CPL33 2012 NE Regional Caucus: Working with the FLRA Regional Office First, let’s talk about what a ULP is, and what it ain’t. 5 U.S.C. 7116 defines unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency— (1)to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; 2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment; (3) to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status; (4) to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter; (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; (6) to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter; (7) to enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed; or (8) to otherwise fail or refuse to comply with any provision of this chapter. Examples of common ULP’s: FAILURE OR REFUSAL TO BARGAIN o Outright refusal to bargain a mandatory subject o Failure or refusal to bargain concerning “impact and implementation” of a management action o Failure or refusal to provide requested information that is “relevant and necessary” o Failure to conduct bargaining in “good faith” o Patent breach of a contract o Refusal to comply with an order of the FSIP o Bypassing the union to bargain directly with employees Examples of common ULP’s: INTERFERENCE, RESTRAINT OR COERCION OF EMPLOYEES IN CONNECTION WITH THE EXERCISE OF A PROTECTED RIGHT o This is a “catch all”, i.e. all ULPs constitute interference, etc. o Statements made by managers to employees that would tend to have a “chilling effect”. o Prohibiting the solicitation of union membership during non-duty time o Prohibiting distribution of union literature in non-work areas during non-duty time (or in work areas if other non-official literature is allowed) o Interrogating or otherwise interfering with potential union witnesses before a hearing or other proceeding o Threatening discipline in connection with investigating or filing a grievance or ULP charge o Attempting to force or coerce union representatives into disclosing statements made to them in confidence by represented employees o Disciplining a union representative for statements or conduct made in connection with representational activity (exception: “flagrant misconduct” o Prohibiting the wearing or display of union insignia, except where doing so would interfere with the accomplishment of the agency’s mission FAILURE OR REFUSAL TO ALLOW UNION REPRESENTATION AT INVESTIGATIVE OR FORMAL DISCUSSIONS - “Weingarten” meetings - Formal Discussion criteria - Kalkines Advisory The ULP Process… 1. Charging party files the charge with the FLRA Regional Office. 2. A field agent of the FLRA Regional Office reviews, investigates the charge. 3. If the charge is not settled or withdrawn, RD decides whether to issue a formal complaint against the Agency. The ULP Process… 4. If a Complaint and Notice of Hearing is issued, the Charged Party files a response either admitting or denying the allegations. 5. If the RD dismisses the charge, charging party may appeal to the Office of General Counsel. The ULP Process… 6. If a Complaint issues, a hearing before an ALJ is scheduled. ALJ hears the case and issues a Recommended Decision and Order. 7. If a hearing is held, the OGC prosecutes. 8. Following the hearing, the ALJ issues Recommended Decision and Order. Also recommended remedy (corrective actions that must be taken by the Agency) The ULP Process… 9. Either party may file exceptions to the ALJ’s decision. FLRA will either uphold, modify, or overturn the ALJ. 10. May appeal final FLRA decision to federal court.