Remedies For Unfair Labor Practices

When the Union files an unfair labor practice charge to contest that the Agency’s actions violated the Federal Service Labor Management Relations Statute, it is important to consider the types of remedies that should be requested. 5 USC 7118(a)(7) describes the Federal Labor Relations Authority’s (FLRA) ability to remedy an unfair labor practice, including ordering a union or an agency to: 1) cease and desist from the unfair labor practice conduct, 2) renegotiate a collective bargaining agreement consistent with its order and giving the amended agreement retroactive effect, 3) reinstate employees with back pay as appropriate, and 4) take any combination of those actions or other action that will carry out the purpose of the Statute. There are traditional and non-traditional remedies that the Union can request in an unfair labor practice case.

Presuming that the FLRA determines there is a violation of the Statute, the FLRA will usually require two traditional remedies: 1) a requirement that the Agency cease and desist from conduct that violates the Statute and 2) a requirement to post a Notice to employees for 60 days. The Notice informs employees that the Agency will fulfill its obligations under the Statute and that employees’ rights will be protected. Non-traditional remedies may be granted when traditional remedies are not adequate given the egregious nature of the violation and the seriousness of the Agency’s actions. Non-traditional remedies may also be granted if they can “recreate the conditions and relationships with which the unfair labor practice interfered, as well as effectuate the policies of the Statute, including deterrence of violative conduct.” The distribution of the Notice, the method of posting the Notice, and the signatory of the Notice are matters that the Union can raise with the FLRA in order to obtain the best outcome.

Notices are signed by an Agency official and posted for 60 days in all places where notices are normally posted. Usually the FLRA requires that the Notice will be posted on all official bulletin boards, including any bulletin boards where employees in the bargaining unit represented by the Union are located. In instances where the FLRA deems that the posting will not fully satisfy the purposes of a Notice, a non-traditional method of distribution may be required. Examples of non-traditional methods of distribution include: distribution of the Notice to supervisors, managers, and employees, additional distribution of the Notice by electronic mail, and a requirement that the Notice be read to employees, supervisors, and managers.

The FLRA requires the Notice to be signed by the “highest official of the activity responsible for the violation” (i.e., the highest ranking official at the office/facility where the violation took place). While the Union may want to suggest a specific person to sign the Notice, the FLRA’s interest is to ensure the intent of the Statute is met, not to punish the management official who violated the Statute. The FLRA will consider the extent that the Agency’s actions affected employees when determining how broadly the Notice must be posted. The Union should consider the scope of the posting when advocating for the best remedy possible. For example, the FLRA limited a posting to one location when a manager made a unilateral change for that one location. In contrast, the FLRA has expanded the area of posting the Notice when higher level Agency officials were involved in directing and coordinating the action at issue in the unfair labor practice charge that took place at the a lower level within the Agency. Therefore, the Union should request broad coverage for a Notice posting when a violation occurred in several places, when the effect of the Agency’s action is widespread, or the responsible management official is from a high level of the Agency.

Furthermore, the Union may request “other action” to be taken as part of the remedy. The other action requested depends upon the violation of the Statute. Some examples are provided below.

In an unfair labor practice charge alleging a failure to bargain and unilateral implementation, the Union may request a status quo ante remedy and a bargaining order. A status quo ante remedy requires the Agency to recreate the conditions that existed before the unlawful change. When the requirement to bargain is mandatory, status quo ante relief is provided unless special circumstances exist. When bargaining is only over impact and implementation, the FLRA will determine whether to issue a status quo ante remedy based on an examination of the facts in order to balance the circumstances of the violation against the amount of disruption for the Agency to return to the status quo. A bargaining order ensures that negotiations take place. Another type of remedy for a bargaining violation is a retroactive bargaining order where upon reaching agreement, the terms are applied retroactively. Moreover, the Union may request make whole relief for employees harmed by the unlawful change.

In an unfair labor practice charge alleging a failure to provide representation in an investigatory interview, the Union may request that information obtained in the interview is not relied upon and used against the employee. The Union should request that no information will adversely affect the employee in the future and that nothing learned from the interview is maintained in his/her records that could adversely affect him/her in the future. Alternatively, the Union may request that the Agency repeat the investigation and allow the employee representation.

In an unfair labor practice charge alleging a failure to provide information, the Union can request that the Agency immediately provide the information to the Union. Additionally, the Union may request a non-traditional remedy of an order that any actions (e.g., response to a proposed action, grievance deadline) are extended due to the delay caused by the Agency in providing the information.

In an unfair labor practice charge alleging discrimination based on union activity, the Union can request that the Agency rescind the unlawful action and make employees whole.

In conclusion, be sure to carefully consider the types of traditional and non-traditional remedies available in unfair labor practice matters.