Union’s Appeal of ULP Dismissal in Case # SF-CA-05-0357
September 9, 2005
To: General Counsel
Federal Labor Relations Authority
Office of the General Counsel
1400 K Street NW, Second Floor
Attention: Appeals
Washington, D.C. 20424
RE: ___________ Passport Agency Unfair Labor Practice filed April 18, 2005
NFFE Local 1998 formally appeals to the Authority to reverse the decision to not issue a complaint in this case. We ask the Authority to rethink its circumstantial/deadline justifications for determining that the former MANAGER Z’s cancellation of an approved training class for Union Senior Steward UNION REP A was unrelated to UNION REP A’s union activity.
The San Francisco FLRA office refused to issue a complaint on the following basis:
1) The ULP was not timely filed; and, even if it was –
2) The Union has not established a prima facie case that:
a. The employee against whom the alleged discriminatory action was taken was engaged in protected activity; and
b. Such activity was a motivating factor in the agency’s treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment.
We contend that the ULP charge was timely filed. The MANAGER Z admitted, after previous multiple denials, to UNION REP A that he had cancelled UNION REP A’s course enrollment. This admission came on February 25, 2005. The Union filed the ULP on April 18, 2005. Clearly this is within the 6-month deadline required by 5 U.S.C. 7118.
The decision by the San Francisco FLRA office to deny the ULP was based on that office’s view that any alleged ULP was committed on August 26, 2004, the date which UNION REP A found out he was dropped from the training course.
Yet, UNION REP A had no knowledge on that date that he had been dropped from the course based on his protected union activity, so it is not reasonable for the clock to have started ticking on that date. UNION REP A only knew at that time that MANAGER Z said that Human Resources had cancelled his enrollment, while Human Resources said MANAGER Z had cancelled it. This was literally a “he said/she said” situation, and UNION REP A had no factual basis for determining who had cancelled him from the course. In addition, neither Human Resources nor MANAGER Z offered an explanation for the cancellation of the course.
The date that the connection between the union activity and course cancellation was revealed, and the date that the truth was revealed regarding who had initiated the course cancellation, was February 25, 2005. If the Union had filed a ULP prior to that date, obviously it would have been denied since the Union had no evidence that MANAGER Z had cancelled the course and had no evidence that he had done so in retaliation for protected union activity. It is our position that there was a continuing Unfair Labor Practice being committed by MANAGER Z against UNION REP A from August 26, 2004 (if not earlier) until February 25, 2005.
According to 5 U.S.C. 7118(a)(4)(B):
If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of--
(i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6- month period, the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice.
So, even if August 26, 2004 would properly be considered the date of the ULP, then it is our position that the General Counsel may issue a complaint based on our charge by virtue of the reasons listed in the above portions of the Statute.
Former MANAGER Z performed both violations (“i” and “ii”) referenced in 5 U.S.C. 7118(a)(4)(B) by providing intentionally inaccurate information to UNION REP A over the true nature of the course cancellation. The comments made by MANAGER Z on his last day as <A MANAGER> occurred one day shy of the 6 month period from when UNION REP A was notified of the course cancellation. Obviously, the Union did not have time to draft an Unfair Labor Practice and mail it to the Authority by the following day. We do not believe that the intent of the Statue is to require same-day ULP submissions. Any reasonable interpretation of the Statue would recognize that the Union cannot deliver a finished ULP to the Authority unless it has A) knowledge that the violation has occurred, and B) time to write and mail the ULP in. To apply the laws otherwise would allow Management to skirt every Unfair Labor Practice it commits by concealing it for 5 months, 29 days, and then revealing it to the Union when there is no time to complete and mail a ULP document within the 6 month deadline. We disagree with the decision of the San Francisco FLRA office for several reasons:
A) It ignores the reality that any act under “ii” is in fact also an act under “i”. Providing accurate information about the course cancellation is a duty owed by the Agency to UNION REP A. MANAGER Z owed UNION REP A an honest answer. The Agency also owed it to UNION REP A to promptly correct the misinformation fed to him.
B) MANAGER Z’s concealment prevented UNION REP A from discovering the Unfair Labor Practice in time to file it within 6 months. The Unfair Labor Practice was filed within 6 months of the act becoming apparent. Since MANAGER Z’s February 25th admission statement obviously came too late for a completed ULP to be in the Authority’s hands by February 26th, the only sensible date to use as the deadline would be 6 months from the date of MANAGER Z’s admission.
