Scope of Investigations Policy

October 20, 1995

MEMORANDUM

TO: Regional Directors

FROM: Joe Swerdzewski, General Counsel

SUBJECT: Scope of Investigations Policy

This policy was developed after considering the recommendations of the Maximizing the Statute Work Group (which includes all Regional Attorneys, representatives selected by the Union of Authority Employees and Headquarters managers) and the Regional Directors. This policy will be made available to our customers. This policy will be implemented in conjunction with the General Counsel's Quality in Unfair Labor Practice Investigations Policy which also was issued this date.

 

POLICY

Regional Directors, under the direction and supervision of the General Counsel, conduct such investigations of unfair labor practice charges as deemed appropriate under the totality of the circumstances surrounding the charge. All unfair labor practice charges will be investigated to the extent that the Regional Director has sufficient information to render a determination on the merits of the charge. Not all charges, however, are required to be investigated in the same manner and to the same extent. This policy sets forth criteria to be applied by the Regional Directors to determine the type and extent of an investigation of a charge.

As part of this policy, when a determination has been made that an unfair labor practice complaint is not warranted, the Office of the General Counsel will solicit withdrawals from a Charging Party in a manner which: fully explains to the Charging Party the basis for the Regional Director's decision; affords the Charging Party a reasonable opportunity to withdraw the charge; and allows the Regions to communicate openly with both parties.

This policy will be evaluated to determine its effectiveness on a recurring basis, by reviewing the scope of Regional Office investigations, cases where Regional Offices have solicited withdrawal and by considering the views of our customers.

OBJECTIVES

This policy seeks to establish an approach to be applied by all the Regions when determining the scope of the investigation of an unfair labor practice charge. This policy requires the Regional Directors to utilize established criteria, available to our customers, to determine the scope of an investigation. An objective of this policy is to expeditiously process and decide unfair labor practice charges fairly and consistently.

This policy also seeks to establish an approach to be applied by all the Regions when soliciting the withdrawal of unfair labor practice charges after it has been determined that issuance of an unfair labor practice complaint is not warranted.

BACKGROUND

Pursuant to the Federal Service Labor-Management Relations Statute, and the Authority and General Counsel implementing regulations, the Regional Directors are charged with investigating unfair labor practice charges to the extent they determine necessary. Regional Directors also are charged with assisting the parties in resolving the dispute giving rise to the unfair labor practice charge throughout all stages of the process.

The Office of the General Counsel customer survey reveals that some parties requested clarification of the scope of the investigatory process. This policy provides criteria for the Regional Directors to exercise their discretion on the scope of the investigations of unfair labor practice charges.

After it is determined that an unfair labor practice complaint is not warranted, the Region affords the Charging Party an opportunity to withdraw the charge. If the charge is not withdrawn, the Regional Director issues a dismissal letter, with appeal rights to the General Counsel. The Office of the General Counsel customer survey reveals that some parties requested clarification of this process. This policy also sets standards for the Regions when performing this action.

CRITERIA FOR SCOPE OF INVESTIGATIONS

The following are criteria which the Regional Directors will apply in determining the scope of the investigation of an unfair labor practice charge. All unfair labor practice charges will be investigated to the extent that the Regional Director has sufficient information to determine:

  1. Whether the facts support a determination that a violation of the Statute has occurred or is occurring; or
  2. Whether the case law supports the theory of violation alleged in the charge; or
  3. Whether there is jurisdiction over the charge; or
  4. Whether all elements of the statutory violation are established; or
  5. Whether, even assuming the charge has merit, prosecutorial discretion should be exercised under the criteria in the General Counsel's Prosecutorial Discretion Policy.

If and when the investigation reveals that any of the first four criteria have not been met, or that under criterion five prosecutorial discretion should be exercised, the Regional Director may determine to conclude the investigation, fully explain to the Charging Party the basis for the Regional Director's decision, solicit withdrawal of the charge and, absent withdrawal, dismiss the charge.

ALL UNFAIR LABOR PRACTICE CHARGES WILL BE INVESTIGATED TO THE EXTENT THAT THE REGIONAL DIRECTOR HAS SUFFICIENT INFORMATION TO DETERMINE:

1. WHETHER THE FACTS SUPPORT A DETERMINATION THAT A VIOLATION OF THE STATUTE HAS OCCURRED OR IS OCCURRING

Are there sufficient facts for the Regional Director to render a determination on the merits of the charge?

Unfair labor practice charges will be investigated to the extent that sufficient information has been revealed which permits the Regional Director to render a determination on the merits of the charge. Not all charges, however, are required to be investigated to the same extent in order to obtain that information necessary to render a merits determination. All investigations, regardless of the scope of the investigation, will be conducted in accordance with the quality standards set forth in the General Counsel's Quality in the Investigation of Unfair Labor Practice Policy, also issued this date.

2. WHETHER THE CASE LAW SUPPORTS THE THEORY OF VIOLATION ALLEGED IN THE CHARGE

Is the case law clear that the charge has no merit?

In some situations, after an initial discussion with the Charging Party of the theory of violation contained in the charge, it is clear that there would be no unfair labor practice finding even if all allegations in the charge, and all allegations made by the Charging Party while discussing the charge, are true. In these circumstances, the Region will provide a copy of the controlling Authority caselaw to the Charging Party. No withdrawal will be solicited or charge dismissed under this criterion without providing the Charging Party an opportunity, as appropriate, to discuss the background of the charge and the basic facts and theory of violation supporting the charge.

3. WHETHER THERE IS JURISDICTION OVER THE CHARGE

Is it clear that there is no jurisdiction over the charge?

