This story was written by Cathy Highet and originally printed in Labor Notes. Cathy Highet is a board member of the Association for Union Democracy. She practiced labor law for 20 years, representing both unions and members. With Local S6 Officer nominations coming up in September, we felt this story was important to share.
Suppose you run for local union office on a reform slate, and nearly win… but then the incumbent leaders trump up charges against you. You’re sure your only crime is challenging them, but they brand your organizing “dual unionism” or “conduct unbecoming a member.”
They hold a trial, find you guilty, and suspend your membership. Do you have any recourse?
Most unions have an internal discipline process—a way to expel, suspend, or fine members for breaking the union’s rules. Most members have a legal right to due process, and protections against improper discipline, under a 1959 federal law called the Labor-Management Reporting and Disclosure Act.
The LMRDA applies if your local includes any members in the private sector or at the post office. But all members can fight improper discipline by organizing.
GROUNDS AND PUNISHMENTS
What can unions discipline members for? That varies by union. Many list the possible grounds in their constitutions or bylaws. Some can be very vague.1
Typical charges include crossing a picket line, participating in an illegal strike, abusing union office, stealing from the union, trying to decertify the union, or trying to disaffiliate the local union from the international.
Common punishments are reprimands, fines, suspensions from the union, and occasionally permanent expulsion. Expulsion generally does not mean getting fired—most employers are prohibited from firing you for this. (However, many can fire you for failing to pay union dues.)
Your employer might or might not be allowed to conduct its own investigation and discipline you for the same conduct alleged in a union discipline case; it depends on the charges. For example, a union can expel members who try to replace it with a different union, but an employer cannot fire them for that.
PROTECTED ACTIVITIES
The LMRDA prohibits unions from retaliating against members for exercising the rights the law grants them, including free speech and the right to run for office.
Sometimes retaliation is explicit—for example, punishing a member for “slandering a union officer.” However, the LMRDA also prohibits “pretextual” charges—for example, the union claims it disciplined a member for starting a fight, but the member can prove it was really for criticizing the union president.
THE DISCIPLINE PROCESS
The internal discipline process varies by union. Check the constitutions and bylaws of your local, your international, and any regional or industrial council.2
Usually any member can file charges against any other member. The union may do a preliminary review to see whether they met the basic requirements—did they name an appropriate rule, file on time, etc. If not, the union may dismiss the charges.
If it does not dismiss the charge, the union will send a hearing notice to the charged member. The LMRDA entitles you to a “full and fair” hearing, explained below. Then the “trial committee” can dismiss the charges or order some punishment. Often the charged member can appeal to the international.
YOUR RIGHTS IF CHARGED
You may have rights from more than one place—your union, the LMRDA, and other laws.
Collect all the rules that might apply. Each level of your union has a constitution, bylaws, or both, and may have other rules as well.
State or federal laws prohibiting discrimination on race, gender, sexual orientation, or disability may be relevant. Also, before 1957, some states gave union members rights within their unions, and the LMRDA left those protections in place.
Typically the National Labor Relations Board will not intervene unless there’s a clear tie to an employer or an NLRB process.
DUE PROCESS PROTECTIONS
Union members covered by the LMRDA have due process rights, including a “full and fair hearing,” with written notice of the charges beforehand.
The LMRDA entitles you to a “reasonable time” to prepare your defense. The law doesn’t define how long this is (though many union constitutions do) but asks whether you got enough time under the circumstances. Two weeks may be enough, and one week may not, but it depends on the case.
The notice must spell out what you’re accused of—who, what, when, where. It doesn’t have to give every detail, but must tell you enough so you can pull together your side of the story.
Key to a fair hearing is an impartial trial committee. The committee would likely be biased if it included members who were involved in the case or political opponents of the accused. It might also be biased if the person who selected committee members was a political opponent. However, trial committees do not have to be chosen at random like juries.
What happens during the hearing must also be fair, though it doesn’t have to be as formal as a court hearing. You must have a chance to put on witnesses and cross-examine the other side’s witnesses.
If the union does not record the hearing or create a transcript, then you have a right to do so. You don’t have a legal right to an attorney, but many union constitutions say you can bring another member to represent you.
FOR MORE HELP…
The Association for Union Democracy has information about your rights and can sometimes provide legal help.
But don’t get too focused on legal remedies—often organizing is your most powerful tool. For instance, if union leaders are imposing unfair discipline, members could use collective tactics like petitions or group confrontations to demand that they back off.
From The Deckplates 