Download Successfully Processing Your Unfair Labor Practice Charge

Federal Labor Relations Authority
Successfully Processing Your Unfair Labor
Practice Charge
49th NFFE National Convention
October 2, 2012
Portland, Oregon
Peter A. Sutton, Regional Director
FLRA Chicago Region
Choosing the right path…
A bargaining unit employee is called into a meeting by
a manager and is questioned in connection with an ongoing Agency investigation into time-and-attendance
reporting irregularities. The employee is worried that
he might be a target of the investigation, but he
doesn’t remember to ask for a NFFE representative
and isn’t told by the manager that he can have
representation. The employee is questioned for 45
minutes without a NFFE representative.
Violation of the CBA? Violation of the Statute?
Violation of both the CBA and the Statute?
Unfair Labor Practice Charges
 Alleged violation of Section 7116(a) or (b) of
Federal Service Labor-Management
Relations Statute.
 Know the Law.
 Statutory violations can resolved under ULP
and the grievance-arbitration procedures.
 Contractual violations are resolved under
the grievance-arbitration procedures.
FLRA’s On-line Materials
 ULP Case Law Outline
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(www.flra.gov/webfm_send/622).
Searchable FLRA Case Decisions
(www.flra.gov/authority_decisions).
Web-based Training
(www.flra.gov/FLRA_Training_ADR).
OGC Manuals
(www.flra.gov/Manuals_OG).
OGC Guidances
(www.flra.gov/OGC_guide_list).
ULP Filing Requirements
 May be filed by any person by mail, fax, in
person or e-filing (www.flra.gov/eFiling).
 Filed within 6-months of the alleged ULP.
 Not previously raised as a grievance.
 Comply with any contractual pre-filing
requirements.
 Provide supporting evidence and witnesses.
Is ULP Charge Timely?
 Management begins video taping unit employees in
internal affairs investigations in March 2010.
 Management fails to notify union of this change at
national level as required by the CBA .
 Union, at all levels, only learns of change in June 2012
and files a ULP charge on September 20, 2012.
 Is charge timely? How long does the Union have to
file after it discovers the action?
Dep’t of the Treasury, U.S. Customs Serv., El Paso, Tex., 55 FLRA
43 (1998).
Is Charge Barred by Grievance?
 On 9/10/12, Agency suspends NFFE Steward for 5-
days for negligent operation of forklift.
 On 9/12/12,NFFE Steward files grievance under
CBA alleging suspension violates CBA’s just cause
provision.
 On 9/24/12, NFFE Local President files ULP charge
alleging 5-day suspension was result of union
activity.
 Can FLRA process the ULP charge?
AFGE, Nat'l Council of EEOC Locals No. 216, 49 FLRA 906 (1994).
Regional Office Investigation
 Impartial and neutral.
 Obtain all relevant evidence necessary
to decide the merits of the charge.
 All parties are afforded a reasonable
opportunity to present their evidence
and views to the Regional Director.
 Witnesses are entitled to official time
when interviewed by the Region.
Our investigative standards
 We obtain the best possible evidence.
 We investigate and resolve charges in a
timely and effective manner.
 We treat all participants in the process
fairly and professionally and we explain
our investigative methods to the
participants.
Effective ULP Investigations
 Goal is to resolve case in 120 days.
 Be prepared to go forward with your
evidence.
 Know the necessary factual elements .
 Organize your evidence and have
witnesses available.
 Present the full story.
 Consider what would resolve case.
Disposition of ULP Charges
 ULP charges may be withdrawn or resolved by the
parties at anytime during the process.
 After investigation, the Regional Director decides
based on evidence and law whether charge has
merit.
 If Regional Director finds merit to charge, Region will
issue a complaint absent settlement.
 If Regional Director finds no basis to prosecute,
charging party is notified and given option to
withdraw charge or receive dismissal letter with right
of appeal.
Purpose of ULP Remedies
 Attempt to recreate the pre-ULP
conditions.
 Avoid future unfair labor practices.
 Make whole employees who were
adversely affected by the ULP.
 Not punitive in nature.
 Effectuate the purposes of the Statute.
Key Concepts for ULP cases
 Interference test. Frenchburg Job Corps, 49
FLRA 1020.
 Discrimination test. Letterkenny, 35 FLRA
113.
 Flagrant misconduct. Defense Mapping, 17
FLRA 71.
 De minimis. OHA Charleston, 59 FLRA 646.
 Past Practice. SSA, OHA, 60 FLRA 549.
Key Concepts for ULP cases
 Formal Discussion. SSA, OHA, 59 FLRA 875.
 Covered by defense. Customs Miami, 56 FLRA
809.
 Permitted by contract defense. IRS, 47 FLRA
1091.
 Information. IRS Kansas City, 50 FLRA 661.
 Scope of bargaining. OPM, 51 FLRA 491.
For Further Information
 www.flra.gov
Statute, Regulations, Decisions, OGC Case Law Guide and Manuals,
Contact numbers.
 Peter A. Sutton, Regional Director
FLRA Chicago Regional Office
55 West Monroe, Ste. 1150
Chicago, IL 60603-9729
Office: 312-886-3465, ext. 4022
Fax: 312-886-5977
[email protected]