Executive Summary for Guidance on Seeking Remedies under the Statute
FLRA GENERAL COUNSEL JOSEPH SWERDZEWSKI'S MEMORANDUM TO REGIONAL DIRECTORS ON GUIDANCE IN SEEKING REMEDIES FOR UNFAIR LABOR PRACTICES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
This Executive Summary of the General Counsel of the Federal Labor Relations Authority's Guidance Memorandum to Regional Directors discusses the Office of the General Counsel policy on seeking remedies for unfair labor practices under the Federal Service Labor- Management Relations Statute (Statute). This memorandum provides guidance on the types of remedies and the elements of proof that are necessary to obtain those remedies. When determining, on behalf of the General Counsel, to issue an unfair labor practice complaint under the Statute, Regional Directors are required to make decisions on the remedy that will be sought in litigation. Regional Directors are guided by the decisions of the Members of the Federal Labor Relations Authority in determining the appropriate legal remedy for unfair labor practices. Obtaining these remedies from the Authority in litigation requires not only a finding that an unfair labor practice violation has occurred, but also a determination that the remedy sought is lawful and appropriate to the violation in the particular circumstances of the case. Thus, it is imperative that the Regions, and the parties, are aware of not only the variety of possible remedies, but also the type of evidence that is necessary to establish the appropriateness of these remedies.
This memorandum serves as guidance to the Regional Directors in investigating, settling and litigating unfair labor practice charges. It is also intended to assist parties in providing evidence and arguments concerning the appropriate remedy to an unfair labor practice charge. By understanding the types of remedies available and the evidence necessary to establish the appropriateness of those remedies, the Regions and the parties will be better suited to resolve unfair labor practice complaints and, if litigation is necessary, to make cogent arguments based on relevant evidence as to the appropriateness of those remedies.
I am making this Guidance Memorandum available to the public to assist union officials and agency representatives to resolve unfair labor practice issues in an expeditious fashion consistent with the requirements of the Statute. This Guidance is a continuation of my Office's commitment to provide the participants in the Federal Service Labor-Management Relations Program with my views on significant topics. This Guidance reflects my views as the General Counsel of the Federal Labor Relations Authority and does not constitute an interpretation by the three-member Authority.
Many of the remedies discussed in this Guidance have been well established by Authority precedent, but those decisions also leave open the possibility for further innovative remedies, as long as the Statute is effectuated, the evidence establishes the need for such a remedy, and the remedy is not otherwise inconsistent with the Statute or other external law. Accordingly, to assist the parties in recognizing and supporting appropriate remedies, attached to this Guidance are: (1) the different types of remedies, both traditional and nontraditional, to specific unfair labor practices and describes the types of evidence that are necessary to establish the appropriateness of those remedies; and (2) a decisional protocol to assist the Regional Director in determining what remedy to seek when litigating an unfair labor practice complaint. This Guidance sets forth established traditional remedies and possible nontraditional remedies for various violations. It is not a limitation on developing new and better remedies not referenced in the Guidance.
The remedies discussed in this Guidance are sought, as appropriate, after an unfair labor practice complaint issues and the case is litigated before an Administrative Law Judge (ALJ) and the Authority. The Office of the General Counsel's Settlement Policy, on the other hand, concerns the settlement of unfair labor practice disputes without the need for litigation. The Settlement Policy sets forth the goals of settlements, the manner in which settlements are reached, and the criteria that Regional Directors apply in determining whether to approve settlement agreements. Those criteria are applied on a case-by-case basis and involve additional factors beyond the appropriate traditional or nontraditional remedy that would have been sought in litigation. Thus, settlements often contain provisions that are different from the remedies that may be sought in actual litigation.