HOW A GRIEVANCE CAN ALSO ALWAYS BE A ULP

The two Trump appointees are on the FLRA solely to weaken unions and collective bargaining and their favorite weapon is to overturn arbitrations case that employees win.  They have been able to take tens of thousands of dollars in victories employees have won because of union error. Unless a grievance over a contract, regulatory, or statutory violation includes an unfair labor practice allegation unions cannot take the FLRA to court to have federal judges force the two Trumpettes follow the law. Consequently, every time a union files a grievance it should try to also allege a ULP violation. Here is how that can be done.

Suppose an employee complains that recent overtime work was distributed in violation of the labor agreement’s obligation to do so in seniority order. Most unions would file a grievance alleging a violation of that contract provision, but they can also allege a ULP.

For example, at the time the union files the grievance it usually has no idea why the manager might have not followed the negotiated seniority order when denying the grievant overtime.

• It might be because the manager is punishing the employee for recently supporting the union in another case, which is a violation of ULP section 5 USC 7116(a)(1) that prohibits taking retaliation against an employee for assisting a union, or
• it might be because the manager has decided to not follow the contract in situations like the recent overtime presented, which is a violation of 5 USC 7116(a)(1) and (5) that bar a manager from “repudiating” an agreement provision, or
• it might be because the supervisor has decided the replace the traditional seniority rule with a new definition of seniority, which is a violation of ULP section 7116(a)(1) and (5) that make it illegal to unilaterally change a practice or policy without notifying the union in advance and bargaining.

Because the union has not yet fully investigated the overtime incident when the time comes to file the grievance to rule out any of those possibilities, it should protect the employee by alleging each of those ULP violations in its initial grievance. If the union does not, under current FLRA case law it likely loses the chance to file a ULP later with the FLRA under its interpretation of 5 USC 7116(d).  Under Trump’s appointees that bars a union from raising different claims over substantially similar facts in more than one forum.  For example, a union can’t grieve the contract obligation to invite it to formal discussions and then file a ULP charge with FLRA over the same facts. Another reason is that if the union waits until it has evidence of these violations it risks management claiming it missed the grievance filing deadline.  The current FLRA loves to dismiss grievances for that reason.

But the core reason is that if the union alleges a ULP violation, even if the arbitrator rejects it, the union can take any adverse FLRA decision to the federal courts to review and toss out the FLRA decision. That is exactly what the National Weather Service Employee’s Organization (NWSEO) did in a recent case. The union grieved contract and ULP violations, the arbitrator upheld the contract violation while rejecting the ULP allegation, and the FLRA’s two Trump appointees did what they almost always do by overturning the union’s victory on the contract issue.  Fortunately, because the union protected itself when it filed the initial grievance by alleging a ULP it was able to ask a federal court to review FLRA’s decision. When the court did, it overturned FLRA reinstating the arbitration win because the Trumpettes had violated the law.

BOTTOM LINE: Add a ULP allegation to every grievance filed.  The three violations described above of 5 USC 7116(a)(1) and (5) should apply nearly every time anything else is grieved. If you are wrong or change your mind, you can always drop the claim during the grievance. Check with your union attorneys and experts if you have any doubt.  But so long as Trump’s appointees control the FLRA, it borders on negligence for a union not to protect an employee’s grievance from the political retribution FLRA is handing out