Unfair Labor Practices Under the Federal Service Labor-Management Relations Statute (FSLMRS): Overview | Practical Law

Unfair Labor Practices Under the Federal Service Labor-Management Relations Statute (FSLMRS): Overview | Practical Law

A Practice Note discussing agency and union unfair labor practices (ULPs) under the Federal Service Labor-Management Relations Statute (FSLMRS). This Note describes the process for filing ULP charges, the Federal Labor Relations Authority's (FLRA's) process for investigating ULP charges, and bars to filing ULP charges.

Unfair Labor Practices Under the Federal Service Labor-Management Relations Statute (FSLMRS): Overview

by Practical Law Labor & Employment
Maintained • USA (National/Federal)
A Practice Note discussing agency and union unfair labor practices (ULPs) under the Federal Service Labor-Management Relations Statute (FSLMRS). This Note describes the process for filing ULP charges, the Federal Labor Relations Authority's (FLRA's) process for investigating ULP charges, and bars to filing ULP charges.
The Federal Service Labor-Management Relations Statute (FSLMRS) identifies agency and union unfair labor practices (ULPs). The Federal Labor Relations Authority's General Counsel (GC) has direct authority over and responsibility for headquarters and regional office staff involved in investigating and processing ULP charges and cases. The bulk of FLRA's work is devoted to handling ULP charges. The FLRA receives about 4000 ULP charges each year from federal employees, unions, and agencies. Most charges are filed by unions against agencies. This Note covers federal law and applies only to federal unions, agencies, and employees.
Federal unions, agencies, and employees can file ULP charges with the appropriate FLRA regional office (RO), alleging a violation of the FSLMRS. ROs use a variety of methods when investigating ULP charges, including alternative dispute resolution (ADR). The RO makes every effort to:
  • Understand the nature of the labor dispute.
  • Understand the interests of the parties to the dispute.
  • Consider any attempts by the parties to resolve the matter informally.
This Note describes:
For more information about the FLRA's processes, see:

Agency ULPs

An agency commits a ULP when it:
  • Interferes with, restrains, or coerces an employee exercising rights under the FSLMRS.
  • Encourages or discourages membership in a union by discriminating in hiring, tenure, promotion, or other conditions of employment (COE).
  • Engages in union business or assists or treats an equivalent union more favorably when furnishing routine services.
  • Disciplines or discriminates against an employee who files a complaint, affidavit, or petition or who provides information or testimony.
  • Refuses to negotiate or consult in good faith with a union.
  • Fails or refuses to cooperate in impasse procedures and decisions.
  • Enforces any rule or regulation that conflicts with applicable collective bargaining agreements (CBAs) other than one implementing the prohibited personnel practices (PPPs).
  • Fails or refuses to comply with the FSLMRS.
(5 U.S.C. § 7116(a).)

Agency Unlawful Interference (5 U.S.C. § 7116(a)(1))

An agency commits a ULP when it interferes with, restrains, or coerces an employee exercising rights under the FSLMRS (5 U.S.C. § 7116(a)(1)).

Employee Rights Under 5 U.S.C. § 7102

5 U.S.C. § 7102 provides that each employee:
  • Has the right to form, join, or assist the union.
  • Can refrain from forming, joining, or assisting the union.
  • Is protected when exercising rights under the FSLMRS.
Employee rights under 5 U.S.C. § 7102, include:
  • Acting as a union representative.
  • Presenting union views to:
    • agency heads;
    • other executive branch officials;
    • Congress; and
    • other appropriate authorities.
(5 U.S.C. § 7102(1).)
Employee protected activities include:
Employees generally have the right to wear union insignia at work, unless the agency's ban meets the FLRA's special circumstances test, which examines:
  • The circumstances when the union insignia is worn.
  • The size, shape, and color of the insignia.
  • The messages printed on the insignia.
  • The nature of the employer's activity.
  • The employer's need for production and safety.
(Army and Air Force Exch. Serv., Fort Drum Exch., Fort Drum, N.Y., 41 F.L.R.A. 85, 87 (1991).)
The Fifth and Ninth Circuits have held as a matter of law that law enforcement agencies may institute anti-adornment uniform policies because strict uniform appearance is tied to the organization's interest in fostering discipline, promoting uniformity, encouraging esprit de corps, and enhancing the identification of its employees (U.S. Dep't of Justice, INS, U.S. Border Patrol, San Diego Sector, San Diego, Cal., 38 F.L.R.A. 701, 715 (1990)).

FLRA Standard for Determining Agency Unlawful Interference

When determining if an agency unlawfully interferes with an employee exercising rights under the FSLMRS, the FLRA looks at the circumstances objectively and considers:
  • If the statement or conduct tends to coerce or intimidate the employee.
  • Whether the employee can reasonably draw a coercive interference from the statement.
(U.S. Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Elkton, Ohio, 62 F.L.R.A. 199 (2007).)
Specifically, the FLRA considers the circumstances surrounding the statement, not the employee's perceptions or the employer's intent (U.S. Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Elkton, 62 F.L.R.A. at 199).
An agency may violate 5 U.S.C. § 7116(a)(1) without committing other ULPs or showing a general dislike for the union (union animus) (U.S. Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Elkton, 62 F.L.R.A. at 199).
The FLRA held that if an employee thinks twice before exercising a statutory right, the employer may be found to have interfered with the employee's rights (Dep't of Treasury, IRS, Louisville, Ky., 11 F.L.R.A. 290, 298 (1983) (ALJ Decision adopted by FLRA without discussion)).

