TO: Regional Directors
FROM: Joe Swerdzewski, General Counsel
SUBJECT: Settlement Policy
After considering the recommendations of the Maximizing the Statute Work Group and the Regional Directors, the following is my policy on settlements.
The General Counsel will seek settlements that enhance the relationship between the parties; resolve the issues that have brought the parties to seek FLRA assistance; and further the purposes and policies of the Federal Service Labor-Management Relations Statute.
The parties will be involved in developing the remedy which best meets the interests of the parties. Remedies will not be proposed by the Regional Offices until discussed with the parties. Remedies which meet the needs of the parties and which further the purposes and policies of the Statute will be explored even if not substantially similar to the traditional remedies ordered by the Authority after litigation.
Absent unusual circumstances, bilateral settlement agreements will be approved by Regional Directors. Regional Directors have the authority to approve unilateral settlement agreements in accordance with established criteria which effectively remedy the allegations of the complaint. The Office of the General Counsel will seek formal settlement agreements in cases in which the Charged Party has shown a deliberate and contumacious unwillingness to abide by the requirements of the Statute.
This policy seeks:
- To resolve the specific issue brought before the FLRA to the satisfaction of the parties;
- To bring the parties together and to enhance their relationship by resolving underlying disputes while improving the parties' relationship and their communication.
- To involve the parties in developing a remedy which satisfies the legitimate needs of the parties and which promotes the purposes and policies of the Statue.
- To ensure that the FLRA is expending its resources on meaningful issues and that the Regions are abiding by uniform policies.
This policy provides the flexibility for parties, with Office of the General Counsel assistance, to craft solutions responsive to the particular needs of our customers. Bilateral settlement agreements acceptable to the parties that allow for creativity and a broad range of solutions will be approved by the Regional Directors if not otherwise repugnant to the purposes and policies of the Statute.
This policy broadens the circumstances in which unilateral settlements will be approved by not rigidly requiring the same remedy as that sought at hearing. Settlements will focus on the ultimate goal of the Office of the General Counsel of enhancing the bargaining relationship between the parties by seeking meaningful, creative remedies. This policy may lead to more litigation when it is determined that a novel and creative remedy is required.
Under this policy, The Regions will seek formal settlements, to be approved by the FLRA and enforced in court, when other avenues of settlement have been exhausted, and a party continues to be a recidivist violator of the Statute.
This settlement policy is issued in conjunction with the prosecutorial discretion policy to maximize the Statute for all parties. The Office of the General Counsel has been criticized as being too rigid and inflexible in seeking and approving settlements. This policy provides the Regional Directors with the flexibility to develop new and innovative approaches to meet the needs of our customers. As a result of these new policies, the Office of the General Counsel will be able to concentrate its resources in order to seek better and more meaningful remedies.
Currently, the majority of the unilateral settlement agreements approved by Regional Directors and upheld by the Office of Appeals are substantially similar to remedies that the Regions seek before Administrative law Judges or the Authority. The parties may not routinely be involved in the process of developing a proposed remedy. There have been few variations concerning scope of postings of remedial Notices and the signatory to the Notice. Few unilateral settlement agreements have been approved without a remedial Notice posting. This policy provides for more creativity and responsiveness by the Regions to the parties' needs. Regional Directors will involve the parties in fashioning novel and creative remedies which address and resolve the specific underlying disputes.
This policy also allows for formal settlement agreements, approved by the FLRA and enforced in court, in those situations where past informal settlements have not had the requisite deterrent effect on future violative conduct.
Regional Directors will not approve any settlements, bilateral or unilateral, which are repugnant to the Statute (for example, a settlement agreement in a 7116(a)(2) discrimination case which provides no relief to the individual employee discriminatee). Regional Directors also will not propose remedies without first obtaining input from the parties concerning their interests. The Regions will not be restricted to seeking remedies which are substantially similar to the traditional remedies ordered after litigation.
The traditional format of the settlement agreement will no longer be a restriction on the authority of a Regional Director to approve a settlement agreement. Settlement agreements no longer need be approved on FLRA Forms 54, 55, 57 and 58 as long as the agreement indicates that the Region is responsible for monitoring compliance and non-compliance will result in revocation of the settlement agreement and issuance of a complaint.
Settlement agreements may allow for limited postings, no postings, a posting of something other than an FLRA Notice To All Employees (such as a memorandum of understanding, letter, announcements in facility newspapers or newsletters, verbal announcements to individuals or groups of employees etc.), or whatever creative remedy the parties agree upon. This authority to approve such creative remedies removes the current restriction that settlement agreements must follow a specific format, including a Notice To All Employees, signed and posted for a 60 day period.
This policy provides for creativity by the Regions and the parties in framing settlements that are suitable to the specifics of each case. This policy allows for creative remedies which resolve not only the specific issue but also improves broader relationship issues. Remedies could include mandatory training for supervisors or union officials, specifying the names of supervisors or union officials in notices who committed the violations, communications from managers to supervisors or from union presidents to stewards regarding their obligations under the Statute, ordering parties to bargain an agreement on specific issues, requiring the charged party to pay travel and per diem for bargaining sessions, and/or the use of time tables for bargaining.
In order for this settlement policy to be consistently and fairly applied by the Regions, the Regional Directors and our customers must have a common understanding of the objective criteria which will be examined to determine if a set