Unfair Labor Practices: Union Bypass or “Direct Dealing”

Mar 1, 2016

This installment of NATCA’s Know Your Rights series will explain the unfair labor practice known as “union bypass” or “direct dealing.” In both private and public sector labor law, the union is a sole legitimate collective bargaining representative. As such, it is illegal for management to engage in negotiations over terms and conditions of employment with individual bargaining unit employees. Nevertheless, from time to time management does exactly that, and NATCA representatives and members should be aware that such attempts to bypass the union are illegal and can undermine the union’s effectiveness if left unchallenged.

Legal Standard

Federal Sector:

As the exclusive representative, the federal sector union stands as partner with management in collective bargaining. Management impairs that bargaining relationship if it deals with employees directly about negotiable working conditions or the impact of changes in those working conditions upon bargaining unit employees. Direct dealing with employees violates Section 7116(a)(5) of the Federal Services Labor Management Relations Act.

Disregarding the union and attempting to deal with employees individually concerning grievances and personnel policies and practices are acts in derogation of the representative’s right to represent employees. IRS and NTEU, 4 FLRA 488, 497 (1980).

In determining whether a communication amounts to an attempt to bypass the union, the communication must be judged independently, and it must be ascertained whether that communication constitutes, for example, an attempt by agency management to deal or negotiate directly with unit employees or to threaten or promise benefits to employees. Both the content of the communication and the circumstances surrounding it must be considered. Not all communications between agency management and unit employees over matters relating to the collective bargaining relationship are improper. Communications violate the statute when they amount to an attempt to bypass the representative and bargain directly with employees, urge employees to put pressure on the representative to take a certain course of action, or threaten or promise benefits to employees. Div. of Military and Naval Affairs, State of New York, and New York State Council of ACT, 8 FLRA 307, 321-22 (1982).

Examples of bypass include:

• Asking individual employees for their views concerning development of a new watch or work schedule and soliciting their assistance in establishing alternative schedules. Dept. of Transp., FAA, Los Angeles and PASS, Local 503, 15 FLRA 100, 103-04 (1984).

• Memos sent by management directly to employees soliciting their comments on accountability plans (essentially performance standards) constituted unlawful bypass of the union. DHHS, SSA, Dallas Region and AFGE, Nat’l Council of SSA Field Operations Locals, 23 FLRA 807, 813 (1986).

• Asking employees by memo for their opinions concerning a proposed change in conditions of employment accomplished by eliminating an evening shift on weekends, and by soliciting their opinions again on the subject in a follow-up memo and meeting. Dept. of Transp., FAA and PASS, 19 FLRA 893, 895 (1985).

Private Sector:

The principle of bypass or direct dealing is the same in the private sector as in the federal sector. The duty to bargain “requires recognition that the statutory representative (i.e. the union) is the one with whom the employer must deal in conducting bargaining negotiations, and that it can no longer bargain directly or indirectly with the employees.” General Electric Co., 150 NLRB 192, 194. (1964). Direct dealing with employees violates Section 8(a)(5) of the National Labor Relations Act.

Examples of direct dealing include:

• Promising benefits to employees if they change bargaining agents. Hancock Fabrics, 294 NLRB 189 (1989);

• Directly discussing matters up for negotiation with striking employees. Outdoor Venture Corp., 336 NLRB 1006 (2001);

• Dealing directly with employees in an attempt to alter contract terms. Standard Fitting Co. v. NLRB, 845 F.2d 1311 (1988);

• Conducting surveys of employees while refusing to bargain with the union. American Commercial Barge Line Co., 296 NLRB 960 (1989).

Remedies:

In both the federal and private sector, a finding that the employer engaged in bypass or direct dealing will result in a “cease and desist” order, the posting of a notice that the employer violated the law, and a status quo ante remedy, i.e. a return to work conditions before the direct dealing occurred.

Conclusion:

Although it should be clear to employers in the federal and private sectors that the union is the sole collective bargaining representative, from time to time management acts either in ignorance or defiance of the law. In those instances, NATCA facility representatives and members should be aware of what constitutes bypass or direct dealing and take the appropriate action. Direct dealing undermines the very essence of the union’s purpose and the decision of the employees when they selected union representation to negotiate collectively. Allowing direct dealing to occur undermines the hard-won gains contained in your collective bargaining agreement. Contact your regional vice president or the NATCA Labor Relations office if you suspect that the employer has committed an unfair labor practice.