Management Expression of Personal Views About the Union

When the FLRA is not conducting a representational election, persons may:
  • Express personal views about the union.
  • Present argument concerning the union.
  • Express opinion without threat or promise of benefit.
(Oklahoma City Air Logistics Ctr. (AFLC), Tinker AFB, Okla., 6 F.L.R.A. 159 (1981) (adopting the ALJ reasoning and decision).)
When the FLRA is conducting a representational election, statements protected include:
  • Publicizing a representational election and encouraging employees to vote in the election.
  • Correcting any false or misleading statement made by any person.
  • Informing employees of government labor-management relations and representation policy.
(5 U.S.C. § 7116(e).)
The FLRA found that an agency's conduct or statements constituted unlawful interference when:

Agency Action Against a Supervisor

Supervisors are not protected by the FSLMRS, but if an agency's discipline of a supervisor has a chilling effect on employees exercising protected rights, it may violate the FSLMRS (Dep't of the Navy, Portsmouth Naval Shipyard, Portsmouth, N.H., 16 F.L.R.A. 93 (1984)).

Non-Employee Union Representative Access to Agency Premises

When determining whether agencies must grant non-employee union organizers access to agency premises, the FLRA adopted National Labor Relations Board (NLRB) precedent as an appropriate starting point for its analysis, considering:
  • Whether the union has other channels of communications available for reaching employees.
  • Whether the employer discriminates against the union by allowing other similar distributions.
(Dep't of the Air Force, Randolph AFB, 58 F.L.R.A. at 18-19.)
The FLRA:

Agency Surveillance of Employees

To determine whether management's surveillance of a protected activity interferes with employees' statutory rights, the FLRA considers if management's presence tends to have a chilling effect on the exercise of those rights. An agency's surveillance may violate the statute even if it does not actually stop employees from exercising protected rights. (Dep't of the Army, Fort Bragg Sch., 3 F.L.R.A. 363, 376 (1980).)

Agency Discrimination (5 U.S.C. § 7116(a)(2) and (4))

5 U.S.C. § 7116(a)(2) provides that an agency commits a ULP by encouraging or discouraging membership in a labor organization by discriminating in connection with:
  • Hiring.
  • Tenure.
  • Promotion.
  • Any other COE.
5 U.S.C. § 7116(a)(4) provides that an agency commits a ULP if it disciplines or discriminates against an employee because the employee:
  • Files a complaint.
  • Provides an affidavit or petition.
  • Gives information or testimony under the FSLMRS.
Prohibited discrimination includes discriminating because an employee:
  • Participates in protected union activities, including FLRA investigations or proceedings.
  • Elects not to participate in protected activity.
(5 U.S.C. § 7102.)

Agency Discriminatory Action

To determine if an agency discriminates against an employee under the FSLMRS, the GC must show that:
  • The employee was engaged in protected activity under the FSLMRS.
  • The employee's protected activity was a motivating factor in the agency's action.
(Letterkenny Army Depot, 35 F.L.R.A. 113, 118 (1990).)
If the GC makes the showing, the FLRA finds that the agency violated the statute unless the agency can prove that it had a legitimate reason for taking the action (U.S. Dep't of Argric., U.S. Forest Serv., Frenchburg Job Corps, Mariba Ky., 49 F.L.R.A. 1020 (1994)). If the agency asserts that it had a legitimate reason for taking the action, the GC may try to show that the reason is pretextual (Letterkenny, 35 F.L.R.A. at 120).
In AFGE, Nat'l Border Patrol Council, Local 2266, the FLRA found when reviewing exceptions to arbitration awards that it has never held that the Letterkenny framework must be invariably applied to decide if an agency violates 5 U.S.C. § 7102 by punishing protected activity (69 F.L.R.A. 525 (2016)).
The FLRA has found that an agency discriminated against an employee when:

Mixed Motive Agency Action

When an agency identifies its reasons for taking an action against an employee engaged in protected activity, the FLRA determines if the agency can prove that:
  • There was a legitimate reason for its action.
  • It would have taken the action even if the employee was not engaged in protected activity.
(Dep't of the Air Force, Air Force Material Command, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 55 F.L.R.A. 1201, 1205 (2000).)

Employees Engaged in Flagrant Misconduct

Employees engaged in protected union activity may lose statutory protection if the employee's conduct is considered flagrant (U.S. Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan AFB, Tucson, Ariz., 58 F.L.R.A. 636 (2003)). Outrageous and insubordinate conduct is considered flagrant and removes the employee from FSLMRS protection (Naval Facilities Eng'r Command, W. Div., San Bruno, Cal., 45 F.L.R.A. 138, 156 (1992)).
The FLRA balances the employee's right to engage in protected activity (giving leeway for impulsive behavior) against management's right to maintain order and respect for supervision (Dep't of the Air Force, Grissom AFB, Ind., 51 F.L.R.A. 7, 10-11 (1995)). When applying its test for flagrant misconduct the FLRA considers:
  • The place and subject matter of the discussion.
  • Whether the outburst or conduct was impulsive or planned.
  • Whether the employer's conduct provoked the employee.
  • The nature of the language or conduct.
(Defense Mapping Agency Aerospace Ctr., St. Louis, Mo., 17 F.L.R.A. 71, 81 (1985).)
Criminal conduct is not protected activity (Long Beach Naval Shipyard, Long Beach, Cal., 25 F.L.R.A. 1002, 1006 (1987)).