C) The San Francisco FLRA office is counting August 26, 2004 (the date UNION REP A was informed of the course cancellation) as the date of the offense. However, the date MANAGER Z contacted Personnel to have the Union Senior Steward dropped from the course would be the date the Unfair Labor Practice actually occurred. It was MANAGER Z’s order of the cancellation, not the notification from personnel, that represents a violation of the Statute. Given the time and geographic space between the ___________ Passport Agency and the Dept. of State Personnel Office in Washington D.C., it is unlikely that MANAGER Z’s action to have the course cancelled occurred on the same day that UNION REP A was notified of the cancellation. The Authority uncovered no evidence in its investigation showing the contact from MANAGER Z to Personnel occurred on August 26th. There is nothing in the report to show that MANAGER Z initiated UNION REP A’s course cancellation within 6 months of the date he informed UNION REP A of the action and reason for it. In fact, when UNION REP A contacted Human Resources staff on August 25, 2004 to thank them for approving the course, he was told that he was going to be dropped. He had received a computer-generated message on August 25th that he had been enrolled, but human decisions rendered that message null and void. Since August 25, 2004 is 6 months before February 25, 2005, then it would not have been possible for the Union to have filed the ULP within 6 months of the event.
In sum, either there was a continuing ULP violation going on between August 26, 2004 and February 25, 2005, such that filing the ULP charge on April 18, 2005 was still timely, or if August 26, 2004 is considered the date of the violation, then there is good cause for the General Counsel to issue a complaint based on the reasons listed in 5 U.S.C. 7118(a)(4)(B).
It is not disputed that UNION REP A is the NFFE Local 1998 Senior Steward at the San Francisco Passport Agency, and that he has been the Senior Steward since January 2004. The request for training that is the source of this ULP charge was initiated in June 2004, during UNION REP A’s tenure as a union representative.
On page 2 of the decision, the FLRA San Francisco Regional Director states that MANAGER Z’s statement “enjoy your issues” is the basis for the Union believing that MANAGER Z dropped Union Steward UNION REP A from the Consular Training Course. This is not an accurate statement. Immediately before he said, “enjoy your issues”, MANAGER Z told UNION REP A that he was the person who had dropped UNION REP A from the training course. Also, prior to this conversation, UNION REP A had been told by the Personnel office in Washington DC that MANAGER Z was the only person who could explain to UNION REP A why he had suddenly been dropped from the training. The admission by MANAGER Z that he had the course cancelled is the source of the union’s information, not an interpretation of “enjoy your issues”. Therefore, there is no dispute from any of the parties involved that MANAGER Z is the individual who had UNION REP A dropped from the course.
NFFE 1998 has charged that MANAGER Z told UNION REP A that he dropped the Senior Steward from the training course, and uttered a phrase that ties UNION REP A’s union issues to his ability to receive training from the agency. No alternative interpretation of the phrase “enjoy your issues” was offered by anyone interviewed by the San Francisco FLRA office during this investigation. The meaning of the phrase “enjoy your issues” does not seem to be under contention. As UNION REP A explained in his statement, while speaking to MANAGER Z on his last day in the office, UNION REP A had mentioned that there were a number of pending issues that were still unresolved. There were employee morale issues, an issue with another employee who was facing a proposed removal (and for whom the Union had filed grievances), an issue where an employee sought a promotion, an issue where an employee desired conversion from seasonal to permanent status, and other contentious union-management issues.
The San Francisco FLRA office’s decision is partly based on the perceived vagueness of MANAGER Z’s statement to UNION REP A. It is clear that by “issues”, MANAGER Z was referring to Union issues – there were no other issues in contention between the two men. Obviously, if the San Francisco FLRA office felt there were likely other issues being referenced, it could have asked MANAGER Z what he meant by the statement. There would be no dispute here is MANAGER Z had said something like, “enjoy your Union issues” while finally admitting that he had lied to UNION REP A about the enrollment withdrawal. It is our position that what MANAGER Z said is synonymous with that hypothetical modification, since all of the “issues” in dispute between MANAGER Z and UNION REP A were related to UNION REP A’s union activity.
* * *
We respectfully request the General Counsel to issue a formal complaint in this case. In this case, an active union representative had sought and been approved for a training course. That training course was cancelled by a management official who lied to the union representative about what had happened. The truth was revealed to the union representative by the management official, and the connection made to the union activity. The union then filed a ULP charge 1 ½ months later, well within the 6 month deadline.
UNION REP A has received a clear message from management: be active in the Union and you will suffer. This illegal action is an act of reprisal against UNION REP A and it has a chilling effect on both his future union activity as well as the union activity of his coworkers and colleagues. We ask the General Counsel to take all appropriate steps to correct this wrong and support the right of federal employees to engage in protected union activity without fearing and without experiencing reprisal from management.
Sincerely,
Rob Arnold
Chief Steward – NFFE Local 1998