In other limited situations, after an initial discussion of the dispute contained in the charge, it is clear that the Authority has no jurisdiction over the dispute. For example, the charge may clearly be untimely, the exceptions in section 7118(a)(4)(B) of the Statute inapplicable, and the violation not of a continuing nature. Similarly, the charge may clearly be barred by a previously filed grievance under section 7116(d) of the Statute and there is no question that the parties and the issues in the previously filed grievance are identical under Authority precedent. Also, the charge on its face, and the discussion with the Charging Party, may reveal that an unfair labor practice has not been stated or that the Charging Party clearly has filed with the wrong third party. In these particular circumstances, the Region should fully explain the basis for the Regional Director's decision not to issue complaint. No withdrawal will be solicited or charge dismissed under this criterion without providing the Charging Party an opportunity, as appropriate, to discuss the background of the charge and the basic facts and theory of violation supporting the charge.

4. WHETHER ALL ELEMENTS OF THE STATUTORY VIOLATION ARE ESTABLISHED

Is it clear that an element of the statutory violation is missing?

In other situations, after the initiation of the investigation it becomes uncontested that an element of the statutory violation is missing. In most of these instances, it is the Charging Party which readily admits when giving the details of the occurrences underlying the charge that evidence required to support an element of proof of the alleged violation is missing. For example, a Charging Party witness may state that no request was made for a union representative at an investigatory examination. Similarly, it may become undisputed that the exclusive representative received actual timely notice of a formal discussion. In these type of situations, absent unusual circumstances, the Regional Director may conclude that the investigation has been completed to the extent that the Regional Director can render a well-informed and supportable decision on the merits of the charge. No withdrawal will be solicited or charge dismissed under this criterion without providing the Charging Party an opportunity, as appropriate, to discuss the background of the charge and the basic facts and theory of violation supporting the charge.

5. WHETHER EVEN ASSUMING THE CHARGE HAS MERIT, PROSECUTORIAL DISCRETION SHOULD BE EXERCISED UNDER THE CRITERIA IN THE GENERAL COUNSEL'S PROSECUTORIAL DISCRETION POLICY

Should prosecutorial discretion be exercised under the criteria in the General Counsel's policy?

In other situations, after the initiation (but prior to the completion) of the investigation it becomes clear that even if all the allegations in the charge, and the allegations made by the Charging Party when discussing the case, are true, the charge may nonetheless be dismissed, absent withdrawal, under the General Counsel's Prosecutorial Discretion Policy. In these circumstances, the Region will assume that the charge has merit and the scope of the investigation will focus on gathering information responsive to the factors established in the Prosecutorial Discretion Policy to determine if that policy is applicable to the charge. If the Regional Director determines that the charge should be dismissed, absent withdrawal, based on the Prosecutorial Discretion Policy, the Region should carefully explain the criteria for that policy and the basis for the Regional Director's application of the criteria to the charge. If the Regional Director determines that the Prosecutorial Discretion policy is inapplicable, the Region will complete the investigation consistent with this Scope of Investigations Policy and the Quality Policy.

SOLICITATION OF WITHDRAWAL OF CHARGES

After a Regional Director determines under this policy that an investigation is complete and an unfair labor practice complaint is not warranted, the Region will solicit withdrawal of the charge by telephonically contacting and informing the Charging Party of the following:

  • the Regional Director's decision that the charge does not warrant issuance of a complaint;
  • the basis in fact and law for the decision;
  • the Charging Party's option to withdraw the charge within a reasonable time or have the Regional Director issue a public dismissal letter to both parties, with an appeal right to the Office of the General Counsel;
  • the Region will not delay issuance of the dismissal letter to afford the Charging Party an opportunity to seek a resolution from the Charged Party on the charge;
  • the Region will not become involved in facilitating any specific adjustments of the charge after a Regional Director non-merit decision (although the Region will be available, upon joint request, to assist the parties in improving their relationship); and
  • should the Charged Party request information on the status of the case, the Region will respond that the Regional Director has decided to dismiss the charge absent withdrawal.

Withdrawal requests may be received telephonically from a Charging Party. The Regional Director will issue a letter to both parties confirming that the charge has been withdrawn based on the Charging Party's request.

Regional Office field agents also may solicit withdrawal of a charge in the following limited circumstances prior to a Regional Director decision on the merits:

When it is manifestly clear that the Regional Director would dismiss the charge, absent withdrawal, and only under the following circumstances:
  1. The case law is manifestly clear that the charge has no merit. Under this standard, it must be manifestly clear that even if all the allegations in the charge, and all the allegations made by the Charging Party while discussing the charge, are true, there would be no unfair labor practice.
  2. It is manifestly clear that there is no jurisdiction over the charge. Under this standard, for example, it must be manifestly clear: that the charge was filed untimely, the exceptions in section 7118(a)(4)(B) of the Statute are inapplicable and the violation is not alleged to be of a continuing nature; or the charge is barred by section 7116(d) of the Statute and there is no question that the issues are identical under Authority precedent; or the charge on its face and the discussion with the Charging Party reveals that an unfair labor practice has not been stated; or the Charged Party has filed with the wrong third party.
  3. It is manifestly clear that an element of the statutory violation is missing. Under this standard, for example, it must be manifestly clear and undisputed that: no request was made for a union representative at an investigatory examination or the exclusive representative received actual timely notice of a formal discussion.

If an agent solicits withdrawal of a charge prior to a Regional Director decision on the merits under the circumstances in this policy, the agent must always inform the Charging Party that:

  • the basis for the agent's withdrawal solicitation reflects only the agent's view of the evidence collected thus far; and
  • only the Regional Director makes decisions on the merits of a charge, the Regional Director has not yet made any decision on the charge, and the Regional Director may evaluate the issues and evidence differently than the agent; a