Agency Control of Labor Organization (5 U.S.C. § 7116(a)(3))

An agency commits a ULP if it sponsors, controls, or otherwise assists any union, except for furnishing on request customary and routine services and facilities that the agency furnishes impartially to other labor organizations with equivalent status (5 U.S.C. § 7116(a)(3)). A union has equivalent status when the RD:
  • Determines that the union's filed petition for representation has prima facie showing of interest (notice of petition posting).
  • Informs the parties of its determination.
(U.S. Dep't of Def. Dependents Sch., Panama Region, 44 F.L.R.A. 419, 424-25 (1992).)
An agency must give a union with equivalent status the same services and facilities it gives an incumbent union (U.S. Dep't of Def., Dep't of Army, U.S. Army Air Def. Ctr., and Fort Bliss, Fort Bliss, Tex., 29 F.L.R.A. 362, 365 (1987)). However, when an agency must provide a union with a service or facility because of a CBA provision, the agency is not required to equalize the unions' positions (U.S. Dep't of Homeland Security, U.S. Customs and Border Prot., 62 F.L.R.A. 78, 81-82 (2007)).
When an agency is charged with controlling a labor organization by granting or denying access to services and facilities, the FLRA considers:
  • Whether the agency interfered with employee freedom of choice by failing to maintain the appropriate arms-length relationship with the union.
  • Whether the agency sponsored, controlled, or otherwise assisted any union.
  • Case law interpreting Section 8(a)(2) of the National Labor Relations Act (NLRA).
(SSA, 52 F.L.R.A. 1159, 1180 (1997).)
For example, the FLRA looked to NLRB v. Babcock & Wilcox Co. to decide if the agency violated 5 U.S.C. § 7116(a)(3) when the union was denied a permit to hand out literature at the agency headquarters outdoor areas, finding that the agency discriminated against the rival union because the agency did not have a "no-solicitation" rule (SSA, 52 F.L.R.A. at 1159, 1184-85). The Babcock case conditioned an employer's prohibition against an outside union handing out union literature on:
  • The union's ability to reach employees through other communication methods.
  • The employer's refusal to allow other unions to hand out materials.
(351 U.S. 105 (1956).)

Agency Duty to Bargain in Good Faith (5 U.S.C. § 7116(a)(5))

The FSLMRS requires agencies and recognized unions with a collective bargaining relationship to bargain in good faith (mutual obligation of the parties) and:
  • Meet at reasonable times to consult and bargain and reach agreement on COE affecting unit employees.
  • Execute, if requested by the union, a written document incorporating any CBA reached by the parties.
(5 U.S.C. § 7103(a)(12).)
The obligation to bargain in good faith does not compel the agency to:
  • Agree to a proposal.
  • Make a concession.
(5 U.S.C. § 7103(a)(12).)
The agency has a duty to bargain with the recognized union for:
A matter is fully negotiable (requiring substance bargaining) if it is not:
  • Reserved as a management right.
  • A permissive subject of bargaining.
  • A prohibited subject.
Bargaining over negotiation ground rules is a mandatory subject within the scope of bargaining (U.S. Dep't of Treasury, Customs Serv., Wash., D.C., 59 F.L.R.A. 703, 709 (2004)).

Conditions of Employment

The collective bargaining obligation for the parties extends to the COE of the bargaining unit employees. The FLRA determines whether a proposal involves a COE by considering:
  • Whether the bargaining proposal pertains to bargaining unit employees.
  • The nature and extent of the effect of the bargaining proposal on working conditions.
(Antilles Consol. Educ. Ass'n, 22 F.L.R.A. 235, 236 (1986).)
The FLRA clarified that there is a distinction between COE and "working conditions," finding the terms related but not synonymous (U.S. DHS, U.S. CBP, El Paso, Tx., 70 F.L.R.A. 501 (2018)). Citing to Supreme Court precedent, the FLRA finds that while the term COE is susceptible to multiple interpretations, the term "working conditions" as used in 5 U.S.C. § 7103(a)(14) refers to the day-to-day circumstances under which employees perform their jobs (Fort Stewart Sch. v. FLRA, 495 U.S. 641,645 (1990) (emphasis added) (citing DOD Dependents Sch. v. FLRA, 863 F.2d 988, 990 (D.C. Cir. 1988))).
COE may be established by:
  • The party's agreement (however, something that is not a COE cannot become a COE by the parties' agreement or practice (Naval Weapons Station Concord, 33 FLRA 770 (1988)).
  • Past practice when the practice is:
    • consistently and openly exercised over a significant period of time; and
    • followed by both parties or followed by one party and not challenged by the other.
(U.S. Dep't of Labor, Wash., D.C., 38 F.L.R.A. 899 (1990).)
When the parties include a matter in their CBA, the CBA generally governs the unit employees' COE. Occasionally, the parties can establish COE that differ or are inconsistent with the terms of the CBA. When determining if the inconsistent practice is a COE, the FLRA applies its past practice test (U.S. Dep't of Veterans Affairs N. Ariz. VA Health Care Sys., Prescott, Arz., 66 F.L.R.A. 963 (2012)).

