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UNFAIR LABOR PRACTICES (ULPs)
The Office of the General Counsel (OGC), through the seven Regional Offices, investigates, settles, and prosecutes ULP charges. Below are FAQs pertaining to the ULP process with appropriate links to the Regulations and Statute. If the answer to your question is not provided, please contact the Regional Office within your jurisdiction.
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Before a charge is filed will the Regional Office provide technical assistance?
Are there any time constraints with respect to when a charge must be filed?
Are there other reasons why you may be prevented from filing a charge?
Must you attach supporting evidence and documents to the charge?
What documents should you prepare or gather to support a charge?
What should you be prepared to discuss during the initial contact with the Regional Office Agent?
What happens if the charging party fails to cooperate during an investigation?
POST-ISSUANCE OF ULP COMPLAINT
What happens after a Regional Director issues a ULP Complaint and Notice of Hearing?
How long after issuance of complaint does a respondent have to file an answer?
How long after issuance of complaint will the hearing take place?
After issuance of a complaint and notice of hearing, are attempts still made to reach a settlement?
Before a charge is filed will the Regional Office provide technical assistance?
Yes. Each Region is available to provide various types of technical assistance such as:
General explanation of the rights and obligations under the Statute;
Explanation of the ULP procedures under the Regulations;
Furnishing various forms and reasonable technical assistance regarding the completion of the forms, including drafting language describing the basis of the charge
Providing public written materials as well as helping to locate information at the FLRA web site: http://www.flra.gov/.
"Any person may charge an activity, agency or labor organization with having engaged in, or engaging in, any unfair labor practice prohibited under 5 U.S.C. 7116." Section 2423.3 of the Regulations. A person can be an individual, labor organization, or agency. 5 U.S.C. 7103.
If you decide to file a charge, what should you file?
If you decide to file a ULP charge, you should complete Form 22 if the charge is against an Agency, or Form 23 if against a Labor Organization. The back of these forms provides instructions for completion. You should provide a clear statement of the ULP allegation which includes specific sections of the Statute allegedly violated. Be as succinct as possible, i.e., longer is not necessarily better. See section 2423.4 of the Regulations. Make sure to complete the certificate of service section of the form by indicating the method of service and name, title, location and the date that service is completed. You need only file one copy of the charge.
Where should you file your charge?
A charge should be filed with the Regional Director for the Region in which the alleged ULP has occurred or is occurring. If the alleged ULP is occurring in more than one Region, you may file a charge in any of the Regions where the alleged ULP is occurring. If you are unsure which Region has jurisdiction over the charge, consult the Regional Map.
Are there any time constraints with respect to when a charge must be filed?
Yes. Normally a charge may not be acted upon if the alleged ULP occurred more than six months before the filing of the charge. 5 U.S.C. 7118(a)(4)(A). Consult section 7118 of the Statute for exceptions to this rule.
Are there other reasons why you may be prevented from filing a charge?
An agreement between a union and an activity, which contains a requirement for pre-charge filing, notification, or settlement efforts, is enforceable. Therefore, if your collective bargaining agreement contains a pre-charge notification requirement, you must follow the terms of that agreement and first notify the agency or union before you file a ULP charge. A pre-charge notification is not applicable to individuals who seek to file a charge.
Under section 7116(d) of the Statute, a charge may be barred by a previously-filed grievance if the alleged ULP arose from the same set of factual circumstances as the grievance and the legal theory supporting the charge and the grievance are substantially similar.
Must you attach supporting evidence and documents to the charge?
Yes. Supporting evidence and documents must be submitted to the Regional Office at the same time. See section 2423.4(e) of the Regulations. Once a charge has been filed, you will be advised if any additional evidence and documents are needed.
What documents should you prepare or gather to support a charge?
You should prepare a witness list with a brief description as to what each witness will testify to, and include a telephone number for each witness. You should also have available the collective bargaining agreement and other relevant supporting documents and be prepared to discuss what your underlying interest is in filing the charge -- what are you seeking and why.
Yes. However, a charging party assumes responsibility for receipt of the charge, including the risk of a fax machine malfunctioning.
What happens if you file a charge in the wrong Region?
The Region which has received the charge will fax it to the proper Regional Office with jurisdiction over the charge. Incorrect filing may delay the start of any investigation.
Is it possible for your charge to be transferred to another Region even though you filed in the proper Region?
Yes. The OGC reserves the right to reassign workload at its discretion. Any reassignments are made to most efficiently and effectively process cases.
Is there a page limitation to the charge?
No, except fax filings have a two-page limitation. In any event, you are encouraged to be succinct.
After a charge is filed what does the Regional Office look for when it reviews the charge?
The Region reviews each charge for sufficiency. The charge will be deemed deficient and returned to the person who filed it if any of the following are present: (1) There is no signature; (2) the charging party or charged party is not identified; (3) there is not at least some basis for the charge stated; or (4) the matters in each block of the charge are not addressed in some way.
If the review does not uncover any deficiencies, the charge is docketed and is given a number.
When the Region reviews a new charge will it consider whether injunctive relief should be sought even if not requested?
