TO: Regional Directors
FROM: Joe Swerdzewski, General Counsel
SUBJECT: Prosecutorial Discretion
After considering the recommendations of the Maximizing the Statute Work Group and the Regional Directors, the following is my policy on prosecutorial discretion.
The Office of General Counsel will exercise discretion to dismiss meritorious unfair labor practice charges when litigation would not effectuate the purposes and policies of the Statute. The Regional Directors will apply the same established criteria to the particular circumstances of each individual case to determine if litigation is warranted. With a common understanding among our customers of these criteria and the flexibility within these criteria, the Office of the General Counsel will be able to concentrate its limited resources on vigorously prosecuting cases, including seeking appropriate temporary relief, where the parties, with the Office of the General Counsel assistance, are unable to resolve their dispute.
The proper exercise of prosecutorial discretion is essential to the establishment of a sound Federal sector labor-management relations program. In view of the rising caseload and limited resources of the Office of the General Counsel, concentrating on more important cases and seeking more innovative and creative remedies enhances the effectiveness of the Statute, improves the parties' relationship and makes more effective use of the Office of the General Counsel resources.
This policy is issued in conjunction with the settlement policy to maximize the Statute for all parties. Under this prosecutorial discretion policy, the Office of the General Counsel will focus its limited resources on seeking meaningful and creative remedies for violations of the Statute which are more responsive to the needs of our customers. The Office of the General Counsel also will focus on the full and vigorous prosecution of violations of the Statute where the parties, with the Office of the General Counsel assistance, are unable to resolve their dispute. This vigorous prosecution will encompass seeking permission from the Authority to seek appropriate temporary relief in more situations.
The Office of General Counsel has been criticized for litigating cases which appear to be trivial or moot, thereby wasting the time and resources of both the FLRA and the agencies and unions involved. The rise in the number of unfair labor practice charges filed at a time when agency budgets (including the FLRA's) are being tightened makes it increasingly difficult to justify the litigation of certain matters, even though there may a technical violation of the Statute, when that litigation will do little to further the interests of the Statute or improve the parties' relationship.
While the Regional Directors always have had the discretion to dismiss charges, absent withdrawal, because their prosecution would not effectuate the purposes and policies of the Statute, there has been no published guidance to the Regional Directors and our customers setting forth how prosecutorial discretion should be exercised. With proper and standard guidelines, the Regions will be able to focus their limited resources on the more important disputes and the parties also will be aware of those guidelines.
While the Office of General Counsel will dismiss charges of little significance, we also intend to prosecute the remaining cases more vigorously, seeking new and more meaningful remedies. We also intend to continue our efforts to resolve disputes at the earliest possible stage after a charge is filed and to continue our efforts to assist the parties in improving their relationships with the ability to resolve their disputes without the necessity for third party involvement.
In order for prosecutorial discretion to be consistently and fairly applied by the Regions, the Regional Directors and our customers must have a common understanding of the criteria which will be examined to determine if prosecution of a case maximizes the Statute. A number of factors are appropriate for consideration. All the facts and circumstances present in a particular case will be examined under these criteria before a Regional Director determination is made to no longer process a case based on prosecutorial discretion. The importance of the various factors will vary depending upon the particular circumstances of each case. These factors are not intended to be all inclusive. Special circumstances may arise which should be considered before a determination to dismiss an otherwise meritorious charge is made. These criteria will not be applied in a vacuum, but rather in conjunction with the other criteria listed. For example, even though one criteria may indicate that prosecutorial discretion should be invoked in a particular case, other criteria may outweigh that consideration and indicate that prosecution of the violation in the totality of the circumstances would effectuate the purposes and policies of the Statute.
These are the basic criteria which the Regional Directors will apply prior to dismissing a charge because its further processing would not effectuate the purposes and policies of the Statute:
1. NATURE OF THE VIOLATION
What is the seriousness of the violation?
Not all violations of the Statute are as serious as others. Similarly, there are degrees of seriousness within the same category of unfair labor practices. Still other violations are more technical in nature. The magnitude of the seriousness of the violation will be taken into consideration when determining if prosecutorial discretion should be exercised.
2. HARM TO THE BARGAINING RELATIONSHIP
What is the degree and nature of the harm to the union/agency as an institution?
The degree and nature of the harm to the union/agency as an institution can vary widely depending on the particular circumstances. A violation of the Statute may interfere with the union as an institution so that it cannot function effectively as an exclusive representative or interfere with an agency to a such a degree where the mission cannot be accomplished. Other violations may have no or little impact on the union or the agency as an institution. This factor will be examined to determine if prosecution is warranted.
3. HARM TO EMPLOYEES
What is the degree of harm to employees resulting from the violation?
The magnitude of the harm to a particular employee or to employees generally caused by a violation may also vary substantially depending upon the particular circumstances. The harm to employees caused by a violation is another factor which will be examined prior to invoking prosecutorial discretion.
4. PATTERN OF CONDUCT
Has the same or similar conduct occurred in the past?
Repeated violations of the same or similar conduct normally will not be viewed the same as isolated unlawful conduct. Distinctions also may be warranted based on the level of the individual charged with committing the violation. The past history of the charged party is another factor to be considered when determining whether litigation would further the purposes and policies of the Statute.
Has the violation been cured by the charged party?
Litigation of a meritorious charge may not be warranted where the charged party rescinds the violative conduct and there either is no identifiable harm caused by the violation or the charged party has voluntarily mitigated any adverse impact caused by the violation. Whether a violation has been effectively cured is another factor which will be examined prior to exercising prosecutorial discretion.
6. THE REMEDY
Is there an appropriate remedy for the violation?
Circumstances may be present which preclude an effective remedy. The lack of the need for an affirmative remedy is another factor that will be considered in exercising prosecutorial discretion.
7. CHANGED CIRCUMSTANCES
Have circumstances changed since the violation occurred which render litigation inappropriate or render the dispute moot?
The facts existing at the time a charge is filed can change by the time an investigation is completed or before a trial is held. The Regional Directors also will examine whether changed circumstances render prosecution of a case no longer in furtherance of the goals of the Statute.
Does the case present a novel issue which could affect the interpretation and application of the Statute?
A fact pattern may create an opportunity to establish an important legal or remedial precedent for future cases. This factor will also be examined when making prosecutorial discretion determinations.