Agency Obligation to Bargain Over Changes in COE

Agencies must give the recognized union notice and a chance to bargain over any changes in unit employees COE (U.S. Army Corps of Eng'rs, Memphis Dist., Memphis, Tenn., 53 F.L.R.A. 79, 81 (1997)). The agency has a duty to bargain when:

Effect of the Parties' CBA on the Agency's Obligation to Bargain

An agency is not required to bargain over a change if the subject matter of the change is "covered by" the parties' agreement. The "covered by" doctrine prevents a party from bargaining over matters "contained in or covered by" the parties' existing CBA (AFGE, Local 225, 56 F.L.R.A. 686, 689 (2000)).
When determining whether a matter is "contained in or covered by an agreement," the FLRA applies a two-prong test as follows:
  • Prong 1: Is the subject "expressly contained" in the CBA (would a reasonable reader conclude that the provision in the CBA settles the matter in dispute)? If it is, the matter is "covered by" the agreement and the agency has no bargaining obligation.
  • Prong 2: Is the subject "inseparably bound up with" and plainly an aspect of a subject covered by the agreement? If it is, the matter is "covered by" the agreement and the agency has no bargaining obligation.
(U.S. Dep't of HHS, SSA, Balt., Md., 47 F.L.R.A. 1004, 1018 (1993).)
When determining if a matter is inseparably bound up with a subject covered by the CBA, the FLRA determines if the proposal's subject matter is so commonly considered an aspect of the matter set out in the provision that negotiations are presumed to preclude further bargaining over the matter, regardless of whether it is expressly articulated in the provision (SSA, Balt., 47 F.L.R.A. at 1018).
When it is difficult to determine if a matter was already negotiated, the FLRA looks at whether the parties should have reasonably contemplated that the CBA foreclosed further bargaining (U.S. Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 56 F.L.R.A. 809, 813-14 (2000)).
When the subject matter is merely "tangentially" related to the provisions of the CBA (a subject not reasonably contemplated by the parties as an aspect of the provision), the FLRA does not find that the subject is "covered by" the CBA provision (IRS, Nat'l Dist. Ctr., Bloomington, Ill., 64 F.L.R.A. 586 (2010)).
A party may choose to bargain over matters "contained in or covered by" an existing CBA (NAGE, Local R-3-32, 61 F.L.R.A. 127, 131 (2005)).

Agency Defense to a ULP Charge (CBA Permitted)

When an agency claims that a provision of the CBA permitted its action, the FLRA will determine the meaning of the parties' CBA, applying the "contract interpretation" doctrine used by:
  • Arbitrators in the federal and private sectors.
  • Courts in federal and private sector cases.
(IRS, 47 F.L.R.A. 1091, 1103-1110 (1993).)
The FLRA has found that it may be necessary to apply the "covered by" and "contract interpretation" doctrines in the same case when determining the agency's obligation to bargain (AFGE Local 3937, 64 F.L.R.A. 17 (2009)).

Union Waiver of the Right to Bargain Over a Subject

The Union may waive its right to bargain over a subject by:
(U. S. Penitentiary, Leavenworth, Kan., 55 F.L.R.A. 704, 753 (1999).)

Agency Obligation to Bargain When Exercising a Management Right

Certain rights are reserved by the FSLMRS to agency management and are not subject to bargaining. Management has the sole discretion to:
  • Determine the agency's mission, budget, organization, number of employees, and internal security practices.
  • Hire, assign, direct, layoff, retain, suspend, remove, reduce in grade or pay, and discipline employees.
  • Assign work, contract out, and decide personnel to perform work.
  • Make selections to fill positions from appropriate sources.
  • Carry out the agency's mission in emergencies.
(5 U.S.C. § 7106(a).)
When an agency exercises a management right, the effects of the agency's action may be within the duty to bargain (Pension Benefit Guaranty Corp., 59 F.L.R.A. 48, 50 (2003)), but the scope of bargaining does not include the agency's decision to exercise the right (AFGE v. FLRA, 352 F.3d 433 (D.C. Cir. 2003)).

Agency Obligation to Bargain Over Permissive Subjects

Permissive subjects may be negotiated at the agency's discretion and include:
  • Numbers, types, and grades of employees, or positions assigned to an organizational subdivision, work project, or tour of duty.
  • Technology, methods, and means of performing work.
(5 U.S.C. § 7106(b)(1).)
Parties may withdraw from bargaining over permissive subjects before reaching an agreement. If the parties reach an agreement on a permissive subject, it is binding on the parties until the agreement expires (5 U.S.C. § 7114(c)).
Parties may not insist to impasse on a permissive subject of bargaining (AFGE, Local 3937, 64 F.L.R.A. 17 (2009)).

