Information Requests and ULPs

Report
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.

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