Yes. The substance of every charge is reviewed to determine whether the purposes of the Statute would be frustrated if the status quo (existing) is not maintained while the charge is investigated in the normal manner. In those extraordinary circumstances that require that the status quo be maintained, the General Counsel may seek approval of the Authority's Members to seek appropriate temporary relief in a United States District Court. In this regard, the General Counsel first conducts an initial inquiry with the charging party and also determines whether to conduct an expedited investigation. Then the General Counsel determines if the charge has merit, and if so, whether to seek approval of the Authority Members to seek a temporary injunction. Even after an investigation begins, a determination may be made to seek appropriate temporary relief. See section 7123(d) of the Statute which sets forth the criteria for granting appropriate temporary relief.
What is the purpose of an investigation?
A Region determines which, among many methods of investigation, best achieves the objectives of: (1) developing all relevant factual evidence to assist the Regional Director in making a determination on the merits of the charge; and (2) providing fair and consistent application of OGC policies and procedures.
When does the investigatory process begin?
After the Regional Director sends out an opening letter to the parties the case is assigned to an Agent. The Agent becomes familiar with the case file and then contacts both parties' representatives by telephone or in writing to begin the investigatory process.
What should you be prepared to discuss during the initial contact with the Regional Office Agent?
The purpose of this contact is for the Agent to introduce him/herself to you and to explain the ULP process. Among other things, you make be asked to:
clarify the issues underlying the charge
send certain documents to the Region
make available certain documents if there is an on-site investigation
prepare a witness list with a short description of what information the witness will provide
complete a questionnaire to be returned to the Region
provide an assurance or cooperation during the investigation
What happens during an investigation?
The Region seeks to determine the factual basis underlying each ULP charge. Depending upon the circumstances of the case, the investigation may consist of:
taking affidavits and documentary evidence in person
taking a sworn affidavit by telephone
requesting the completion of sworn interrogatories by mail
requesting the completion of unsworn questionnaires by mail
confirming, in writing, information a Regional Agent receives orally
What happens if the charging party fails to cooperate during an investigation?
A charging party is required to cooperate with the investigation of a charge. See section 2423.8(b) of the Regulations. Cooperation includes:
making charging party wtinesses available to give sworn/affirmed testimony
producing documentary evidence requested
If a charging party fails to cooperate, the charge will be dismissed for lack of cooperation.
How does a charged party cooperate during an investigation?
Section 2423.8(b) contemplates that a charged party will cooperate with an investigation so that the Regional Director will have the best evidence upon which to rely in making a merits determination. Among other things, a charged party cooperates by:
arranging for official time for the interview of employee witnesses
submitting a position statement
making management witnesses available
submitting documents upon request
providing background information
When is an investigation considered complete?
Every case is different in some way. However, the same rule applies with respect to the investigation of each case: an investigation is considered complete when the record contains sufficient information for a Regional Director to render a determination on the merits of the charge. Therefore, if it has been determined that the charge is untimely, it is possible that an investigation will be terminated even before the taking of any witness statements. However, there are other cases where it is necessary, in order to complete an investigation, to arrange an on-site investigation to take witness statements and to obtain documentary evidence so that record contains sufficient evidence on all of the elements of proof of each allegation of the charge. It is important to note, in keeping with the General Counsel's neutral posture in each case, that this includes any evidence that may refute the allegations.
After an investigation has been completed, what happens next?
Once the investigation has been completed, the Regional Director considers the evidence and makes a decision.
What options does a Regional Director have with respect to making a merit determination on the charge?
Absent settlement, if the charge has merit, the Regional Director will issue a complaint and notice of hearing before an Administrative Law Judge.
If the Regional Director determines that the charge does not have merit, s/he will issue a dismissal letter, absent withdrawal by the charging party.
It is also possible that the Regional Director may issue a dismissal letter with respect to certain allegations and issue complaint with respect to one or more of the other allegations.
Will the Regional Director explain in a dismissal letter the basis for making the decision to dismiss the charge?
Yes. Each Regional Director's dismissal letter is required to set forth the facts; applicable law with case citations for your reference; application of the law to the facts in the case; conclusion; and a paragraph explaining your appeal rights to the General Counsel. See Appeals FAQs.
Will you be given an opportunity to withdraw a charge before the Regional Director issues a dismissal letter?
Yes. It is OGC policy to give each charging party an opportunity to withdraw the charge before the Regional Director issues a dismissal letter.
Is it possible that the Regional Director will dismiss your charge even if it has been determined to have merit?
A Regional Director may exercise prosecutorial discretion to dismiss a meritorious charge if s/he determines that litigation would not advance or further the purposes and policies underlying the Statute. If this determination is made the dismissal letter will discuss the criteria which the Regional Director relied upon to make this decision.
POST-ISSUANCE OF ULP COMPLAINT
What happens after a Regional Director issues a ULP Complaint and Notice of Hearing?
The case is assigned to a Trial Attorney in the Regional Office who reviews the case file and begins to prepare the case for a hearing before an Administrative Law Judge.
How long after issuance of complaint does a respondent have to file an answer?
A respondent has 20 calendar days after the date of service of a complaint to file an answer to each allegation contained in the complaint.
How long after issuance of complaint will the hearing take place?
Generally, absent settlement, a hearing will be held within two to three months after issuance of a complaint.
After issuance of a complaint and notice of hearing, are attempts still made to reach a settlement?
Yes. This may occur in many ways. As always, the parties are encouraged to reach a settlement on their own, if possible. Often, though, the Agent's involvement in working with the parties is necessary to arrive at a settlement.