GRIEVING ULP CHARGES

While the traditional place to file a ULP allegation is with the FLRA, there are considerable advantages to grieving it—especially if you make some small changes in your contract grievance procedure.

The law gives unions the statutory right to address a ULP allegation through the FLRA or through its negotiated grievance procedure. (5 USC 7116(d))  Traditionally, unions have filed them with the FLRA General Counsel because 1- they assign investigators to gather evidence, 2- unions have six months to file the charge from the day they became aware of it rather than the typical 15 day time limit for a grievance, and 2- the FLRA litigates the case for free before an ALJ, the Authority, any circuit court or even the Supreme Court.  But there are a lot of reasons not to file the charge with FLRA.

First, FLRA has total control over whether to take the case to a hearing.  If it does not want to, your case is over.  Second, even if it files an official complaint against the agency, it has total control over whether to settle for what the agency offers, e.g., just a promise not to violate the law again. Third, even if the case goes to hearing, the FLRA is notorious for pursuing weak remedies. What you think should require back pay, FLRA can decide is worth nothing more than a posting and some retroactive bargaining. Fourth, if the incident involves not just a potential ULP, but also contract and potential civil rights violations, FLRA generally will only pursue the ULP.  The rest of your case is dropped. Consequently, there are many times that it makes more sense to pursue the ULP through the grievance procedure–even if you have to pay for arbitration.

For example, suppose that an Hispanic woman has her career ladder promotion delayed and you believe it is because management is punishing her for a recently filed grievance. But you have also noticed that the agency probably violated a contract requirement and that the selecting official who interviewed her asked her several questions about how an Hispanic employee would handle certain situations that she did not ask other candidates. In short, you have ULP, EEO, and contract allegations.

The law (5 USC 7116(d)) does permit you to split the case up filing the ULP with FLRA, the discrimination allegation through the EEO charge process, and the contract matter as a grievance. While some see that as tripling your chances to win, others argue that doing so hurts the case because evidence will be split up among the three cases and no judge or arbitrator will get to see the entire case.

A very good alternative is to file a grievance alleging all three kinds of violations. Here are the advantages of that.  First, the union decides whether to take the case or just a portion of it to arbitration.  Second, one judge gets to look at all the evidence and see the big picture.  Third, you have some control over who the neutral decision-maker is. Neither EEOC nor FLRA will let you strike judges you do not like from your case. Fourth, generally arbitrators are more likely to grant back pay than those agencies are, that includes attorney fees if the employee is given retroactive salary or leave.

If the union makes some small changes in its contract, such as the following, grievances become even better options:

• Get the right to file a ULP grievance for the same six month period you have if you file it with FLRA.  The best argument for that is that if you are limited to just 15 or 30 days it takes away the right you have in law to choose where to file a ULP for six months after learning of it. A wise management negotiator should not oppose this demand because it keeps other government agencies out of his or her agency, it means the union has to shoulder generally half the cost of a hearing, and it means the agency only has to defend against one case rather than multiple slices of the same case.  For example, if a particular management group regularly fails to invite the union to formal meetings, the union can file them as annoying individual grievances or it can bundle all the incidents in six months together and file one, more significant case looking for a tougher penalty than a posting.
• Another contract change to pursue is that management pay all or most of the arbitrator’s fees when it is found guilty of violating law.  Several courts have taken the position that where a private sector employer requires its employees to take alleged violations of law to an arbitrator rather than the government or courts, it is a violation of the employee’s due process rights to require he or she pay anything more than a nominal amount for the arbitration.   It is time that federal sector unions made the same argument. After all, if the union has to pay for arbitrating a ULP does that not have a chilling effect on the choice it is supposed to have under 5 USC 7116(d)?

(This was originally posted on 9/4/11.)