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[CADR] [Solicitor] [Executive Director] [Inspector General]

Agency-Wide Activity Highlights

Collaboration and Alternative Dispute Resolution Program

The FLRA continues its efforts to expand the delivery of alternative dispute resolution (ADR) services under the Collaboration and Alternative Dispute Resolution Program (CADR). CADR was established by the three independent components of the FLRA – the Authority, the Office of the General Counsel, and the Federal Service Impasses Panel -- to reduce litigation (and its attendant costs) by helping the parties resolve their own disputes through labor-management collaboration and alternative dispute resolution activities. During FY 1998 the unified CADR Office worked together with the three independent components of the FLRA to coordinate the delivery of interest-based dispute resolution services in pending unfair labor practice, representation, negotiability, and bargaining impasse disputes. CADR also provides partnership facilitation and training to assist labor and management in developing collaborative relationships and constructive approaches to conducting their relationship.

CADR implements one of the FLRA’s primary strategic objectives by offering collaboration and alternative dispute resolution services at every step of the labor-management dispute. Requests by labor and management representatives for intervention assistance and facilitation, and training in partnerships geared toward problem solving on specific matters, continued to increase. Labor and management representatives have a better understanding of the benefits of cooperative interest- based problem solving and showed a greater interest in resolving issues mutually by seeking assistance at earlier stages. During FY 1998, FLRA staff received more requests for assistance to resolve issues before cases were actually filed with the FLRA. In addition, staff responded to hundreds of requests for educational and direct assistance by providing intervention and facilitation assistance in specific labor-management disputes using Collaboration and Alternative Dispute Resolution and interest-based problem solving, and statutory and follow-up training in on-going labor-management partnerships. Parties are provided assistance in resolving their disputes at all stages on a mutual and voluntary basis.

The CADR initiative for resolving appropriate cases pending in the Authority’s negotiability appeal process helped more parties develop substantive consensus-based solutions that effectively resolved the problems giving rise to the negotiability appeal. This assistance in negotiability cases is now formalized in the proposed FLRA negotiability regulations that will become effective in FY 1999 and will provide parties the opportunity to use interest-based problem-solving in every negotiability appeal filed with the FLRA.

CADR developed programs designed to enhance the dispute resolution skills of FLRA staff and customers and worked with agencies and labor organizations in the design of dispute resolution systems. In FY 1998, CADR also participated in the National Partnership Council’s skill development workshops for labor and management representatives involved in partnerships. In addition to this type of broad Government-wide effort, CADR makes direct contact with the parties to encourage the use of ADR at the earliest stages of a dispute. CADR is actively marketing its services through press releases, materials and on-site briefings with Federal sector agencies, unions, neutrals and professional organizations, and participation in seminars, conferences and meetings.

Customer Survey

In FY 1998, the FLRA conducted a comprehensive customer survey on the performance of two of its three primary components - - the Authority and the Office of the General Counsel. The survey was mailed to union representatives, agencies, and individuals who were parties before the FLRA during FY 1996 and 1997. The survey reached 4,405 of these parties; the FLRA received 1,674 responses (or 38%).

The survey was designed to measure the effectiveness of each of the programs administered by the FLRA, the impact of FLRA’s decisions and the General Counsel’s policies and guidance, and customer satisfaction with the FLRA’s processes. As such, the survey establishes a baseline for the Authority, and served to measure the effectiveness of programs initiated by the Office of the General Counsel to improve services to its customers since its earlier 1993 survey.

Responses to the customer survey indicated that the FLRA is doing a good job meeting the information needs of its customers. Survey responses also identified areas where they would like further information. For example, respondents strongly agreed that information supplied by the Office of the General Counsel through the issuance of policies, guidance, and manuals to parties was helpful to them. Additionally, the face to face outreach of the General Counsel through a series of Town Meetings held across the country received favorable responses. Respondents also indicated an interest in the Authority expanding its use of conferences, symposia, and training programs to discuss policies and procedures. Responses to the use of the FLRA web site were also quite favorable.

In the area of case processing, Respondents were generally positive about elements of processing matters before the General Counsel, Authority, and Office of Administrative Law Judges. The Authority’s Office of Case Control received high marks for processing and customer service.

