Unfair Labor Practices (ULPs) Developed by: Melissa Baumann – FSC Sec/Treas and John Obst - NFFE VP Definitions Labor Practice – a violation of the federal labor relations statute determined by a judge or the Authority. Unfair Labor Practice Charge – an allegation that a Party violated the labor relations statute. Unfair Labor Practice Complaint – after investigation of a ULP Charge, if there is merit to the allegation, and the Charge cannot be resolved, the FLRA General Counsel will issue a Complaint, which will go to a hearing for a decision. Unfair General Unfair Labor Practice Charges, 5 U.S. C. Section 7116 Who can commit an Unfair Labor Practice? The Union? The Agency? General ULP Charges Against an Agency: (a)(1) interfere, restrain, coerce (e.g., threatening statements, conduct, failure to recognize union) (a)(2) discrimination related to union or antiunion activity (a)(3) unlawful assistance to a union (favoring one union over another) (a)(4) discrimination related to participating in FRLA activities General ULP Charges Against an Agency (cont.): (a)(5) bad faith bargaining bypass (e.g., dealing directly with employees) refusal to recognize union failure to maintain status quo during an election in which a Union or Unions are trying to represent employees unilateral change without providing the Union an opportunity to bargain repudiation of an agreement General ULP Charges Against an Agency (cont.): (a)(6) refusal to cooperate with FSIP refusal to comply with a FSIP decision (a)(7) enforce a rule or regulation which is in conflict with an existing negotiated agreement (a)(8) failure to go to arbitration or comply with an arbitrator’s decision failure to process dues allotments or revocations (1187 or 1188) failure to notify or prevent the Union from attending a formal discussion General ULP Charges Against an Agency (cont.): (a)(8) failure to allow the union to be present at an investigatory interview if the employee requests it failure to provide official time for collective bargaining agreement negotiations or FLRA procedures (see 7131(c)) General ULP Charges Against the Union: (b)(1) (b)(2) (b)(3) (b)(4) (b)(5) interfere, restrain or coerce cause an agency to discriminate against an employee discrimination for purposes of hindering work activity discrimination based on membership in the Union bad faith bargaining General ULP Charges Against the Union: cont: (b)(6) refusal to cooperate with the FSIP (b)(7) strike, work stoppage, slowdown, or picketing which interferes with performance of work (b)(8) failure to arbitrate or comply with an arbitrator’s decision breach of duty of fair representation (of bargaining unit employees) deny membership in the Union to qualified employees Who can file a ULP Charge? "Any person may charge an activity, agency or labor organization with having engaged in, engaging in, any unfair labor practice prohibited under 5 U.S.C. 7116." 5 CFR § 2421.2 says: 'Person' is defined as “an individual, labor organization, or agency." When the Local is considering filing an ULP Charge. The decision to file a Charge of an ULP should be made jointly by the Local officers and stewards, not just an individual officer/steward. Follow the Master Agreement! (Article 12) Give management a written prenotification, indicating what the issue is, what the Union will allege as violations, and who management should contact to resolve the issue. After serving the written prenotifcation, the Local may then file an ULP Charge with FLRA. Master Agreement Article 12 - Prenotification of ULP Charge 1. The Parties agree that prior to filing an Unfair Labor Practice (ULP) Charge, the charging Party will serve written notice of the alleged ULP Charge on the other Party. The charging Party may file a ULP any time after providing the prenotification. Master Agreement Article 12 - Prenotification for ULP Charge 2. If the charged Party requests the opportunity to discuss the issue(s), the Parties will begin discussions as soon as possible but no later than 14 days, unless more time is mutually agreed to. The Parties are encouraged to resolve the issue in the prenotification stage. Master Agreement Article 12 - Prenotification for ULP Charge 3. The Parties will have full authority to mutually agree to any procedures necessary for resolution. 4. Amendment of the ULP Charges on the same issue will not necessitate a new prenotification of said Charges. However, the Parties are encouraged to discuss and try to resolve the issues(s) that gave rise to the amendment. Master Agreement Article 12 - Prenotification for ULP Charge 5. Neither Party has the authority to waive or extend the 6-month statutory filing requirement. 6. If a ULP charge is filed with the FLRA, the charging Party may request the FLRA to allow the Parties additional time to attempt resolution before proceeding. Paperwork for ULP Charge Fill out FLRA Form 22: Charge Against an Agency Describe what happened, when, who did it. Include a statement that you provided management a prenotification of filing the Charge in accord with the Master Agreement. Include supporting documentation as “Additional Materials” with a summary sheet describing the documents. This should be clearly identified as not being part of the Charge. For example: copy of e-mail when original resolution request was sent; the original request; any responses from management; notes from meetings, e-mails, etc. in which the resolution of the request are discussed. Paperwork for ULP Charge Sign certification of service in Box 8 on the Form. Send Form and