The Executive Board of UE Local 1776 was discussing a problem. One of the members, Jason, was going to be disciplined for harassing another member, a woman.
Roberto, the Chief Steward, was making the report, "After completing my investigation, it's clear that he was doing this. For the last month Jason has been coming up to her and saying some really nasty stuff. They used to go out and then they broke up. She kept telling him to leave her alone. Even Timmy, the Steward told Jason to back off." "So he's going to get what he deserves," said Rachel. "Hold on," said Mike. "Don't we have to defend him no matter what he's done?"
This UE Steward is about what Union leaders must do when a Union member commits acts of harassment or violence against another union member. Verbal or physical, these acts could be sexual harassment, racial harassment, or just plain harassment.
We as Union leaders may have to deal with and educate members who may be less than perfect people. Unfortunately we need to learn how to deal with members who do not behave as Union brothers or sisters. We could call this "Union members behaving badly."
We need to know what our legal and moral obligations as Union leaders are in these situations.
We know what to do when it is a member of management who engages in racial or sexual harassment. A grievance is filed and, if necessary, charges with the appropriate government commission against discrimination are filed.
It is a more difficult question when the situation is one of a Union member harassing another Union member.
It becomes more difficult because many of us were brought up in the Union movement feeling that it is wrong for the Union to "turn in" another member to management.
It is difficult because we instinctively react badly to the idea of "management" being the ones who can "discipline" workers, like we are children.
It is difficult because we are taught that our role is to defend workers from management's discipline.
We also know that we need unity among the members in order to fight the employer. If one section of the membership feels the Union won't protect them, even from other workers, then our unity is in danger. If women members feel the Union won't defend them from some men who are harassing them, then unity is in danger. If African American or Latino members feel the Union won't defend them from a white member who is harassing them, then our unity is in danger. We also know that it is not the members who are on the receiving end of harassment who are endangering the unity, it is the harassers who are endangering the unity.
What is the law?
The law that covers harassment and discrimination is Title 7 of the Civil Rights Act of 1964. Here is how the Equal Employment Opportunity Commission defines racial harassment:
Harassment on the basis of race and/or color violates Title VII. Ethnic slurs, racial "jokes," offensive or derogatory comments, or other verbal or physical conduct based on an individual's race/color constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the individual's work performance.
Here is how the EEOC defines sexual harassment:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.
The EEOC also adds this:
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- The harasser's conduct must be unwelcome.
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop.
Who Must Enforce the Law?
It is the responsibility of the employer to provide a safe and healthy work environment. This means the employer is legally responsible to stop all forms of racial and sexual harassment. They are responsible under Title 7 of the Civil Rights Act of 1964 and also under any applicable State laws against discrimination. OSHA, the Occupational Safety and Health Act also demands employers provide a safe working environment which includes protection from verbal or physical harassment.
The Union's Responsibility Under the Duty of Fair Representation
Setting Up a Union Committee to Investigate and Educate
The Union may want to set up a special committee where members can report instances of harassment (hopefully all committed by management). This committee will have the responsibility to investigate harassment complaints and to help educate members on why harassment is wrong.
Why a special committee? Some locals have done this because they weren't sure that some members would feel right in approaching their stewards. In many cases people want to be assured that what they say will be held confidential. A committee should be representative of the workforce: men, women, Black, white etc.
The committee can take complaints and investigate the matter and then make recommendations to the Union leadership.
The committee can also lay down the law in cases where it is clear that a Union member is harassing another member. They can explain to the member why what they are doing is wrong, and why they can be disciplined for doing it, and that the Union cannot condone or tolerate this kind of behavior.
When the committee is conducting its investigation it must be sensitive to the feelings of the victim. Victims often don't want all the details of what happened bandied about the workplace, or they don't want to be made to endlessly repeat what happened before lots of people. The committee must treat details as confidential and the victim with respect. Even in cases where the harassment is man to man with no other factors, the target of harassment doesn't want to be endlessly paraded around as being weak and a victim.
Throughout the years a legal principle has been developed by the National Labor Relations Board, and most State Labor Boards called "the duty of fair representation." This legal principle quite simply states that a Union must represent all workers equally and without prejudice.
A Union cannot fail to represent or improperly represent a worker due to the worker's age, race, creed, nationality, sex, religion, political beliefs, union status or personality. If a union fails to represent a worker due to prejudice, or hostility, the union can be sued.
The idea of failure to represent includes failing to properly investigate a grievance, process a grievance, or in some cases, even to arbitrate a grievance.
There is no obligation to process a "non grievance" all the way to the final step of the grievance procedure. If the committee decides not to process a grievance make sure the investigation is complete and the facts are in order.
There is no obligation to take every case to arbitration or even conduct a vote on every grievance. What is important is that the issue was debated and dealt with on its merits.
DFR and Member to Member Harassment
When a member comes to the Union to complain about another member, then the Union has an obligation to do something.
First of all, because we are opposed to harassment of any kind, especially racial or sexual harassment, and we believe in equality and unity.
Second: The employer has an obligation by law to provide a safe and healthy workplace. The law says that this obligation includes providing a workplace free from racial or sexual harassment and free from the fear of violence. The employer has the obligation to enforce rules and to keep the workplace free from intimidation and harassment. They have an obligation to make sure everyone knows that racial and sexual harassment are illegal and won't be tolerated. They also have an obligation to provide education so that all workers know what constitutes harassment.
The Union has an obligation to represent all the workers. If the employer is failing to abide by OSHA regulations we file a grievance, to make them obey the law. We sometimes have to do this even if some workers don't want to obey the law. How often do we have the case where the boss lets workers remove safety protections so they can work faster, even if they endanger themselves? We have to insist on the safety equipment being in place, sometimes to protect the workers from themselves.
So legally, if a worker comes to us with a complaint of sexual, racial or other kind of harassment, then our obligation (beside the Union obligation to help a member) is to make the employer live up to their responsibilities under the law, to provide a safe workplace.
So What About UE Local 1776?
In this situation the Union has already started doing the right thing. The Union Steward tried to speak to Jason about his behavior and to get him to stop. This is the Union defending a member who is being harassed. The Union should conduct an investigation to make sure he is guilty of what he is being charged with. If based upon this investigation it is clear (as it seems to be) that Jason was harassing the woman, then the Union does not have to automatically file a grievance. If Jason demands his right to file a grievance the Union should file step one, but, in this case, the Union is under no obligation to proceed further.
The next step will be deciding if the punishment the employer gives Jason is fair. This will depend upon a lot of things. Was everybody aware of the employer's policy on harassment? What is Jason's work record and how senior an employee is he? Jason was told repeatedly by the woman to stop. He was told by the Union to stop. This will count against him. In this situation it is not the responsibility of the Union to try to eliminate any and all discipline for Jason, just to make sure it is fair and just. Hopefully being disciplined will make Jason into a better Union member.