Union Corner: Unfair Labor Practices-Part II

Last month, I discussed unfair labor practices that resulted from actions which agencies took against employees. This month, we’ll look at unfair labor practices by labor organizations, how a complainant files an unfair labor practice charge and how the Federal Labor Relations Authority processes them.

• Interfere with, restrain or coerce employees in the exercise of their rights under the law.
• Refuse to consult or negotiate in good faith with an agency.
• Call or participate in a strike.
• Conduct internal union business on duty time.
• Fail to represent employees fairly in a bargaining unit in matters which are within the union’s scope of responsibility as the exclusive representative and over which the employee may not seek representation from another source, such as a private attorney.
• Fail to represent an employee properly.
• Otherwise fail or refuse to comply with any provision of the law.

This short list suggests that unions generally are unlikely to run afoul of the law. Most unions spend a great deal of time and energy attempting to get employees to exercise their rights, defending those who did exercise their rights and engaging agencies in negotiations and bargaining. Very few federal unions call or participate in strikes or need to conduct internal union business, such as the election of officers, on duty time.

Although any person can file a charge of an unfair labor practice, historically 95 percent of charges have been filed by unions against an agency and fewer than 5 percent have been filed by employees against an agency or a union and by management against a union.

The two typical situations in which a ULP charge is brought by an employee against a union are:

• An non-union member feels he or she is being treated differently from union members in the administration of a collective bargaining agreement or other condition of employment.
• An individual employee has a dispute with the agency that adversely affects him or her and feels the union has failed to provide effective represention in that dispute.

The union may not treat a non-union employee differently from its dues-paying members in matters where the non-member has no other choice than the union for representation and over which the union has exclusive control. This is called the duty of fair representation. For example, the union cannot negotiate a liberal alternative work schedule plan for union members and, as a trade-off, allow management to impose a restrictive alternative work schedule plan on non-union employees. A union cannot vigorously enforce the provisions for granting an alternative work schedule for union members, but ignore the requests by non-union employees to obtain the same work schedule.

In ineffective representation cases, the union to be held liable must have engaged in conduct that amounts to more than mere negligence or ineptitude. The union’s conduct must be outside the range of reasonableness and must have constituted a deliberate and unjustified treatment of the complaining employee different from other bargaining unit employees.

The union’s mistakes must rise to the level of being deliberately and unjustifiably arbitrary and constitute bad faith conduct. This standard may remind some readers of the old adage: “You only get what you pay for.” At FDA, the core problem is not so much money, in the form of dues, but the generous contribution of time, talent and effort in the mutual aid and protection of fellow employees.

• Name, address and telephone number of the person making the charge.
• Name, address and other information about the organization against whom the charge is made.
• A clear and concise statement of facts constituting the alleged unfair practice, the provisions of the law alleged to have been violated and the date and place of occurrence of the acts.
• A statement of other procedures invoked involving the charge.
• Supporting evidence and documents.

The charge must be filed within six months of the precipitating conduct or events with the appropriate regional director of the Federal Labor Relations Authority. The charge should inform the organization of the general nature of the alleged violation.

After investigation by the Federal Labor Relations Authority and if the charge is found to have merit, the regional director attempts to reach a voluntary settlement to remedy the situation. In the past decade, 89 percent of all charges filed were either withdrawn, dismissed or settled at this stage.

If the settlement attempt fails, a complaint is issued. Failure to answer the complaint or respond to any allegation constitutes an admission, absent a showing of good cause to the contrary. If the facts of the case are in dispute, it is heard by an administrative law judge who issues a decision that may be reviewed by the authority. An average of 88 percent of all cases for which the Authority issued a complaint ended in settlement without a hearing.

• Cease and desist from any such unfair labor practice.
• Renegotiate a collective bargaining agreement and require that the agreement be given retroactive effect.
• Reinstate an employee with back pay, allowances and differentials.
• Take such action as will carry out the purposes of the statute.

Examples of actions that the authority has ordered as remedies include:

• Retroactive promotions and awards.
• Reimbursement for losses not covered by back pay, such as travel expenses or late charges for delayed car and mortgage payments.
• Recision of disciplinary actions.
• Posting of notices explaining violations.
• Reinstatement of previous practices.
• Payment of attorney’s fees.

Enforcement of the authority’s orders is obtained through the U.S. circuit courts of appeals.

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