Remarks of GC at ABA Section of Labor and Employment Law 2009 Annual Luncheon, December 3, 2009

Remarks of Julia Akins Clark

 General Counsel Federal Labor Relations Authority

American Bar Association

Section of Labor and Employment Law

Federal Service Labor Committee

2009 Annual Luncheon

 

It is a pleasure to address members of the federal sector labor bar.  Tomorrow will mark my 120th day on the job making today a particularly good time to take stock.  During the several years before my appointment, FLRA presidential leadership made budget and hiring decisions that left the OGC at less than half the pre-2000 staff level.  Critical guidance, manuals and training materials intended to make FLRA services more user friendly were summarily removed from the public domain.  When I took the oath of office on August 17, 2009 the OGC had been without a General Counsel for nearly eighteen months.  By this time, a ULP backlog of 342 meritorious ULP charges and over 800 ULP appeals awaited action.  Not surprisingly, during this period, both FLRA customer and career employee dissatisfaction reached intolerable levels.

I am here to share with you what the Office of General Counsel is doing to rebuild our operation in the public interest. 

Backlog:  Of the 342 cases awaiting issuance of a ULP complaint 196 have been settled or are scheduled for trial.  I am particularly pleased with the large number of bilateral settlements our agents have negotiated – many of which went far beyond what might have been accomplished in litigation.  As I will discuss later in my remarks, the OGC will be integrating dispute resolution opportunities into every phase of our ULP and Representation case processing.  Similarly we have reduced our appeals backlog from 800 to approximately 400 cases.  We are on track to clear all of the backlogged ULP cases by mid-February.  This is excellent progress considering the number of cases involved, our staff size and the small number of ALJs available to hear cases.

Restoration of Information Resources: 

Training:  As you are no doubt aware, the OGC launched an aggressive Statutory Training initiative in October – we scheduled 14 open sessions in locations around the country over a 6 month period -- in addition to training sessions for parties at their request.  We anticipate training as many as 1000 agency and union representatives by spring 2010. For the first time in agency history, our statutory training materials are posted on the FLRA web site.  In the near term we will develop an interactive web-based version of the statutory training that any interested person can access.  Our goal is to ensure that the FLRA’s customer base (agency and union representatives as well as federal managers and employees) have the tools to develop a working knowledge of their statutory rights and responsibilities.

Guidance and Manuals:  OGC staff is working diligently to revise these materials.  As you know, the pre-2000 documents have been recovered and are posted on the OGC’s page on the FLRA site as “historical materials”.  I urge you use these references in the meanwhile, as our own agents are doing.  I ask that you understand that the same employees who are litigating the backlogged ULP cases, investigating new charges, processing representation petitions and presenting statutory training, are also updating these materials.  We will publish them as they are ready, with a priority on issuing revised Guidance first, and revised Representation and ULP Manuals next.  (We look to have to our first set of updated Guidance issued in early 2010)

Technology:  Within the next 90 days, every FLRA agent will be equipped with state of the art computing software and equipment allowing them to conduct business (web meetings, including video conferencing) from anywhere in the country.  In fact, every facet of our work will be positively impacted by on-going technology improvements, including our case management systems.

Case Processing Improvements:  First I want to offer some specific, near term changes in the ULP and REP areas, and then provide some general longer term observations and goals.

ULP:  (1) ADR:  Agents are now authorized to assist the parties in the resolution of their labor disputes as soon as a charge is filed. The parties no longer have to wait 3 to 4 months until their case has been fully investigated and decided before the OGC will provide resolution assistance. From the time a case enters our system, we will work with the parties to fashion an effective resolution of the dispute.  OGC dispute resolution specialists are preparing recommendations as to the best practices in labor dispute resolution to share with the staff.  Our new FSIP members have generously offered their individual and collective expertise to this effort.  Early next year, OGC will propose regulatory changes to support this initiative, and customer training will follow.    (2) Quality Investigations: While our travel budget remains tight, Regional Directors are authorized to conduct on-site investigations, in appropriate cases.  Routine quality reviews of closed ULP cases will also resume in the near future.

REP:  Representation case processing (timeliness and quality) will benefit greatly from technological improvements.  You will soon find our agents holding web-based conferences that allow agents to display proposed stipulations and other documents and make real-time changes to those documents, while participants view the proceedings from their own computers.  We are testing the use of video hearings, in appropriate cases, and expect to make this option widely available. Finally, we have investigated telephone/electronic balloting as an alternative to the traditional mail ballot process used in most FLRA elections.   Our sister agency, the National Mediation Board has used this system for eight years to conduct large nationwide union elections in the railroad and airline industry.  Unions and employers agree that the NMB system is far more reliable and accurate than the traditional mail ballot system. I am convinced that the telephone/electronic voting method should be an option in large mail ballot elections.

Now I would like to offer some general observations that apply to both ULP and Representation case processing. We all know from our experience that labor relations are dynamic.  To be meaningful, third-party dispute resolution must be not only high quality, but timely as well.   The existence of the dispute -- whether it is an alleged ULP or representation question – limits the parties’ ability to conduct the business of labor relations.  In my experience, the longer the dispute lingers, the greater the total cost of the dispute resolution process and the less meaningful the outcome.

When the FLRA was established in 1979, our internal case processing time targets were 60 days for investigation and decision on ULP cases and 30 days for stipulation or scheduled hearing for REP cases.  Those targets have drifted upwards ever since to 120 days to investigate and decide ULP and REP cases. Instead of adjusting our field agent staffing to meet demand, our time targets have been adjusted reflect our declining staffing levels in relation to our case intake.  Presently, the OGC employs 40 field agents to handle 4000 ULP cases and 300 REP cases per year and our case intake is trending upwards.  Technological and case processing improvements can help us reduce case processing time, and we are aggressively employing both.  However, in the federal sector, nearly all participants to the dispute are federal employees, meaning that nearly all costs, consisting almost entirely of the labor costs (time spent in the dispute resolution process), are borne by the public.  There is no question in my mind that an increased investment in OGC field agents coupled with an OGC leadership emphasis on timely dispute resolution will result in a significant reduction in the total cost of labor relations disputes, benefiting unions, agencies and the public.&n