Impact and Implementation Bargaining (I & I)

The agency must bargain over procedures for implementing a change in bargaining unit employees working conditions when it elects to exercise a management right (including those reserved under 5 U.S.C. § 7106(a)) when:
  • The impact of the change is more than de minimis.
  • The foreseeable impact of the change is more than de minimis.
(5 U.S.C. § 7106 (b)(2)); Dep't of Homeland Sec., Customs & Border Prot., 64 F.L.R.A. 989, 994 (2010).)
When Impact and Implementation (I & I) bargaining is required, the agency must:
  • Give the union advance notice of the change.
  • Provide the union with a reasonable opportunity to request bargaining.
The agency's failure to give the union proper notice before implementing a change without bargaining is bad faith bargaining (U.S. Dep't of the Army, Lexington-Blue Grass Army Depot, Lexington, Ky., 38 F.L.R.A. 647, 661 (1990)). Proper notice requires the union be provided with specific enough information to trigger the union's request to bargain (Ogden Air Logistics Ctr., Hill AFB, Utah, 41 F.L.R.A. 690, 698 (1991)).
The agency may terminate an unlawful past practice even if the union does not agree on the substance of the decision. However, terminating the unlawful practice may give rise to the duty to bargain over the impact of the change on bargaining unit employees (Dep't of Interior, U.S. Geological Survey, Metairie, La., 9 F.L.R.A. 543, 544-45 (1982)).

Appropriate Arrangement Bargaining

The agency is required to bargain when a proposal is intended as an arrangement for bargaining unit employees adversely affected by exercising a management right. The FLRA determines:
  • If the claimed arrangement is sufficiently "tailored" to compensate employees suffering an adverse effect attributable to the exercise of management's rights.
  • If the proposal "excessively interferes" with the relevant management right by weighing the competing practical needs of employees and managers.
(5 U.S.C. § 7106(b)(3); NFFE, Local 2192, 59 F.L.R.A. 868, 870-71 (2004).)

Agency Refusal to Cooperate in Impasse Procedures (5 U.S.C. § 7116(a)(6))

An agency violates 5 U.S.C. § 7116(a)(6):
  • By implementing a change in COE after the Federal Service Impasses Panel (FSIP) directs the agency to maintain the status quo.
  • When its implementation of a change in COE violates an FSIP procedure.
(U.S. INS, Wash., DC, 55 F.L.R.A. 69 (1999).)
For more information on FSIP procedures, see Practice Note, Federal Service Impasses Panel (FSIP).

Agency Regulations That Conflict with the CBA (5 U.S.C. § 7116(a)(7))

An agency commits a ULP when it enforces any rule or regulation (other than a rule or regulation implementing the PPPs) (5 U.S.C. § 2302) that conflicts with any applicable CBA, if the CBA was effective before the date the rule or regulation was prescribed (5 U.S.C. § 7116(a)(7)).
Although an agency may not rely on regulations issued after the parties' negotiated agreement (Dep't of HHS, Health Care Fin. Admin., 39 F.L.R.A. 120,132 (1991)), the parties may allow later issued regulations to override the negotiated agreement (U.S. Dep't of the Air Force, Seymour Johnson AFB, 57 F.L.R.A. 772, 774 (2002)).
When interpreting 5 U.S.C. § 7116(a)(7), the FLRA excludes:
  • Government-wide rules binding on federal agencies.
  • Government-wide regulations binding on federal agencies.
  • Official policy declarations that generally apply throughout the federal government.
(NTEU, Chapter 6 & IRS, New Orleans Dist., 3 F.L.R.A. 747, 754-55 (1980).)
Government-wide rules and regulations:
  • Bar the negotiation of, and agreement on, conflicting union proposals.
  • Govern disputed matters even if the matter is covered by the CBA.
(5 U.S.C. § 7117(a)(1).)

Agency Failure or Refusal to Comply with FSLMRS Provisions

An agency commits a ULP when it violates any provision of the FSLMRS. Some examples of agency violations of the FSLMRS include when an agency:
(IRS, Wash., D.C. & IRS, Kansas City Serv. Ctr., Kansas City, Mo., 50 F.L.R.A. 661, 671 (1995).)
  • Refuses to allow the recognized union representative to participate at any formal discussion when the record indicates that:
    • there is a discussion;
    • the discussion is formal;
    • the discussion is between one or more agency representatives and one or more bargaining unit employees or their representatives; and
    • the discussion concerns any grievance, personnel policy or practice, or other general COE.
(5 U.S.C. § 7114(a)(2)(A).)
  • Refuses to allow the appropriate recognized union representative to participate in an examination of a unit employee by an agency representative investigating if:
    • the unit employee reasonably believes that the examination may result in disciplinary action; and
    • the employee requests representation (Weingarten right).
(5 U.S.C. § 7114 (a)(2)(B).)
(5 U.S.C. § 7131.)

Union ULPs

A union commits a ULP when it:
  • Interferes with, restrains, or coerces an employee exercising rights under the FSLMRS.
  • Causes or attempts to cause an agency to discriminate against an employee exercising rights under the FSLMRS.
  • Coerces, disciplines, fines, or attempts to coerce a union member as punishment, reprisal, or to hinder or impede the member's work performance or the discharge of the member's duties.
  • Discriminates against an employee in terms of conditions of union membership based on:
    • race;
    • color;
    • creed;
    • national origin;
    • sex;
    • age;
    • preferential or non-preferential civil service status;
    • political affiliation;
    • marital status; or
    • handicapping condition.
  • Refuses to negotiate or consult in good faith with an agency.
  • Fails or refuses to cooperate in impasse procedures and decisions.
  • Calls or participates in:
    • a strike;
    • a work stoppage;
    • a slowdown; or
    • pickets an agency in a dispute that interferes with agency operations.
  • Fails to act to stop or prevent a strike, work stoppage, slowdown, or picketing in a dispute that interferes with agency operations.
  • Fails or refuses to comply with the FSLMRS.
(5 U.S.C. § 7116(b).)

