GRIEVING NON-SELECTION FOR PROMOTION (Part 3-ULPs)
Another kind of discrimination management must avoid is anti-union animus or discrimination. Title 5 USC 7116(a)(2) makes it an unfair labor practice for management “to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.” Consequently, if there are any reasons to believe that the grievant was not selected because of her union activity the union should charge management with this ULP violation in the grievance. If the grievant is a union representative, the union should level this charge unless it is certain that it could not be true. That protects it while it obtains the promotion file and investigates during the grievance.
Like civil rights or EEO discrimination, there is a prima facie test for this too. It goes like this. The union “…establishes a prima facie case of discrimination in violation of § 7116(a)(1) and (2) of the Statute by demonstrating that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency’s treatment of the employee.” Once the union makes the required prima facie showing, “an agency may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of the protected activity.” 59 FLRA 956 This is also called the Letterkenny test, after the location of the 1990 case that first established this test. 35 FLRA 113 An important point to remember is that the test is not whether there were legitimate reasons to pass over the union activist, but whether the preponderance of the evidence shows that management would not have selected the union activist even if there was no dislike of the union or its representatives. 59 FLRA 956 That is a tough standard to meet.
Here are a couple of examples of how a union turned the ULP charge into a retroactive promotion for the union activist.
In this first example, the union’s approach was to show that the grievant was better qualified than the selectee. Based on the evidence, the Arbitrator found that there was no record that the grievant, who happened to be an active union steward, lacked any of the qualities that the selectee possessed, that the grievant possessed additional relevant qualities that the selectee did not possess, that the grievant had over 20 years of troubleshooting experience, a duty the selecting official admitted would be required in the position, while the selectee had none, and finally, that the grievant possessed master electrician certificates, which although not required, indicated his superior qualifications, as compared to the selectee, who had no master electrician certificates. In short, there was no legitimate reason to pass over the union steward other than anti-union animus. The arbitrator ordered the agency to retroactively promote the grievant and FLRA upheld the decision. 62 FLRA 419
Another important precedent from this case is the FLRA statement that, “anti-union animus on behalf of one management official has been imputed to the company, even though the management official who actually took the adverse action did not share that animus.” In other words, the union does not have to prove that the selecting official actually resented the union; it is enough to prove that other managers with a relation to the selecting official resented it.
A second way unions have met the prima facie test is to show that the selecting official has said or done something to show his dislike of union activity. In 48 FLRA 1098 the union showed that the selecting official made these statements to the grievant shortly before he was appointed the selecting official, “How do you expect me to give you that WG-6 job and you fighting against me like you are?” and then exclaimed that if in the future the grievant “. . . even mentioned the Union’s name, you won’t get the job anyway.” 43 FLRA 1414 The grievant got retroactive promotion.
A third way to make this allegation stick is to show that there were so many procedural irregularities in how management conducted the promotion action that it created a highly suspicious appearance. Therefore, nothing management said was believable. 35 FLRA 113
Coincidently, when the agency deviates from the regular promotion procedures or even implements new procedures in connection with a promotion action wherein the union activist was passed over, there is another unfair labor practice charge the union should make. It should allege that management made unilateral changes in working conditions without notice to the union and bargaining. That is a violation of 5 USC 7116(a)(5). For example, if the employee suddenly changes who the selection official is to be, that can be a ULP. If it changes the promotion criteria, adds or drops an interview, or even examines criteria never considered before they also can be ULPs. Generally, the law will require that even if there was no union animus that the agency rerun the action using the former procedures and make a new selection with back pay. 61 FLRA 226 If a unilateral change is found in a union discrimination case that just makes it harder for management to prove the employee would not have been selected.
(Tomorrow FEDSMILLwill explain how the union can benefit from forcing management to comply with certain government-wide regulations management would prefer to forget about. But remember, FEDSMILL is not offering legal advice. Get an attorney if you need that.)