5 U.S.C. 7103(a)(9)

Report
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.

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