Respondents affirmed the quality of the different categories of FLRA decisions, with significant percentages reporting that Authority decisions describe what the dispute is about, are easily understood, establish useful guidelines, and explain the conclusions reached. Respondents indicated concerns about the length of time before cases are decided, although they were also unwilling to “trade” quality decisions for improved timeliness.

The FLRA’s customers’ responses to the survey indicated that respondents believe that decisions issued in labor law cases involving legal issues do not necessarily resolve underlying problems between parties. This finding reinforces the FLRA’s commitment to helping parties resolve their disputes using collaboration and alternative dispute resolution.

A number of future actions will be undertaken as a result of the survey. For example the Authority will conduct two national training conferences in 1999 and the OGC will provide training for staff in the area of customer relations. Additionally, the OGC plans to revise ULP investigatory regulations to improve case processing procedures and codify the collaboration and alternative dispute resolution procedures currently used. The Authority has revised its ULP litigation regulations to include pre-hearing conferences and discovery in order to foster dispute resolution and to streamline the litigation. Both the Authority and the OGC have made commitments to improve the timeliness of decisions and both continue to make collaboration and alternative dispute resolution an integral part of operations in order to assist parties in crafting their our solutions to problems.

The survey provided the FLRA with valuable information to validate, improve, and redirect efforts so that it can fulfill the promise of the agency mission statement: to promote stable, constructive labor relations that contribute to a more effective government.

The survey results and a synopsis of future actions are available in their entirety on the FLRA’s web site at www.flra.gov.


OFFICE OF THE SOLICITOR

During Fiscal Year 1998, 27 court proceedings involving the Authority were filed and 23 court proceedings involving the Authority were closed. Of the 23 proceedings that were closed, 13 involved merits decisions. The Authority was affirmed, in whole or in prominent part, 10 of 13 times. At the close of the year, the Authority was a party to 18 cases under judicial review. Summaries of selected decisions follow.

Midterm Bargaining: In United States Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia v. FLRA, 132 F.3d 157 (4th Cir. 1997), reviewing 52 FLRA 475 (1996), petitions for cert. granted, 118 S. Ct. 2059 (1998), the Fourth Circuit considered for the third time the issue of union-initiated midterm bargaining. The Court first considered the issue in SSA v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA) , where it held, in direct conflict with the D.C. Circuit’s decision in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987), that the statutory obligation to bargain in good faith did not extend to union-initiated bargaining during the term of an agreement. In Department of Energy v. FLRA, 106 F.3d 1158 (4th Cir. 1997) (Energy), relying on SSA, the Court found a collective bargaining provision authorizing midterm bargaining that had been imposed by the Federal Service Impasses Panel to be inconsistent with law. The Court held in the present case, which involved a refusal to bargain over a contract proposal authorizing union- initiated midterm bargaining, that its decision was controlled by SSA and Energy. Although recognizing the difficulties that the conflict with the D.C. Circuit presented, the Court noted that “recourse for resolution must be sought elsewhere.” 132 F.3d at 162.

Investigatory Interviews: In FLRA v. Department of Justice, Washington, D.C., U.S. Department of Justice, Immigration and Naturalization Service, N.Y. District, N.Y., 137 F.3d 683 (2d Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3302 (Oct. 22, 1998) (No. 98-667), the Second Circuit denied the Authority’s application for enforcement of a decision concerning employee rights during investigatory interviews. The Authority had applied for summary enforcement of its cease and desist order. The Court concluded that an Office of the Inspector General investigator is a “representative of the agency” within the meaning of section 7114(a)(2)(B) of the Statute only when interrogating employees about matters within the scope of collective bargaining. Enforcement of the Authority’s order was denied because the Inspector General’s agents questioned employees about serious criminal offenses and violations of agency firearms policies that the Court found were outside the scope of collective bargaining.

Discharge of Employee Engaged in Protected Union Activities: In David F. Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998), seeking review of 52 FLRA 1390 (1997), the D.C. Circuit denied an individual’s petition for review of an Authority decision dismissing an unfair labor practice (ULP) complaint alleging that he had been terminated in retaliation for exercising rights protected by the Statute. Agreeing with the Authority, the Court held that Power’s termination resulted not from anti-union animus but from his many incidents of insubordinate conduct. The Court also found that Power’s claim of impermissible bias on the part of an Authority member was both meritless and precluded under section 7123(c).