The Union's Duty of Fair Representation (5 U.S.C. 7116 (b)(1))

The union must fairly represent all bargaining unit employees without:
  • Discrimination.
  • Regard to labor organization membership (including non-dues paying members).
(5 U.S.C. § 7114(a) (1).)
The duty of fair representation applies to union representational activities grounded in the union's status as exclusive representative (NFFE Local 1827, 49 F.L.R.A. 738, 746 (1994)) and includes:

Union Breach of the Duty of Fair Representation

The union breaches its duty of fair representation when it:
  • Acts discriminatorily.
  • Acts arbitrarily.
  • Acts in bad faith.
(Nat'l Air Traffic Controllers Ass'n, MEBA/AFL-CIO, 66 F.L.R.A. 467, 472 (2012).)
The union violates 5 U.S.C. § 7116 (b)(1) and (8) when it breaches the duty of fair representation (Fort Bragg Ass'n of Educators, Nat'l Educ. Ass'n, Fort Bragg, N.C., 28 F.L.R.A. 908, 918 (1987)). However, the union may as a part of its internal governing procedures (excluding processes used to decide COE), exclude non-members from:
  • Contract ratification votes.
  • Polls taken to determine the union's position in negotiations.
(Nat'l Air Traffic Controllers Ass'n MEBA/AFL-CIO, 55 F.L.R.A. 601, 605 (1999).)
When determining if the union commits a ULP under 5 U.S.C. 7116 (b)(1), the FLRA applies the following tests:
  • For determining alleged discrimination:
    • the GC must initially establish that the employee was engaged in protected activity; and
    • that the employee's activity was a motivating factor in the employee's treatment.
(Letterkenny Army Depot, 35 F.L.R.A. 113 (1990).)
  • For determining if the union acts arbitrarily (when union membership is not a factor):
    • the FLRA determines if the union's behavior is irrational; and
    • finds no justifiable reasons for the union's actions.
(Loring AFB, Limestone, Me., 43 F.L.R.A. 1087, 1099 (1992).)
  • For determining if the union acts in bad faith:
    • the FLRA makes a subjective inquiry; and
    • looks at the union's motives for its actions.
(Nat'l Air Traffic Controllers Ass'n, MEBA/AFL-CIO, 66 F.L.R.A. at 472.)

Union Action Outside of FSLMRS Authority

The duty of fair representation does not apply when a union is acting outside of the authority granted under the FSLMRS (5 U.S.C. § 7114), including:

Union Unlawful Interference

A union commits a ULP when it:
  • Interferes with an employee exercising rights under the FSLMRS.
  • Restrains an employee from exercising rights under the FSLMRS.
  • Coerces an employee exercising rights under the FSLMRS.
(5 U.S.C. § 7116(b)(1).)
In determining if the union unlawfully interferes with an employee exercising rights under the FSLMRS, the FLRA applies an objective standard (whether the employee can reasonably infer coercion or a threat) (AFGE, Local 1931, AFL-CIO, Naval Weapons Station Concord, Concord, Cal., 34 F.L.R.A. 480, 487 (1990)). Some examples of union violations include:

Union Causes or Attempts to Cause Agency Discrimination (5 C.F.R. § 7116(b)(2))

A union commits a ULP if it:
  • Causes an agency to discriminate against any employee exercising rights under the FSLMRS.
  • Attempts to cause an agency to discriminate against any employee exercising rights under the FSLMRS.
(5 U.S.C. § 7116(b)(2).)
For example, the union violates 5 U.S.C. § 7116(b)(2) if it tries to have an employee disciplined by the agency (misusing government time and equipment) when the FLRA found the employee was engaging in protected activity (AFGE, Local 3475, 45 F.L.R.A. 537 (1992)).

Union Unlawful Discipline of Members (5 U.S.C. § 7116(b)(3))

A union commits a ULP if it coerces, disciplines, fines, or attempts to coerce a union member:
  • As punishment.
  • As reprisal.
  • To hinder or impede the member's work performance or the discharge of the member's duties.
(5 U.S.C. § 7116(b)(3).)
The FLRA fount that Congress wanted to ensure that:
  • Employees can perform their duties, even if the union takes an action against one of its members.
  • The government can effectively and efficiently conduct its business without interference from union actions against its members.
(AFGE Local 1738, 29 F.L.R.A.178 (1987).)

Union Discrimination in Membership (5 U.S.C. § 7116(b)(4))

The union commits a ULP if it discriminates against an employee in terms or conditions of union membership (denying membership or expelling employees) based on:
  • Race.
  • Color.
  • Creed.
  • National origin.
  • Sex.
  • Age.
  • Preferential or non-preferential civil service status.
  • Political affiliation.
  • Marital status.
  • Handicapping condition.
(5 U.S.C. § 7116(b)(4).)

