What You Can and Cannot Say or Do to Union Representatives and Employees in a Bargaining Unit

What constitutes protected statements or actions between management and bargaining unit employees?

Union representatives and employees are protected by the Statute from statements or actions taken against them by management because they are assisting the union or seeking the assistance of the union. If they are engaged in protected activity, they have greater rights with respect to their activities than a regular employee. This is especially true for union representatives who are representing individual employees or are engaged in collective bargaining. 

Statements: Oral or Written

A statement which interferes, restrains or coerces an employee in the exercise of rights given to the employee under the Statute is an unfair labor practice.

Employee rights include the right to form, join or assist a union or to seek the assistance of a union. Statements may be made orally or in writing. Statements to union representatives which interfere, restrain or coerce them in the exercise of their right to assist the union are also un-fair labor practices. 

These types of disputes are difficult to resolve because they involve the credibility of the supervisor and the employee. They are often the only people involved in the conversation. It is the word of the employee against the word of the supervisor.

If the statement is the basis of an unfair labor practice charge, the Office of General Counsel does not decide who is telling the truth. Its investigation will determine whether, under the circumstances, the evidence indicates that a statement was made and whether the statement, if made, would be an unfair labor practice. It will be up to the Administrative Law Judge in an unfair labor practice hearing to decide who is telling the truth.

Robust Debate 

Union representatives are entitled to greater latitude in speech and action than are other employees. They may vigorously defend the union and employees.

Robust debate often equates to the use of language which, absent the protected activity of the union representative, would not be considered appropriate in the work place.

In situations where a Union steward uses vulgarity or rough language, the question may become whether managers themselves routinely use such language or whether such language is a regular occurrence in the workplace. Frequently, the heated nature of the conversation and the circumstances surrounding the discussion are the basis for determining whether the language or discussion was inappropriate. The language will lose its protection if it amounts to flagrant misconduct. Flagrant misconduct is more fully discussed later in this article.

Freedom of Expression

Section 7116(e) of the Federal Service Labor Management Relations Statute provides protection to supervisors and managers who make statements which are expressions of any personal view, argument, or opinion which informs employees of the government’s policy relating to labor relations and representation if the expression contains no threat or reprisal or force or promise of benefit or was not made under coercive conditions.

They also have the right to make statements which correct the record with respect to any false or misleading statement. This section of the Statute gives managers and supervisors the right to express their opinion concerning labor relations matters as long as it is not threatening or coercive to employees. 

Example 1 – Who is Telling the Truth?

Cassidy Wilder works as claims examiner in the District Office of her agency. She has been unhappy about how leave is granted around the holidays. She does not believe her supervisor is following the provisions of the collective bargaining agreement but instead is granting leave to her favorites first.

She talked to her supervisor, Sally Burgh. She told her she was going to file a grievance over her practice.

Sally did not want to get in trouble with higher level management. She had recently had another allegation that she played favorites in a promotion action.

She decided to solve this one the way she solved the other. She told Cassidy that if she filed a grievance, higher level management would back her, she would get a reputation as a trouble maker, and she would see to it that she never got her leave request granted for holiday time off. She also told her she would deny having had this conversation with her.

Management, in its response to an unfair labor practice charge filed by the union, denies that the statements were made by Sally.

The first statement – that if Cassidy filed a grievance, higher level management would back Sally, was intended to restrain her from filing a grievance. A reasonable employee would understand that remark as an effort to stop her from grieving the holiday leave policy.  

The second statement – that she would get a reputation as a troublemaker – was also intended to interfere with her right to file a grievance. While, on its face, it might be a true statement, unlike libel and slander where truth is a defense, the fact that this might be true is no defense to its coercive effect on Cassidy. 

The last statement was clearly a threat that she would never obtain holiday leave if she filed a grievance. 

These statements, if made, would be violations of the law. If the union and management are not able to resolve this dispute, the FLRA Office of General Counsel issues an unfair labor practice complaint.

An administrative law judge will decide who is telling the truth. One of the things the judge will look at is the demeanor of the witnesses, which includes, among other things, who sounds more trustworthy. The judge will also look at whose story makes the most sense and whose facts are clearly presented.

Two different judges could potentially make different decisions on the credibility of the same witnesses. This is always the chance you take when you are in litigation. 

Example 2 – Are These Threatening or Coercive Statements?

