Handling ULP Investigations: An Agency Perspective Part 3 – Dealing Resolutions
Part 1 looked at the FLRA’s Office of General Counsel (GC), what they do, and the reality that the GC’s representatives are not neutral. Part 2 addressed how case theory drives the investigation. This part discusses working your interests to make the case go away or negotiating a deal to dispose of it.
How ULPs End
Unfair labor practices end in a number of ways.
Agency representatives can affect each depending on the circumstances. The key is to realize that from the first day the charge appears on your desk, you are in a negotiation. It won’t look like other negotiations but is one nevertheless. As in any negotiation, shaping expectations plays a critical role. The other players in this negotiation are the employees of the General Counsel and the union.
Each of you bring your own interests and expectations to the process. While I can’t begin to understand all the GC’s motives, union expectations are fairly clear. Typical goals include asserting rights, finding vindication after a perceived mistake by the Agency, or embarrassing Agency managers. Internal union politics are also a factor. ULP filings rise if union elections are pending, membership is flagging or when there are differences between officers.
Union Withdrawals/GC Dismissals
Rather than dismiss a case out of hand, the GC offers the union the opportunity to withdraw. They only dismiss when the union won’t withdraw. So how does the agency play a role in this?
Build your case and use it to lower the union’s or GC’s expectation of prevailing should the matter go to trial. The more important player is the GC. As far as the union is concerned, nothing ventured, nothing gained, while the GC has to take the case to trial.
Trials are expensive, time consuming and not at all predictable in terms of outcome. Unless the GC is out to expand the understanding of the statute, the more mundane the case, the more likely the GC wants it to go away. Unless the GC thinks it has either a strong fact or law case, there’s almost no payoff in going to trial.
The GC hates to lose probably even more than we do. Remember that 5 or 6,000 charges are filed a year. The more resistance to being rolled you show, the more the GC will pressure the union to withdraw. When the statute was fairly new, an agency I am familiar with told a Regional Director (RD) that the field agents and attorneys were being very difficult to deal with and were pushing the envelope on tolerable behavior pretty hard. The RD was advised that if the GC’s high handed tactics continued, the agency would have no choice but to litigate every charge.
Since that agency had many units, unions and charges filed in the director’s region, it was amazing how much more cooperative and less high handed the GC folks got. Work your theory and the facts that support it. The better your ability to rebut the charge appears, the lower the GC’s expectation of winning and the higher the pressure on the GC to get out of it.
If the agency and the union, otherwise known as the parties to the ULP, cut a deal which results in the withdrawal of the charge, the GC has little choice but to buy in. The GC maintains that it doesn’t have to accept a withdrawal but I don’t think any case has gone to a hearing in the face of a party settlement. I can hear the ALJ asking the GC why we’re all there when the union has decided that none of its rights nor the statute have been violated. I have a very positive view of the judges in part because they brook very little posturing by the GC.
What’s in a party settlement is, of course, up to the parties. A couple of things are important. First, don’t admit violating the law. Second, the quid pro quo for whatever the union gets is withdrawal of the charge. If you’re going to get found to have violated the law, make the GC pay the price, i.e., proving it. Let’s look at a key feature of these deals, the “I didn’t do it and I’ll never do it again” clause.
Try this on for a provision in your party settlement:
The agency understands how the union could construe the facts in its possession in such as way as to conclude the agency violated the union’s (specify statutory provision) rights. Despite that appearance, the agency, by this agreement assures the union that any such appearance does not arise from any intent on the agency’s part to violate the statute. The agency, as a matter of policy both at the national and local level recognizes its responsibility to respect the union’s and employees’ statutory rights. The agency further assures the union that any established violations of the Federal Labor Management Relations Statute by any agency official will be dealt with swiftly and appropriately. The agency sincerely regrets the union’s belief that a violation took place. The agency values a cooperative and problem solving relationship with the union. The agency hopes this agreement will advance that purpose.
If you think this piles it on too deeply, moderate or strengthen the language in direct proportion to how likely you are to prevail or lose at hearing. If you’re asking why the union should buy a deal based on this language, reread it. A lot of unions would post this on agency bulletin boards along side a claim that it represents a victory against the forces of evil, namely you.
It can happen, although rarely, that the GC cuts a deal with an agency to resolve a ULP charge over a union’s objections. This may occur when there’s a gap between the beliefs of the GC and the union on how the case should go down. If the GC wants to make the case go away but doesn’t want to dismiss and the union won’t withdraw, this may be an option. Recognize that the GC will generally require a posting as a nonnegotiable condition on the deal. Once you’re past that, remember the language of the posting is bargainable with the GC. Expect the GC to want an admission of a violation. But the GC knows the only way you can be forced into a posting with an admission is as the result of an adverse decision at trial and even then, if you appeal, only after a FLRA decision. Bargain away.
Don’t Try This at Home
The above is not the business of dilettantes. Before an Agency sends someone to mess around with the GC in a ULP case, that person should:
• Know the law
• Have served in progressively more complicated ULP resolutions as an intern, trainee and assistant to an experienced professional
• Have the resource support of Agency management
• Prepare thoroughly and completely for any conversation or meeting with the GC or the union
• Be carrying out a strategy endorsed by senior Agency officials including the person who would be expected to sign a posting were a posting ordered
The goal of this series is to open discussion of agency approaches to dealing with ULP allegations in a real world context. As always, in federal labor relations, reality and the written statutory or regulatory word don’t exactly comport with each other. More can and does go on than the casual observer might deduce from the dry reports of the FLRA or GC to Congress.
In conclusion, let me say that most of the GC Field Agents and Attorney’s I dealt with were stand up people as were and are the overwhelming number of Feds I’ve met. We had different roles and goals and were I in their shoes, I can’t say I wouldn’t have done the same things they did. I worked for agencies so I wouldn’t have to face those decisions. I’m told that the current GC represents a departure from some of the policies of her predecessors. Time will tell.
As usual, the opinions expressed are mine and mine alone.