Union Duty to Bargain in Good Faith (5 U.S.C. § 7116(b)(5))

A union recognized as the exclusive representative has the right and duty to:
  • Act for the employees in the bargaining unit.
  • Negotiate agreements on behalf of the employees in the bargaining unit.
(5 U.S.C. § 7114(a)(1).)
Unions have the same duty as agencies to approach and participate in the collective bargaining process in good faith to:
  • Meet at reasonable times to consult and bargain and reach agreement on COE affecting unit employees.
  • Execute, if requested by the agency, a written document incorporating any CBA reached by the parties.
(5 U.S.C. § 7103(a)(12).)
The obligation to bargain in good faith does not compel the union to:
  • Agree to a proposal.
  • Make a concession.
(5 U.S.C. § 7103(a)(12).)
The union violates this duty when it:

Union Refusal to Cooperate in Impasse Procedures (5 U.S.C. § 7116(b)(6))

Although the union can challenge an FSIP order, the union commits a ULP if it fails to comply with an FSIP order found proper by the FLRA (AFGE, Local 3732, 16 F.L.R.A. 318 (1984)).

Union Strike, Work Stoppage, or Slowdown (5 U.S.C. § 7116(b)(7))

A union commits a ULP if it:
  • Calls or participates in:
    • a strike;
    • a work stoppage;
    • a slowdown; or
    • pickets an agency in a dispute that interferes with agency operations.
  • Fails to act to stop or prevent a strike, work stoppage, slowdown, or picketing an agency in a dispute that interferes with agency operations.
(5 U.S.C. § 7116 (b)(7).)
Examples of union violations of 5 U.S.C. § 7116(b)(7) include:
To determine if picketing interferes with an agency's operations, the FLRA considers:
  • The government interest involved.
  • The sensitivity of the agency's function and its purpose.
  • Where the picketed agency is located.
  • How long the picketing lasts.
  • The number and actions of the picketers.
(P.R. Air Nat'l Guard, 156th Airlift Wing (AMC), Carolina, P.R., 56 F.L.R.A. 174 (2000).)

Union Failure or Refusal to Comply with FSLMRS Provisions (5 U.S.C. § 7116(b)(8))

A union commits a ULP when it violates any provision of the FSLMRS. Examples of union violations of the FSLMRS include when:

Union Denies Membership (5 U.S.C. § 7116(c))

A union commits a ULP if it denies membership to any unit employee, unless the employee fails to either:
  • Meet reasonable occupational standards uniformly required for admission.
  • Pay dues uniformly required as a condition of acquiring and retaining membership.
(5 U.S.C. § 7116(c).)
The union is not precluded from enforcing discipline under its constitution and bylaw procedures, consistent with the FSLMRS provisions (5 U.S.C. § 7116(c)).
The union is protected under the FSLMRS if it disciplines:
However, the union may not discipline a member for:

Filing ULP Charges

Pre-Charge Assistance

Before filing a ULP charge, the parties may request RO assistance to identify issues to attempt resolution (5 C.F.R. § 2423.1(a)).

Alternative Dispute Resolution (ADR)

The parties may agree to alternative dispute resolution (ADR) through FLRA's Collaboration and Alternative Dispute Resolution Process (CADR) to resolve ULP disputes. ADR services include:
  • Facilitation.
  • Intervention.
  • Training.
  • Education.
(5 C.F.R. § 2423.2(a)-(b).)
The RD may suggest that the parties engage in ADR (5 C.F.R. § 2423.2(c)).

Accepting ULP Charges

The FLRA's ROs accept ULP charges even when the FLRA does not have a GC and continues:
  • Investigating the ULP charge.
  • Determining if the charge should be dismissed for lack of merit.
  • Encouraging the informal resolution of disputes before and after a charge is filed.
ULP complaints may only be issued by the FLRA GC.

Place for Filing ULP Charges

Federal employees, unions, and agencies may file ULP charges either:
  • By using FLRA's e-file online website.
  • In writing with the RO responsible for serving the area where the alleged ULP occurred.
(5 C.F.R. 2423.6(c).)

Timeframe for Filing ULP Charges

Parties generally must file the ULP charge within six months after the alleged violation occurred, except when the GC finds:
  • The charging party could not file because the other party failed to perform an owed duty.
  • That concealment prevented discovery of the ULP in the six-month period.
(5 U.S.C. § 7118(a)(4)(A), (B).)

Contents of the Charge

The charging party may file a ULP charge by completing the GC's prescribed form (FLRA Form 22 or 23) or a substantially similar form (self-contained document), including:
  • The charging party's name, address, telephone number, and facsimile number, if available.
  • The charged party's name, address, telephone number, and facsimile number, if available.
  • The charging party's point of contact's name, address, telephone number, and facsimile number, if available.
  • A clear and concise statement of the facts alleged to constitute a ULP.
  • A statement of the FSLMRS section(s) and paragraph(s) allegedly violated.
  • The date and place of the occurrence of the alleged violative act(s).
  • A statement indicating if the subject matter raised in the charge:
    • was previously raised in a grievance procedure;
    • was referred for consideration and action to the FSIP, the Federal Mediation and Conciliation Service (FMSC), the Equal Employment Opportunity Commission (EEOC), the MSPB, or the Office of Special Counsel (OSC);
    • involves a negotiability issue raised by the charging party in a petition pending before the FLRA; and
    • was the subject of any other administrative or judicial proceedings, with a description of the results or status of the proceedings.
  • A declaration of truth by the individual signing the charge.
  • A statement indicating that the charging party served the charged party, including:
    • the name, title, and location of the individual served; and
    • the method of service.
  • Any supporting evidence and documents, including:
    • correspondence and memorandum;
    • records;
    • reports;
    • applicable CBA provisions;
    • memoranda of understanding;
    • meeting minutes;
    • applicable regulations;
    • statements of position;
    • additional documentary evidence; and
    • identification of potential witnesses with a brief synopsis of the expected testimony.
(5 C.F.R. § 2423.4.)