At the end of the work day, Colin Archer stopped by his supervisor’s office to report on his last assignment. His supervisor, Oakley Ville, had just completed reviewing a grievance that was filed over the movement of a desk two feet farther from the break room area. The union complained that this change was made without using the collective bargaining agreement procedures for office relocations.

Oakley was frustrated by the grievance. When Colin came in, Oakley asked him if he was a member of the union. He then went on to say he had a silly grievance he was spending time on and he wished the union had better things to do with their time. 

Management does not deny that Oakley made the statements. It claims the statements were expressions of personal opinion and therefore did not violate the Statute.

It is not threatening or coercive for Oakley to ask Colin whether he was a member of the union. Such a question does not contain a threat.

Calling the grievance a silly grievance was also not threatening, nor did it denigrate the union for having filed it. Saying he wished the union had better things to do also could be seen as not coercive.

Oakley made these statements to one employee in a non-threatening or coercive atmosphere. They were expressions of his opinion and not intended to threaten the employee.  

Discriminatory Actions

Actions by management which encourage or discourage employee membership in a union by discrimination in connection with hiring, tenure, promotion or other conditions of employment are unfair labor practices.

When actions are taken against employees or union representatives that would not otherwise have been taken had they not engaged in union activity, the actions are considered discriminatory. The types of actions which have been found to be violations of the law include disciplinary actions, denials of promotions, removals during an employee’s probationary term, denials of awards and denials of other benefits. 

In a situation where the union claims that an employee or union representative was discriminated against by management, it must make a prima facie showing that the action taken against the employee was based on his/or her union activities. If management can show that it would have taken the action it took regardless of the union activities, it will not have violated the Statute. An employee may be engaged in union activities, but if management can show it would have taken the same action against any employee or treated any other employee the same way, discrimination will not be found. 

Flagrant Misconduct  

Union representatives and employees who engage in flagrant misconduct lose the protection of the Statute.

Flagrant misconduct is conduct on the part of an employee which goes beyond the boundaries of what would be considered appropriate conduct under the circumstances.

In determining whether an action or statement by a union representative is flagrant misconduct, the following factors should be considered:

  1. The place and subject matter of the discussion;
  2. Whether the employee’s outburst or action was impulsive or designed;
  3. Whether the outburst or action was in any way provoked by the employer’s conduct; and
  4. The nature of the intemperate language and conduct.

A union representative who, in a heated grievance discussion, pushes a manager and causes injury would clearly have engaged in flagrant misconduct. However, if the union representative was acting in self-defense, the conduct might not be considered flagrant misconduct.

What is or is not flagrant misconduct is determined by the individual circumstances of each incident.

Case Study: What Managers Can and Cannot Say and Do

Gayle Mayfield is the union steward for the Operations Branch of the District where she is a level one operations controller. She had filed over 20 unfair labor practices and 10 grievances in the past year.

She is also active on the union negotiating team for the agency collective bargaining agreement. She spends approximately 50% of her time on union business.

She had recently applied for a promotion to a level two operations controller position. The position requires being available full time to assist in operational issues. She has always received the highest performance ratings for her job and also was deemed best qualified for the promotion.

She asked the supervisor who interviewed her for the promotion what her chances were of getting promoted. He told her the job required someone who could work full time at the job and she would have to consider the impact of the job on her union activities.

She did not receive the promotion. An employee who was also rated best qualified but did not perform union activities was selected. Gayle filed an unfair labor practice charge against management.

Was It Discrimination?

To prove an employee was discriminated against based on performing union activities, the person filing the unfair labor practice charge must first show that the employee was engaged in union or other protected activities. If the employee was not engaged in protected activities, there can be no discrimination.

In this example, Gayle Mayfield was an active union representative who clearly was heavily engaged in assisting the union. Additionally, the selecting supervisor told Gayle that she should consider the impact of the job on her union activities. Gayle has met her prima facie burden of showing protected activity. 

Management now has the opportunity to show that it could justify the selection it made and would have made the same promotion decision regardless of Gayle’s union activities. The employee who received the position was rated the same as Gayle.

Gayle was told to consider the impact on her union activities of having to work full time in the new position. Management can argue that the statement was not coercive.

The manager was seeking an accommodation with the employee over how she would handle her union duties in the new position. Management has the right to inquire as to the effect of Gayle’s union duties on her ability to do the job, as long as the inquiry is not coercive or threatening in nature. 

About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email info@jsafed.com or subscribe to JSA’s newsletter.