Union Corner: Unfair Labor Practices-Part 1

The primary means by which the Federal Service Labor-Man-agement Relations Law is enforced and employee rights protected is by way of unfair labor practice cases. For example, the law says that it is an unfair labor practice for an agency to:

• Interfere with, restrain or coerce employees in the exercise of their rights under the statute.
• Encourage or discourage membership in any labor organization by discrimination in hiring, tenure, promotion or other conditions of employment.
• Discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, petition or has given information or testimony covered by the statute.
• Refuse to consult or negotiate in good faith with a labor organization.
• Otherwise fail or refuse to comply with any provision of the law.

These provisions dovetail with another section of the law, employee rights. In the unfair labor practices context, these include the right to:

• Form, join or assist any labor organization freely and without fear of penalty or reprisal.
• Act for a labor organization in the capacity of a representative and, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch, the Congress or other appropriate authorities.
• Engage in collective bargaining with respect to conditions of employment through representatives chosen by the employees.

Any person can charge an agency or union with an unfair labor practice. The charge sets into motion the Federal Labor Relations Authority’s investigative machinery. If the charge has merit, the regional director attempts to reach a voluntary settlement to remedy the situation.

If the settlement attempt fails, the authority issues a complaint. If the facts of the case are in dispute, an administrative law judge hears the case and issues a decision that may be reviewed by the FLRA. The authority has broad powers to remedy violations through such means as retroactive bargaining orders, back pay and promotions.

Illustrations of protected activities that an agency is precluded from interfering with include:

• Joining a union.
• Assisting a labor organization as an officer, steward, representative to a congressional conferences or a member or a labor-management committee.
• Participating in formal meetings by commenting, speaking and making statements.
• Soliciting union members.
• Distributing union literature.
• Attending union meetings.
• Participating in union demonstrations.
• Participating in collective bargaining including contract negotiations and changes in working conditions.
• Assisting other employees in investigating their grievances, presenting their grievances and being a witness at a grievance hearing.
• Filing a grievance or an unfair labor practice charge.
• Complaining verbally to management as a union representative.
• Writing a union letter to the editor critical of managers and management policy.
• Using intemperate, abusive or insulting language if the rhetoric is believed to be an effective means to make a point about legitimate labor relations problems, called “robust debate.”
• Requesting representation during investigations.
• Having sufficient time to secure a representative in an investigation.
• Participating in an investigation as a representative and taking an active part in the defense of an employee.

Unfair labor practices can be characterized as conduct on the part of an agency and its managers that has a coercive or chilling effect on employees’ free exercise of their statutory rights. Words alone in an appropriate setting can be unfair labor practices.

The manager’s intent isn’t the controlling issue. What does control is whether the statement in context would be perceived as a threat, penalty or promise of a benefit. Does the statement tend to coerce or intimidate or manifest a management determination, which would be unsafe for the employee to thwart?

Ambiguous statements can be transformed into threats. When a manager is made aware that a remark is perceived as threatening and fails to dispel the threatening inference drawn and noted by the listener, then the statement has been transformed. Examples of verbal unfair labor practices include management statements that:

• Although they supported the right of employees to join a labor organization, they did not want to see collective bargaining because it would put managers and employees “at opposite sides of the table.”
• Employees who were to testify in a Federal Labor Relations Authority hearing would be watched closely by supervisors.
• An employee who was investigating a grievance he was considering filing would be disciplined.
• A supervisor would not select any union representative for a position that a union representative was seeking priority consideration for as a remedy to a grievance not yet filed.
• An employee had “hung himself” by going to the union.
• An employee could no longer be trusted because he had filed an unfair labor practice charge.
• A union representative had to suffer the consequences for taking too much time off for official union business.
• A performance improvement plan would be used to correct performance deficiencies that the supervisor attributed to union activities.
• A union representative would be getting better evaluations if he were not constantly questioning management’s actions.
• Things would go more smoothly if matters could be handled through the chain of command. There was no implication that the alternative of going through the union was not favored.

Other examples include a second-line supervisor’s derogatory statement to and about a union representative’s job performance for the union and a manager’s inquiry about an employee’s reasons for filing a grievance with the implication that the grievance would only hurt his career.

Similarly, examples of management actions that might have a chilling effect on employees or be considered a reprisal for an exercise of employee rights include:

• Attendance by managers at union organization meetings for employees. Since the employees were aware of their supervisors’ presence, it could be inferred that the employees might have felt inhibited and might have been reluctant to participate in the meeting and ask questions.
• A supervisor creating the impression in a union representative’s mind that his or her work and conduct were under greater surveillance because of he or she was filing an unfair labor practice charge.
• A supervisor’s unnecessary presence in a union office while representation functions were being conducted.
• Inclusion in a performance appraisal of a statement critical of the agency raised through union channels.
• Placing a copy of an unfair labor practice charge in an employee’s personnel file.
• Performance counseling of an employee because the employee became a union steward and engaged in protected activities.
• A supervisor’s comment on a performance appraisal that a union representative spent too much time on union business.
• Lowering of a performance appraisal because of an individual’s union activities.
• Determination that employee’s protected activities rendered him unsuitable for transfer to a new or different position.
• Withholding of an award because of the time spent on union activities.
• Termination of a union representative under the guise of abuse of leave for taking “too much” time to pursue union business.

Robert Young, M.D., Ph.D., is interim president of the local NTEU chapter.