23:0342(45)PS - Decision on Request for General Statement of Policy or Guidance -- 1986 FLRAdec PS



[ v23 p342 ]
23:0342(45)PS
The decision of the Authority follows:


 23 FLRA No. 45
 
                                            Case No. 0-PS-29
 
      DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
 GUIDANCE
 
    The Authority received a request from the Department of Justice
 (Justice) that the Authority issue a general statement of policy or
 guidance on the following questions:
 
          (1) Whether the General Counsel of the Federal Labor Relations
       Authority, pursuant to his charter under 5 U.S.C. Section 7105 and
       7118, is vested with the authority to unilaterally engage in the
       informal settlement of an unfair labor practice involving a
       violation of 5 U.S.C. Section 7116(b)(7);  and, if so, whether and
       to what extent, this authority is limited.
 
          (2) Whether a settlement agreement which merely provides for
       posting a notice is, in itself, sufficient to constitute "tak(ing)
       any other appropriate disciplinary action" as required by 5 U.S.C.
       Section 7120(f)(2).
 
          (3) Whether the act of calling for, or condoning, a strike,
       work stoppage, or slowdown by a labor organization, in violation
       of 5 U.S.C. Section 7116(b)(7) is, in the absence of an actual
       strike, sufficient to require that the action set out at 5 U.S.C.
       Section 7120(f) be carried out.
 
    The Authority has carefully considered this request and has
 determined that it does not satisfy the standards governing the issuance
 of general statements of policy or guidance set forth in section 2427.5
 of the Authority's Rules and Regulations, which provides in pertinent
 part:
 
          Section 2427.5 Standards governing issuance of general
       statements of policy or guidance.
 
          In deciding whether to issue a general statement of policy or
       guidance, the Authority shall consider:
 
          (c) Whether the resolution of the question presented would have
       general applicability under the Federal Service Labor-Management
       Relations Statute;
 
          (f) Whether the issuance by the Authority of a general
       statement of policy or guidance on the question would promote
       constructive and cooperative labor-management relationships in the
       Federal service and would otherwise promote the purposes of the
       Federal Service Labor-Management Relations Statute.
 
    Underlying Justice's request, in our view, is a desire to have the
 Authority examine the role of the General Counsel in investigating,
 prosecuting and remedying conduct which is alleged to violate section
 7116(b)(7) of the Statute.  /1/ Justice would apparently limit the role
 of the General Counsel in entering into unilateral informal settlement
 agreements in such cases.
 
    Considering first the standard set forth in section 2427.5(f) of our
 Rules and Regulations, we find that issuance of a general statement of
 policy or guidance with respect to the limitation on the role of the
 General Counsel suggested by Justice would not promote constructive and
 cooperative labor-management relationships or otherwise promote the
 purposes of the Statute.  Rather, issuance of the statement requested by
 Justice would have the opposite effect.  It would impinge on the
 statutory duties and responsibilities of the General Counsel and would
 be inconsistent with the settlement policy articulated in the
 Authority's Rules and Regulations.
 
    Section 7104(f)(2) of the Statute defines the duties and
 responsibilities of the General Counsel.  Specifically, that section
 enpowers the General Counsel to "investigate alleged unfair labor
 practices, . . . file and prosecute complaints, . . . and exercise such
 other powers of the Authority as the Authority may prescribe." Among
 these "other powers" is the "full and final authority and
 responsibility, on behalf of the Authority . . . to enter into and
 approve the informal settlement of charges" as set forth in Appendix B
 of our Rules and Regulations.  Where, upon investigation of an unfair
 labor practice charge, the General Counsel issues a complaint but
 subsequently determines that it will effectuate the purposes and
 policies of the Statute to settle the matter, the General Counsel may
 then decide to cease prosecuting the complaint and enter into an
 informal settlement agreement.  Such agreement may be either bilateral
 or unilateral depending on whether or not the charging party to the
 complaint is also a party to the settlement agreement.  Once the General
 Counsel enters into an informal settlement agreement, Authority approval
 of that agreement is not required.  /2/ The determination by the General
 Counsel to cease prosecuting a complaint and enter into an informal
 settlement agreement is thus fully within his authority as expressed by
 Congress in enacting section 7104(f)(2) of the Statute.  /3/
 
    Moreover, efforts by the General Counsel to informally resolve an
 allegation that an unfair labor practice has been committed are fully
 consistent with Appendix B of the Rules and Regulations, noted above,
 and the Authority's settlement policy.
 