Refusal to Provide Information under § 7114(b)(4): In American Federation of Government Employees, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998), seeking review of 52 FLRA 1195 (1997), the D.C. Circuit denied a union’s petition for review of an Authority ULP decision in an information case arising under section 7114(b)(4) of the Statute. The complaint alleged that the Agency improperly refused to provide documents requested by the Union in connection with a pending grievance. Characterizing as “conclusory” the Union’s claim that it “needed the information to prepare for arbitration of its previously filed grievance,” the Authority found that the Union failed to articulate a particularized need for the documents. The Court agreed, rejecting the Union’s claim that the connection between the information the U nion sought and the grievance was “self-evident.”

In a second section 7114(b)(4) information case, the D.C. Circuit denied an agency’s petition for review of an Authority decision in Department of Justice, Immigration & Naturalization Service, Northern Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90 (D.C. Cir. 1998), seeking review of 51 FLRA 1467 (1996) and 52 FLRA 1323 (1997) . The Authority had ruled that the Agency committed a ULP by failing to provide the Union with certain disciplinary records the Union had requested in connection with a proposed removal. The Court found that the Union was acting as an “exclusive representative” under the Statute, notwithstanding the fact that the Union had chosen to represent an employee at the oral reply stage of the disciplinary process. The Court also agreed with the Authority that the requested information was “necessary” at the oral reply stage of the proposed removal action because the Union needed the documents concerning how the Agency disciplined other employees to assess whether the proposed punishment was appropriate. The Court therefore agreed with the Authority that the Agency committed a ULP by refusing the Union’s request for the disciplinary records.

Negotiability Appeals: In United States Department of Transportation, Federal Aviation Administration v. FLRA, 145 F.3d 1425 (D.C. Cir. 1998), seeking review of 53 FLRA 139 (1997), the D.C. Circuit granted the Agency’s petition for review, denied the Authority’s application for enforcement, and remanded the case to the Authority for further proceedings. The Authority had found negotiable a proposal that Air Traffic Assistants be eligible for “familiarization” flights on commercial airlines. The Authority stated that the Agency’s “bare assertion that the proposal conflicts with a Government-wide regulation . . . did not establish that the proposal is outside the obligation to bargain.” The Authority found that, by failing to offer specific arguments and regulations, the Agency did not carry its burden of creating a record upon which the Authority could make a negotiability determination. The Court held that the Authority should have addressed the substance of the Agency’s objection because the Agency’s “position and authority are easily understood.” The Court also noted that if the Authority found the Agency’s submission “too oblique,” it could have requested additional briefing or held a hearing to amplify the Agency’s argument.

Judicial Review of Authority Decisions on Exceptions to Arbitrators’ Awards: In Federal Deposit Insurance Corporation v. FLRA, No. 98-1221 (D.C. Cir. August 3, 1998), seeking review of 53 FLRA 1469 (1998), the D.C. Circuit dismissed for lack of jurisdiction the Agency’s petition for review of an Authority decision on exceptions to an arbitrator’s award. The Authority had modified an arbitrator’s award, which denied in part and sustained in part a grievance alleging that the Agency had violated the Fair Labor Standards Act. The Authority found that the award should have included the payment of liquidated damages and that it had disregarded the appropriate statute of limitations. The Court agreed with the Authority that the court could not review such actions under 5 U.S.C. § 7123(a), and that the Supreme Court’s decision in Leedom v. Kyne did not apply.

Similarly, in Johanna K. Begay v. Department of the Interior, 145 F.3d 1313 (Fed. Cir. 1998), seeking review of 53 FLRA 984 (1997), the Federal Circuit dismissed for lack of jurisdiction an individual’s petition for review of an Authority decision overturning an arbitrator’s award. Although not the named respondent, the Authority participated in the case as an amicus curiae. The Authority had set aside an arbitrator’s award, which sustained a grievance challenging the use of certain reduction-in-force procedures resulting in Begay’s separation from service. The Court determined that it did not have jurisdiction to review the Authority’s decision under 28 U.S.C.

