expect that a union steward will, whether in a speech or a newsletter, occasionally express strong disagreement with the company and its officers and do so in vivid and unflattering terms. Being at the forward edge of encounters with management the shop steward becomes particularly vulnerable in the area of discipline …”
“If union stewards are to have the freedom to discharge their responsibilities in an adversarial collective bargaining system they must not be muzzled into quiet complacency by the threat of discipline at the hands of their employer.”
Burns Meats Limited and Canadian Food and Allied Workers. Local P-139 (1980)
“As distasteful as the words he used may be, the fact remains that he [steward] was not in the status of an employee when he called the division manager a fool and liar. At that time, the employer and employee relationship did not exist. Rather the relationship was between a Company and Union representative, the matter under consideration being a grievance filed by the employees whom the grievant represented in his official capacity as a Union Steward. They stood as equals when negotiating the grievance.”
Owens-Illinois. Inc, 73 LA 663, 668 (1979)
“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.”
Hawaiian Hauling Service, Ltd, 219 NLRB 765, 766 footnote 6 (1975)
“…a Union representative, in his official capacity interacting with his management counterpart during Grievance handling, has certain latitude to engage in conduct which might, in other circumstances, be arguably considered disrespectful or even insubordinate. While expressly declining to endorse profanity or contemptuous demeanor, Arbitrator Solomon pointed out that management may not justifiably discipline a Union representative simply because he “is not amenable, or ‘stands up’ for the rights of Union employees, unless his defiance results in willful disobedience or disregard for rules and regulations, or creates such a disruptive influence that the shop moral is substantially adversely affected.”
Montana Rail Link, Inc. (1994) Arbitrator Eischen citing Love Brothers, 45 LA 751, 756 (1965)
Exceptions to the above include extreme profanity, racial epithets, physical threats, and blocking or touching a supervisor.
Charles Myers & Co., 190 NLRB 448, 449 (1971)
Shop stewards should note that once they are no longer acting in their representational capacities, the Equality Rule no longer applies. They return to being employees.
A steward cannot be warned or punished for filing a grievance – even if a case lacks merit or is petty or “offensive.” A steward may also not be threatened for encouraging other employees to file. Managers are prohibited from engaging in other retaliatory conduct such as:
- poor evaluations
- burdensome work schedules
- transfers to other departments
Veiled threats can be just as coercive as direct threats. It is unlawful to tell a steward, “If you don’t like it around here, why don’t you get another job?” because it suggests that employment and union activity are not compatible. (Schwartz, The Legal Rights of Shop Stewards, 6th edition, 26)
A manager may not hold a steward to a higher standard than other employees. A steward may not be disciplined for not knowing a rule because “of all people, you should know it.” Being held to a higher standard is unlawful.
A steward cannot be given a harsher punishment for the same offense committed by other employees. However, an employer an impose an unequal penalty on a steward or officer if the contract requires the steward/officer to take affirmative steps such as ordering employees to return to work.
Indiana & Michigan Electric Co., 273 NLRB, 1540-1542 (1985)
(Schwartz, The Legal Rights of Shop Stewards, 6th edition, 26)
An employee has the right to have a shop steward present when the employee “reasonably believes” s/he is going through – or is about to go through – an investigatory interview. These are called Weingarten Rights. The results of the investigatory interview may be used to issue discipline against the employee. The employee must request that his/her shop steward be present.
When a steward is called to the investigatory meeting, s/he:
- must be allowed to take the employee aside for a pre-interview conference.
- has the right to speak during the interview; however, does not have the right to bargain over the purpose of the meeting.
- may ask for clarification of a question.
- may counsel the employee on how to answer a question.
- may provide supplementary information to the supervisor.
- may call for a caucus to speak with the employee in private, outside of the room.