Case Theory in an Unfair Labor Practice: Yours and the General Counsel’s

Understanding how an unfair labor practice process and the facts in a case can be the difference between winning or losing a case. Here is some basic information agencies need to know to protect their agency interests in a case.

In Part 1 of this topic, I discussed the nature of the General Counsel’s office of the FLRA (GC), what this office does, and the reality that the General Counsel’s representatives are not neutral.

Let’s make sure to say that again. The GC’s representatives are not neutral. At best, they are driven by their view of the incident the union claims to have occurred. At worst, they have an axe to grind.

Those axes have, in the past, included the “expansion of our understanding of the Statute”. That means that prior GCs have taken on cases, always at the agency’s expense, to expand the Statute’s meaning in case law. Fortunately, the FLRA’s judges and some of the FLRA members have nipped some of that expansion in the bud.

If you think I am kidding, let me relate a true story. At a conference, a speaker from the General Counsel’s office under the Clinton Administration mentioned the GC’s “litigation strategy”. I asked if that document, prepared at public expense, was available for review. I was told it was not available. I asked a follow-up question as to whether the FLRA’s appropriation committee, Republican at the time, knew the GC had a secret litigation strategy which I suggested must be directed at agencies since virtually all of the litigation involved charges against Federal agencies. The speaker did not answer that question. When I was back at my Federal job as a labor relations officer, he called to warn me of the potential problems loose talk such as mine could cause my career. Interesting, Huh?

What is an Issue In A Case and What Is A Theory?

OK, let’s look at how we work an unfair labor practice allegation from the agency’s side. By the time a field agent or attorney catches up with you in a charge letter or in a phone call to follow up, they have developed a theory of the case. In other words, a decision (which you will be told is merely an allegation) has been made that the agency violated the statute and now proof must be found to support that decision (or according to the GC, support or refute the allegation).

A case theory is essentially the answer to a question called the issue. An example of an issue might be “Did the agency violate 5 U.S.C. 7116 (a) (1) and (5) by failing or refusing to invite the union to a meeting between manager X and employee Y on September 20, 2006?”

The resulting theory would be, “the agency violated 5 U.S.C. 7116 (a) (1) and (5) by failing or refusing to invite the union to a meeting between manager X and employee Y on September 20, 2006. At the meeting, manager X discussed the pending grievance of employee Z with employee Y. Since both employees are in the same bargaining unit, management must notify the union and invite it’s presence in accordance with 5 U.S.C. 7114(a)(2)(A).”

Kinds of Issues to be Concerned With

Before you start fact finding, remember that there are three kinds of issues: threshold, primary and remedial. Threshold issues are sometimes called jurisdictional issues. Primary issues are the meat of the case. The issue cited above is a primary issue.

Finally there are remedial issues. These come down to what happens if the primary case is proven. In ULP cases, these range from a posting of the agency’s apology for committing the violation to what is known as a status quo ante remedy in which the situation is returned to the state that existed prior to the violation. While rare, status quo ante remedies are the most difficult to swallow amounting to a vindication for the union of all the wrongdoing they alleged.

Threshold Issues

Threshold issues can be “silver bullet”.

If the violation is untimely filed, for example, the case must be dismissed as the FLRA only has jurisdiction over violations for a certain period of time. Or, as happened in a case I once had involving a Navy shipyard, there was a confusing system of recognitions. It turned out the union making the allegation thought it had the affected employees in its unit. The employees were actually in another unit and, since the time limit had passed for the other union to file, the case was dismissed.

As you do your fact finding, study the charge for threshold issues. Assume nothing. Let the facts develop and look for opportunities to undermine the GC’s case. More about this later.

Start Your Fact Finding

The above grievance discussion is a fairly common theory of a fairly common case. Of course, a theory is no good without the necessary facts and evidence to support it and so now we come to your job as an agency representative. I would want to know:

  • Do these people actually exist? (don’t laugh)
  • Is X a manager?
  • Are Y & Z unit employees in the same unit?
  • Were X & Y at work on the date involved?
  • What is their relationship?
  • Has 6 months passed since the alleged meeting?
  • Etc., etc.

Responding to the Charge

It’s important to remember the GC’s representatives are either prosecutors if they are field attorneys or investigators for the prosecutors in the case of field agents. Many who have dealt with the GC say the only words that should pass between the agency representative and the GC prior to a hearing are what any accused says to a prosecutor: “Not Guilty!”

As you will see, that is not what I am advocating in every case but it’s a good thing to keep in mind. You should not respond to the charge letter before you are familiar with the facts of the case and have developed a theory of your own. If you have a strong rebuttal or threshold issue, you can use that in your response but be extremely cautious about doing so.

As was said 1000 years ago, “The moving finger writes; and, having writ, moves on: nor all your piety nor wit shall lure it back to cancel half a Line, nor all your tears wash out a word of it.” Once you put a response in writing, you are bound by it even if the facts drift or manager memories become less clear.

In almost every case, I suggest you use the Sample Agency Response to FLRA GC Charge Letter. (Clicking on this link will download a Microsoft Word document)

Wrangling with the Office of General Counsel

Once you have responded, expect a visit from the field agent or attorney. Often, they will want to discuss the case with you over the telephone before coming on site. In Part 3, we’ll take a look at how to deal with and get ready for dealings with these folks. This is not a job for the timid or insecure. You may even have to dust off your Monty Hall jacket to play. That’s geezer talk for recognizing you may be in a negotiation.

As usual, the opinions expressed are mine alone. However, I am fairly certain some of my opinions about the Office off the GC are shared by those who represent agencies but who remain silent because they have not retired yet.

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.