Conduct prohibited by federal law regulating relations between employers, employees, and labor organizations. Before 1935 U.S. labor unions received little protection from the law. Employers used many tactics to prevent employees from joining unions and to disrupt union activities in the workplace. The passage of the National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act (29 U.S.C.A. § 151 et seq.), marked the beginning of affirmative federal government support of unionization and collective bargaining. The NLRA prohibits employers from taking certain actions against their employees and the unions that represent them. A prohibited action is called an unfair labor practice.
Management Unfair Labor Practices
Section 7116(a) of the Federal Service Labor-Management Relations Statute (see Title 5 of the US Code) provides that it is an unfair labor practice for management to:
- interfere with, restrain, or coerce employees in the exercise by the employee of any right under this chapter;
- encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment;
- sponsor, control or otherwise assist any labor organization, other than to furnish, upon request, customary, and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status;
- discipline or otherwise discriminate against an employee because the employee has filed a grievance, complaint, affidavit, or petition or has given any information or testimony under this chapter;
- refuse to consult or negotiate in good faith with a labor organization as required by this chapter;
- fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter;
- enforce any rule or regulation (other than a rule or regulation addressing prohibited personnel practices) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulations was prescribed; or
- otherwise fail or refuse to comply with any provision of this chapter.
Unfair labor practices under these sections can be caused by numerous activities on the part of management. While not all inclusive, some examples associated with each of the sections include:
1. The charge of interfering with an employee’s rights under the Statute is a derivative violation — if an individual violates any section of the Statute, they also violate this one. Examples of this type of violation would be disciplining an employee for filing a ULP or lowering someone’s performance appraisal because they filed a grievance.
2. Encouraging or discouraging union membership is demonstrated when managers fail to promote, higher, train, etc., because of the employee’s union activites. This section is violated not only when management takes some action against an employee for union activities, but also when management only threatens to take some action which ultimately has a chilling effect on the employee’s right to join and assist the labor organization.
3. We don’t see a lot of sponsoring and controlling of a union by management. This usually arises during an election campaign between two unions. One union might claim that management was doing special favors for the opposing union and, thus, sponsoring that union.
4. This is pretty straight forward; supervisors can’t take any action against an employee for filing or participating in a ULP procedure. That is, don’t give an employee a worse assignment or a lower performance rating because he or she testified in a ULP hearing.
5. Refusing to bargain in good faith is the most common ULP. This section includes such actions as management unilaterally making a change in the employees’ conditions of employment without affording the union an opportunity to bargain. This charge also addresses management’s failure to engage in mid-term bargain, failing to furnish information to the union that they are entitled to, and bypassing the union by dealing directly with the employees regarding their conditions of employment.
6. Failing to cooperate in impasse proceedings is another straight forward section. If, during negotiations, the parties reach impasse (that is, they are unable to reach agreement through negotiations), either party can request the services of the Federal Service Impasses Panel. The Federal Service Impasses Panel is an outside agency responsible for resolving impasse in the Federal government. Once timely invoked, management must participate in its proceedings and implement its decision. Failure to do so is a ULP.
7. This section, enforcing a rule issued after the agreement goes into affect, provides that if an agency or government-wide rule or regulation is issued after the effective date of the parties’ collective bargaining agreement and the two conflict, absent some specific contract language, the contract supersedes the new regulation and must be followed. Of course, once the contract comes up for renewal, it must be brought into conformance with the current regulations.
8. The last section is a catch-all section. If management violates any provision of the Statute not mentioned above, it shall be a ULP. Some examples would be failing to honor employees’ automatic dues withholding requests, failing to invite the union to a formal discussion, etc.
Union Unfair Labor Practices
Section 7116(b) of the Federal Service Labor-Management Relations Statute (the Statute) defines those actions which, if taken by the union, would result in a ULP. Many of these are identical to the sections which define management ULP’s. The Statute provides that it is an unfair labor practice for the union to:
- interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; — this is the same as management’s charge. Neither management nor the union can interfere with employees’ rights under the Statute.
- cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter; you won’t see this too frequently. — Here, the union would request that management take some action against an employee because he or she took some action under the Statute.
- coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member’s work performance or productivity as an employee or the discharge of the members duties as an employee; — pretty straight forward but, again, not something seen very frequently
- discriminate against an employee with regard to the terms of conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or non preferential civil service status, political affiliation, marital status, or handicapping condition;– this is an internal union charge where someone was denied union membership because of non-merit reasons
- refuse to consult or negotiate in good faith with a labor organization as required by this chapter;– this is the same charge as in the management ULP section; the union must bargain in good faith
- fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter;– again, this is the same requirement as in management’s ULP section
- to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency’s operations, or– now this one’s a little more interesting.
- Unions cannot participate in, nor call for, a strike. In fact, once notified of the possibility of a strike, work stoppage or slowdown, the union must take positive steps to avoid any such activity by bargaining unit members. On the other hand, the union and employees can engage in informational picketing so long as it does not interfere with the agency’s operations. Employees cannot engage in informational picketing while on duty time. They can do so while at lunch, on leave or before or after work.
- otherwise fail or refuse to comply with any provision of this chapter.– the same general catch-all as in management’s ULP section.