Federal Labor Relations Authority

Successfully Processing Your Unfair Labor Practice Charge 49 th 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 on going 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 ( 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]