Additional Materials to FLRA. Send copy of the Form to management official who you listed on top of FLRA Form. Wait. FLRA Form 22 Form 22 cont. When FLRA calls Be factual. Do not speak poorly of management. Stress the efforts you have made to resolve the request. Be cooperative with FLRA and provide any additional information they need in a timely manner. FLRA Role Investigate the Charge. Decide if there is merit to the Charge. Work to settle the Charge, and get information from Management. Issue Complaint or dismissal. If the FLRA issues a Complaint, the FLRA will serve as the “prosecutor” in taking the ULP Complaint to a hearing. ULP or Grievance? You must choose your “forum.” ULPs are filed alleging violations of the labor statute. While grievances deal with contract violations, most contracts allow grievances of statutory violations. But you can’t file a grievance and ULP that are the same(7116(d)). If you do, whichever is filed second is barred. Other appeals/complaints: 7116(d) prohibits filing ULPs when the issue can be properly appealed under another statutory process. Grievance/ULP bars: Example 1: Employee is suspended for 1 day for misconduct on January 6. Employee files a grievance on January 10 claiming retaliation for filing a prior grievance. Employee files ULP on January 20 claiming retaliation for filing the same prior grievance. The ULP is barred: same aggrieved party, same facts, same theory (retaliation). Grievance/ULP bars: Example 2: Employee suspended for 15 days for misconduct. Employee files ULP claiming retaliation for filing prior grievance. Is the ULP Charge a valid filing? Grievance/ULP bars: Example 2: Employee suspended for 15 days for misconduct. Employee files ULP claiming retaliation for filing prior grievance. Is the ULP charge a valid filing? ULP is barred because there is a statutory appeal process. (A 15 day suspension can be appealed to the MSPB. MSPB can decide if retaliation was the reason for the suspension. It may throw out the suspension, or reduce it.) ULP bars - - wrong forum Matters resolvable before the MSPB may not be processed as ULPs. Employees appeal to the MSPB, not Unions. ULPs may be raised as prohibited personnel practices in defense against agency adverse actions before the MSPB (5USC 2302(b)(9). ULP bars Example 3: Employee receives a proposed 15 day suspension. Employee files a ULP claiming retaliation and intimidation for Union activity. Is the ULP barred? ULP bars Example 3: Employee receives a proposed 15 day suspension. Employee files a ULP claiming retaliation and intimidation for Union activity. Is the ULP barred? No. A proposed suspension is not appealable to the MSPB. If the suspension is enacted, it is appealable and the ULP is barred. The Four Most Common Reasons ULPs are Dismissed: Timeliness; Lack of Evidence; Lack of Knowledge of the Law; The Wrong Forum. Timeliness Complaints will not be issued on Charges filed more than 6 months after the events giving rise to the Charge. Exception: Prevented from filing because of failure of agency to perform duty owed or because of concealment. Hint: File immediately, amend as necessary, write broad language in the body of the Charge. Lack of Evidence Burden on charging party to produce witnesses, documents, facts to support the Charge. Hint: Treat the investigation and evidence as your responsibility, not just the FLRA’s. Lack of Knowledge of the Law Must be able to argue why the Charge is a violation of law. Know the elements of a violation. Hint: Training, self-study, network, get advice and help. The Wrong Forum Practice may be unfair, but not an unfair labor practice. Don’t file ULP when a grievance is in order. Pick the right complaint venue: for example, you can’t raise EEO issues in the ULP forum. Hint: Training, self-study, get advice and help on the type of complaint to file. Remedies to ULPs Stop order and posting. Status quo ante. Make whole order. Bargaining order. Stop order and posting. The FLRA will order the agency to “cease and desist” the violation of law. Notices of the violation must be signed by the head of the agency or field unit. Notices will be posted for at least 60 days in all places where employee notices are usually posted. Other steps may be ordered. Status quo ante “The same as before” the violation. The FLRA orders the agency to return things to the way there were before the improper change. For example, personnel policies can be ordered to be reinstated; reassigned or moved employees can be “restored.” Make whole order. Right the wrong. For example, back pay, retroactive promotion, overtime pay, interest on lost compensation, attorney fees (for Union attorneys). Bargaining order. If it was found that the agency illegally refused to bargain, the FLRA will order such bargaining to proceed. A Remedy you will NOT get: Discipline of a supervisor or manager who was responsible for the violation of the labor statute. ULPs are filed against the agency, not individuals, and there is no provision in the law for the FLRA to order discipline. Note: only the MSPB can order an agency to discipline an employee (which includes supervisors) and usually such discipline results from a complaint to the Office of Special Counsel. If you are “green” and need help on ULPs: Self study (e.g.., FLRA website, Broida: A Guide to FLRA Law & Practice); More training; Talk to other Local officials; Contact your FSC VP; Get help from a NFFE Business Representative; Talk to an FLRA field attorney. But remember, “shopping” for the answer you want is not a good idea.