§ 1296(a)(2) and 3 U.S.C. § 431. The Court also found that no other circuit court would have jurisdiction to review the Authority’s decision. The Court agreed in this regard with other courts of appeals that because a ULP was not an explicit or a necessary ground for the Authority’s decision, no court would have jurisdiction under section 7123(a) of the Statute.

Judicial Review of Authority Decisions in Representation Cases: In American Federation of State, County & Municipal Employees, Local 3719 v. FLRA, No. 97-01043 (D.D.C. Jan. 20, 1998), seeking review of 52 FLRA 1093 (1997), the district court granted the Authority’s motion to dismiss for lack of subject matter jurisdiction a complaint seeking review of an Authority decision in a representation case. The Authority had affirmed a Regional Director’s determination excluding certain employees from a bargaining unit because they were engaged in security work that directly affected national security. The Court agreed with the Authority that the court could not review such actions under 5 U.S.C. § 7123(a), and that the Supreme Court’s decision in Leedom v. Kyne did not apply. The Court recognized that section 7123(a) authorizes only the courts of appeals to review the Authority’s orders, and precludes any court from reviewing an order of the Authority involving a representation matter.

Freedom of Information Act Cases: In Dennis R. Means v. Phyllis N. Segal, Chair, FLRA, No. 197-CV-01301 (D.D.C. Apr. 15, 1998), appeal denied, No. 98-5170 (D.C. Cir. Oct. 6, 1998), the district court adopted the report and recommendation of the magistrate judge and granted the Authority’s motion to dismiss. The complaint sought to compel the FLRA’s General Counsel to issue ULP complaints and to obtain documents withheld by the General Counsel under the Freedom of Information Act (FOIA). Recognizing that the General Counsel has unreviewable discretion to decline to issue ULP complaints, the court dismissed the complaint’s ULP claims because it lacked subject matter jurisdiction. The court also granted the Authority’s motion for summary judgment with regard to the plaintiff’s FOIA claim. It found that the portions of the attorney notes and the investigative reports withheld from the plaintiff were protected from disclosure by the deliberative process privilege and the attorney-client and work product privileges. The Court also upheld the General Counsel’s claim that FOIA Exemption 7(C) [protection of privacy interests of third parties] and FOIA Exemption 7(D) [protection of identity of confidential sources] protected from disclosure several documents created during the investigation of the ULP charges.

Union Access to Agency Facilities: In National Treasury Employees Union v. FLRA, 139 F.3d 214 (D.C. Cir. 1998), reviewing 52 FLRA 1159 (1997), the D.C. Circuit denied in part and granted in part a petition for review of an Authority decision dismissing ULP charges against the Agency. The Agency had denied NTEU a permit to distribute literature on the sidewalks of the Agency facility at which another union was the exclusive representative. The Authority determined (1) that the denial of a permit did not amount to unlawful assistance to the incumbent union under section 7116(a)(3), and (2) that, applying the principles of Babcock & Wilcox, the permit denials did not discriminate against NTEU under section 7116(a)(1). The Court affirmed the Authority’s decision that the Agency did not unlawfully assist the incumbent. The Court also found, however, that the Babcock & Wilcox rule did not protect the Agency’s denial of permits to NTEU because the Agency did not have a general no-solicitation policy. Noting that the Authority was not required to adopt Babcock & Wilson, the Court remanded the case to the Authority to re-examine the question whether the Agency violated section 7116(a)(1). However, the Court concluded that if the Authority determined that the Agency did violate section 7116(a)(1), the Authority was obliged to apply retroactively its newly adopted standard and award NTEU a remedy.

Appeals Procedure Bar to Unfair Labor Practice Claim: In Robert W. Wildberger, Jr. v. FLRA, 132 F.3d 784 (D.C. Cir. 1998), reviewing 51 FLRA 413 (1995), the D.C. Circuit denied in part and granted in part a petition for review of an Authority determination dismissing three consolidated ULP complaints against the petitioner’s former employing agency. The Authority had dismissed the complaints for lack of jurisdiction pursuant to section 7116(d) of the Statute, which bars issues that “can properly be raised under an appeals procedure” from being raised as ULPs. The Court upheld the dismissal of two complaints concerning the petitioner’s proposed removal and a threat. However, the Court found that section 7116(d) did not bar the Authority’s jurisdiction over the petitioner’s disparate treatment complaint. Accordingly, the Court remanded the disparate treatment complaint to the Authority for a determination on the merits.