The RO Investigation of ULP Charges

When a sufficiently documented ULP charge is filed with the RO, the assigned agent:
  • Investigates the charge.
  • Seeks resolution of the charge through ADR processes.
  • Makes a recommendation to the RD to:
    • issue a complaint;
    • approve a settlement agreement; or
    • dismiss the charge.
(5 C.F.R. § 2423.1.)
During the RO's investigation, all involved parties are given the opportunity to present their evidence and positions (5 C.F.R. § 2423.8(a)).
All parties are required to fully cooperate with the RO during the investigation, including:
  • Making union officials, employees, agency supervisors, and managers available to give sworn or affirmed testimony about the matters under investigation.
  • Producing pertinent documentary evidence.
  • Providing position statements.
(5 C.F.R. § 2423.8(b).)
If a person fails to cooperate in the investigation of a charge, the GC may decide to issue a subpoena on the RD's recommendation for:
  • Witness attendance and testimony.
  • Production of documentary evidence, excluding the disclosure of intra-management guidance, advice counsel, or training:
(5 C.F.R. § 2423.8(c).)
The subpoena (identifying the name and address of the RD and the GC) must be served by an individual that is 18 years or older and not a party to the proceedings, who must certify that the subpoena was delivered:
  • To the witness in person.
  • By registered or certified mail.
  • To the intended responsible individual at the appropriate residence or place of business.
(5 C.F.R. § 2423.8(c)(1).)
Any person intending not to comply with the subpoena must within five days after the date of service:
  • Petition in writing to revoke the subpoena.
  • Serve a copy of the petition to revoke on the GC.
(5 C.F.R. § 2423.8(c)(2).)
The GC revokes the subpoena and makes the ruling a part of the record if:
  • The witness or evidence is not material or relevant to the matter under investigation.
  • The subpoena does not sufficiently describe the evidence sought.
  • There is any legal reason to invalidate the subpoena.
(5 C.F.R. § 2423.8(c)(3).)
If any person fails to comply with a subpoena issued by the GC, the GC determines whether to institute proceeding in the appropriate district court to enforce the subpoena (5 C.F.R. § 2423.8(c)(4)).
To ensure the GC's ability to obtain relevant information, the GC (by policy) protects:
  • The identity of individuals submitting statements and information during the investigation (may be disclosed in preparation for or at a hearing).
  • Against the disclosure of documents obtained during the investigation (may be disclosed in preparation for or at a hearing).
(5 C.F.R. § 2423.8(d).)
Before a complaint is issued, the charging party may amend the charge using the same procedures for filing and serving initial charges (5 C.F.R. § 2423.9).
Following the investigation, the RD may:
  • Approve a request to withdraw a ULP charge.
  • Refuse to issue a complaint.
  • Approve a written settlement agreement.
  • Issue a complaint (when the FLRA has a GC).
  • Withdraw a complaint.
(5 C.F.R. § 2423.10).)

Bars to Filing ULP Charges

5 U.S.C. § 7116(d) bars certain matters from being raised as ULPs, specifically:
  • Issues that can be raised under a statutory appeals procedure.
  • ULPs for issues earlier raised under the grievance procedure.
The FLRA does not assert jurisdiction over a ULP if:
The FLRA asserts jurisdiction when the union filed a statutory appeal on behalf of an employee and then files a ULP based on the same facts focusing on the union's right to protect other employees (U.S. Small Bus. Admin., 51 F.L.R.A. at 422).
An earlier filed grievance prevents the FLRA from asserting jurisdiction when:
  • The ULP and grievance are about the same issue.
  • The issue raised in the ULP was raised earlier under the grievance procedure.
  • The grievance and ULP actions are initiated at the discretion of the same party.
(U.S. Dep't of the Air Force 62nd Airlift Wing McCord AFB, Wash., 63 F.L.R.A. 677, 679 (2009).)
A ULP charge and a grievance involve the same issue when:
  • The ULP charge and the grievance arise from the same facts.
  • The legal theories advanced to support the ULP charge and the grievance are substantially similar.
(U.S. Dep't of the Army, Army Fin. & Accounting Ctr., Indianapolis, Ind., 38 F.L.R.A. 1345, 1351 (1991).)
The selection of the grievance or the ULP procedure must be at the aggrieved party's discretion to be barred by 5 U.S.C. § 7116 (d) (Equal Emp't Opportunity Comm'n & Am. Fed'n of Gov't Emps., Council of EEOC Locals No. 216, 53 F.L.R.A. 465, 472 n. 9 (1997)).
The FLRA looks at who the aggrieved party is and whether the party had any choice about filing a ULP or grievance, even if the aggrieved party did not formally file the charge (Army Finance, 38 F.L.R.A. at 1353-54).
If a union files a ULP that does not seek relief for the employee, the ULP is not barred by an employee's grievance (McChord AFB, 63 F.L.R.A. at 679). The Supreme Court ruled in Cornelius v. Nutt that a union can file a ULP charge to enforce its own independent right even if an employee previously filed a grievance based on the same issues to enforce individual rights (472 U.S. 648, 655 n. 20 (1985)).