Handling ULP Investigations: An Agency Perspective

Unfair labor practice (ULP) charges are generally filed by unions against agencies. Here is practical advice telling you what you need to know when a ULP is filed.

Part 1- Understanding and Dealing with ULP Charges.

The latest information on Federal Labor Relations Authority (FLRA)’s website states that more than 6000 unfair labor practice (ULP) allegations were filed in 2001. On a side note, has anyone noticed how poorly the FLRA is maintaining its website lately? Shame on you, webmaster. You have not even put up your annual reports to Congress. many links connect to pages “under construction”. Does your appropriation committee know what its getting for its money? Rant over, back to business.

General Counsel Operations

It’s important to understand where the Office of General Counsel (GC) fits within the FLRA. The GC is independently appointed by the President with Senate confirmation and resides in FLRA space, sits on FLRA furniture, gets paid by FLRA but does not report to the members of the FLRA. In other words, the GC is independent. The GC also views its role as public prosecutor. President Clinton’s GC viewed himself as a solver of all problems with all agencies and unions because ostensibly they were too dumb to do so themselves. The current GC claims to see her job as moving a meritorious case to hearing unless the parties resolve it themselves. A more humble and perhaps more statutorily consistent position? You decide.

The GC operates using Regional Attorneys who employ Field Agents and Field Attorneys to work the charges. These folks work for Regional Directors (RDs) who work for the GC. The RDs also process representation cases which go directly to the FLRA. Sounds like performance evaluation time is fun. I wonder who the rating official is or the reviewer for that matter.

What are the Rules?

The GC’s business is addressed in law and regulation. The law addresses the establishment of the GC (5 U.S.C. 7104(f)), what constitutes a ULP (5 U.S.C. 7116) and how the process will work (5 U.S.C. 7118). The GC’s regulations are also worth a careful read.

What’s a Charge?

Simply put, a charge is an allegation that you violated someone’s or a union’s rights under the Federal labor relations law. Technically, any “person” can file a ULP allegation called a “charge”. To do so, one must use the proper form. If you’re a union or individual complaining about the agency, you use a charge against an agency. If you’re an agency or employee upset about the union, you use a charge against a labor organization. A statistically negligible number of the agency charges are filed. Occasionally an employee will file one against a union. Most are filed by unions against agencies. A few are filed by employees against agencies.

The ULP Process

Before we go on, let’s take a quick look at the overall process. Here is a flowchart showing what can happen with a charge. Don’t be fooled, just about every charge is withdrawn or settled or, unfortunately too rarely, dismissed. Few go to hearing, fewer are appealed to the FLRA, fewer still get into court and the Supremes.

After the Charge is Filed

So a charge gets filed, what happens next? If all the blocks on the form are filled out correctly, the respondent (party alleged to have committed the deed) gets a notice (Charge Letter) and an invitation to respond. This is almost always an agency. So what do you do with this letter?

My advice is to start your own fact finding. You may be at a disadvantage in that the GC’s people do not have to share with you anything but the union’s charge form itself. If there’s additional information attached, it’s not going to be released to you. The GC’s regulations require your cooperation, but apparently not their cooperation with your agency. Of course, cooperation is subject to interpretation: both theirs and yours. The GC’s teeth, so to speak, is to require a management official’s sworn statement (A gift from Clinton’s GC, now a union consultant! Who’s surprised?) Conditions surrounding this are limited and the agency has certain rights as well.

This is an Adversary Process

The most important thing to remember is that you are now smack dab in the middle of an adversary proceeding. Anybody who tells you otherwise does not have your interests at heart. If you believe the statement, “I’m a Field Agent/Attorney of the FLRA and I just want to get the matter resolved”, I have a real estate salesman I want you to meet.

My experience is that GC reps for the most part see only union allegations of alleged agency misconduct and are driven by first impressions. They are representing unions virtually 100% of the time against agencies. Frequently, they view cases as if the Knights of Labor were still struggling against the robber barons of the Victorian era. I sometimes think law school labor law classes are a little thick on Samuel Gompers and thin on Jimmy Hoffa.

Fact Finding and Case Analysis

OK. Back to the Charge Letter. Read it carefully? Look at exactly what is alleged. Identify the people involved, dates, times, and placed. Check out every allegation. Advise managers what is going on and get their side of the story.

The nature of the allegation drives the importance of certain facts. Most charges fall into one of four categories:

  • •Failure or refusal to bargain
  • Failure to provide information
  • Anti-union discrimination
  • Denial of representative at a meeting

From the facts you find, you will develop a theory of the case. In Part Two, I will look at case analysis and theory development in more depth. The GC will develop a theory of the case which it will attempt to prove. Count on it. Your job is to rebut that theory. The better you do that the more likely the GC will either press the union to withdraw or encourage settlement. By the way, the concept of a case theory is a very simple thing. Stay tuned.

As always, any opinion stated above is mine and mine alone.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.