    In exercising its leadership role under the Statute, /4/ the
 Authority has long maintained a policy of encourging the informal
 resolution of unfair labor practice charges.  This policy, expressed in
 sections 2423.2 and 2423.11 of the Rules and Regulations, extends to any
 phase of an unfair labor practice proceeding where the purposes and
 policies of the Statute will be effectuated.  /5/ The settlement policy
 was designed to foster constructive and cooperative labor-management
 relationships by encouraging parties involved in a labor-management
 dispute to communicate with one another in an attempt to resolve the
 matter and, hopefully, to forestall the occurrence of future disputes.
 It was also designed to resolve disputes expeditously without resort to
 possibly lengthy and costly litigation and, generally, to promote
 harmony at the workplace.  No limitation on the "full and final
 authority and responsibility" of the General Counsel to effect informal
 settlements as expressed in Appendix B and elsewhere in the Authority's
 Rules and Regulations was stated or intended.
 
    Therefore, based upon the role of the General Counsel set forth in
 section 7104(f)(2) of the Statute and the further delegation of duties
 as prescribed in our Rules and Regulations and given the considerations
 underlying the Authority's settlement policy, we find that the General
 Counsel, through his regional directors, clearly possesses the authority
 to informally settle all allegations of unfair labor practices where the
 offered settlement will effectuate the purposes and policies of the
 Statute.  To grant Justice's request and resolve the questions raised in
 the manner suggested would not, in our view, promote constructive and
 cooperative labor-management relationships in the Federal Service.
 
    We also find that the request does not meet the standard set forth in
 section 2427.5(c) in that resolution of the questions presented would
 not have general applicability under the Statute.  As noted by Justice,
 there have been very few instances in which the General Counsel has
 entered into such settlement agreements and therefore very few instances
 in which such issues have arisen.  Any questions concerning the
 authority of the General Counsel to act in this area have been addressed
 above.
 
    Issued, Washington, D.C. September 10, 1986
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7116(b)(7) provides as follows:
 
                   Section 7116.  Unfair Labor Practices
 
          (b) For the purpose of this chapter, it shall be an unfair
       labor practice for a labor organization to;
 
          (7)(A) to call, or participate in, a strike, work stoppage, or
       slowdown, or picketing of an agency in a labor-management dispute
       if such picketing interferes with an agency's operations, or
 
          (B) to condone any activity described in subparagraph
 
 (A) of this paragraph by failing to take action to prevent or stop such
 activity(.)
 
    (2) Formal settlement agreements, on the other hand, must be
 submitted to the Authority for approval.  See generally section 2423.11
 of the Rules and Regulations for a description of the different types of
 settlement agreements.
 
    (3) Similarly, the General Counsel maintains the discretion to
 determine whether to issue a complaint in the first instance.  Such
 action is not subject to review by the Authority and is generally not
 subject to judicial review.  See Turgeon v. FLRA, 677 F.2d 937 (D.C.
 Cir. 1982).
 
    (4) Section 7105(a) of the Statute provides:
 
             Section 7105.  Powers and Duties of the Authority
 
          (a)(1) The Authority shall provide leadership in establishing
       policies and guidance relating to matters under this chapter, and,
       except as otherwise provided, shall be responsible for carrying
       out the purpose of this chapter.
 
    (5) See also Norfolk Naval Shipyard, 10 FLRA 641 (1982) and Veterans
 Adminstration Medical Center, Bath, New York and Veterans
 Administration, Washington, D.C., 12