Judicial Review of FLRA General Counsel’s Decision Not to Issue a ULP Complaint: In Patent Office Professional Association v. FLRA, 128 F.3d 751 (D.C. Cir. 1997), seeking review of Case No. WA-CA-50352, cert. denied, 118 S. Ct. 1189 (1998), the D.C. Circuit dismissed the union’s petition for review of a decision of the FLRA General Counsel declining to issue a ULP complaint, on the ground that the Court lacked jurisdiction under section 7123 of the Statute. In its decision, the D.C. Circuit reaffirmed its ruling in Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982), where the Court flatly declared that it had no jurisdiction to review decisions by the FLRA General Counsel declining to issue ULP complaints because such decisions do not constitute final Agency orders under section 7123. To avoid any “lingering confusion,” the Court indicated that the Supreme Court’s intervening decision in Heckler v. Chaney, 470 U.S. 821 (1985) did not change the law of the D.C. Circuit regarding the nonreviewability of the FLRA General Counsel’s decisions.


OFFICE OF THE EXECUTIVE DIRECTOR

The divisions within the Office of the Executive Director provide the Agency’s administrative support. In FY 1998, the office coordinated the development and implementation of the Agency’s five-year strategic plan and the FLRA Annual Performance Plan, including development of critical performance measurements and baselines. In addition, the office worked to improve the Agency’s information management systems and to enhance employee development programs.

Improving the FLRA’s information resources management (IRM) program was a major objective during FY 1998, as established in the FLRA strategic plan. During FY 1998, the Agency implemented a life-cycle program for its hardware and software to enable better long-range planning and maintenance of the updated information infrastructure. IRM initiatives during the year included: 1) Year 2000 computer assessment, testing, development and implementation of a Remediation Plan; 2) a review of hardware and software to upgrade/replace the Agency network operating system and other ADP equipment to ensure Year 2000 compliance; and 3) an agency- wide telecommunications review to determine the most cost effective way to link Headquarters and Regional Offices.

The FLRA continued to make improvements to its database and case tracking systems to enhance management tools and capability to measure progress under the Annual Performance Plan. For example, a certification database, that includes all actions where a union has been certified as the representative of a group of employees, was developed and readied for implementation in the Regional Offices. In addition, the Office of the General Counsel unfair labor practice database revisions were completed, and conversion and upgrade of all other databases began. Finally, the Agency’s in-house research database was augmented to include more up-to-date case information.

During FY 1998, the FLRA continued to expand and improve its Web-Site, located at www.flra.gov. The home page was expanded to provide access to Authority decisions, Office of General Counsel policy guidance, Federal Service Impasses Panel decisions, the FLRA Bulletin publication, vacancy announcements, and other information. The home page represents the FLRA’s commitment to ensure that Federal employees, agencies, unions, and the general public have easy access to information concerning FLRA.

In FY 1998, the Agency, through its Partnership Council, implemented a “core competency” program for its attorneys and labor relations specialists. The program defines career ladders, outlining the skills, abilities, and experiences necessary for the staff to accomplish the FLRA’s mission.


OFFICE OF THE INSPECTOR GENERAL

The Office of Inspector General (OIG) revised its program to include contemporary preventative oversight practices. These are in addition to its more traditional functions. The OIG restructured its operations to encourage a more open and consultive approach with management and employees. The Office incorporated an agency-wide education program, management consultation, and mediation into its program. Accomplishments included: audit, investigatory and internal review activities; revised policies and brochures; and an automated case control and corrective action follow-up system. The OIG also underwent a Peer Audit Review.

The OIG issued a major audit on Telecommunications, processed 48 Hotline Assistance Requests, performed eight investigations, completed one internal review and issued several Management Letters recommending improvements in areas of FLRA operations. The Inspector General visited five of the seven Regional Offices, providing briefings on oversight responsibilities and violence in the workplace. The OIG issued two semi-annual reports to the FLRA Chair and Congress, and participated in the Presidential Council for Integrity/Efficiency and Executive Council for Integrity and Efficiency activities.