20th Anniversary Year Marked with Two National Training Conferences
Fiscal Year 1999 marked the 20th Anniversary of the FLRA's creation by Title VII of the Civil Service Reform Act of 1978. The FLRA commemorated this event by conducting two national training conferences to train agencies, unions, neutrals, and other interested persons. The conferences, which were self-supporting, trained a total of 500 people in Denver, Colorado and Washington, D.C.
FLRA staff, as subject matter experts, served as the training faculty for both conferences. The training focused on the FLRA's revised Negotiability, Representation, and ULP regulations. In addition, conferees learned about the FLRA's collaboration and alternative dispute resolution program that encourages parties to resolve their differences, on their own terms, as expeditiously as possible. Members of the Federal Service Impasses Panel lead a roundtable discussion with customers and the Regional Directors of the FLRA's seven regional offices also conducted training sessions.
The conferences were well received and future training events are planned based on this experience.
Retrospective Publication Issued
As part of the 20th Anniversary commemoration, the FLRA issued "The FLRA 20 Years: 1979-1999." This Retrospective presents an overview of the FLRA's development since its creation by Title VII of the Civil Service Reform Act of 1978. The publication traces the FLRA's evolution over the years from an organization emphasizing statutory enforcement through litigation, to one developing and expanding initiatives promoting the practice of constructive labor relations through interest- based resolution of disputes. Significant case law, case trends, and statutory amendments are also described.
The Retrospective highlights two recent accomplishments:
Authored by former and current staff, the 20th Anniversary Retrospective is available on the FLRA's web site at www.flra.gov or by request to the Authority.
Mainstreaming Dispute Resolution a Finalist in the Innovations in Government Award
In FY 1999, the FLRA was selected as one of 98 semifinalists in the nationwide Innovations in American Government awards competition. This prestigious annual award, sponsored by the Ford Foundation, is administered by Harvard University's John F. Kennedy School of Government in partnership with the Council for Excellence in Government. As a semifinalist, the FLRA joined a select group of just 22 other Federal agencies from across the country, drawn from a pool of more than 1,600 Federal, state, local, and tribal government applicants.
The FLRA was honored for its innovation entitled "Mainstreaming Collaborative Dispute Resolution" (or MDR) that encourages and assists disputing parties to find their own solution to the problems that sparked their legal claims. MDR mainstreams what is popularly called "alternative dispute resolution" (ADR), and emphasizes interest-based problem solving as the ADR process best suited to achieving constructive labor relations. Parties with cases before the FLRA are helped at each step of case processing to resolve their own disputes, and avoid the delays and costs connected with traditional adjudication. The program empowers labor and management to be architects of meaningful solutions to their conflicts, and strengthen their relationship and frees adjudication resources to focus on cases that require issuance of decisions.
Hammer Award
A second honor the Agency received in FY 1999 was Vice President Al Gore's Hammer Award for the FLRA's Reinvented Unfair Labor Practice (ULP) process. The Reinvented ULP process is the product of thirty FLRA staff who worked in three cross-component teams that analyzed the previous regulations, wrote new regulations and procedures, and trained customers on them. The new ULP process requires litigating parties - - for the first time in the field of Federal labor law -- to exchange information through mandatory pre-hearing conferences and discovery. The Revised ULP process also encourages parties to resolve their differences using collaboration and alternative dispute resolution.
Since the new ULP litigation regulations took effect in October 1997, the number of expensive, last minute settlements has fallen dramatically -- from 15 percent of all settlements in 1997 to just 1.9 percent of all settlements in FY 1999. Where settlements are not achieved, the Reinvented ULP process expedites litigation by narrowing and sharpening the issues in dispute.
Authority Decisional Activity: In FY 1999, the Authority continued to focus on the strategic planning goal of providing high quality services that timely resolve disputes in the Federal labor-management community. As in prior fiscal years, the Authority emphasized the timeliness and quality of decisions. In FY 1999, the Authority significantly reduced the number of cases awaiting merits decision for more than one year. During the fiscal year, this inventory was cut by more than half - to only 12 percent of the total caseload. In addition to issuing decisions in the longest-pending cases, the Authority reduced the period of time for all parties awaiting decisions. The median age of all pending cases fell below 100 days, a 30 percent reduction from the start of the fiscal year. The Authority closed a total of almost 10 percent more cases through merits decisions than in the baseline year of FY 1997. This substantially reduced the number of cases pending before the Authority to its lowest level in the Agency's history. The reduction addressed concerns raised in a 1998 customer survey regarding the length of time before disputes filed with the FLRA were resolved.
In addition to targeting over-age cases, the Authority maintained its focus on resolving complex issues, and establishing comprehensive legal doctrine to help guide parties. In doing so, the Authority sought the views of interested and affected parties through amicus briefs in cases involving key issues to our customers, and, wherever possible, encouraged parties to resolve their disputes by means other than litigation. In order to maximize the clarity and stability of the law to benefit the parties, in FY 1999 the Authority used several tools to sharpen the decision making process. These included: a case screening mechanism to identify cases for streamlined processing; techniques to identify relevant case law, issues, and potential problems prior to decision drafting; and forums in which Authority staff discuss recent case precedent and other issues of relevance to the Authority's ongoing work.
As one measure of the Authority's continuing emphasis on the quality of its decisions, the Authority's analysis was upheld by the Federal courts in every Authority decision reviewed and decided on the merits during FY 1999. Authority decisions issued in the last four years and reviewed on the merits by Federal Courts were the subject of favorable appellate opinions in approximately 88 percent of the cases, as compared with an overall favorable rate of only 52 percent for Authority decisions reviewed in the preceding 16 years. Most significantly, in FY 1999, the Authority obtained favorable results in both of the Supreme Court proceedings in which the Court reached the merits of Authority decisions.
Revision of Negotiability Regulations: The Authority completed the process of revising its negotiability appeals regulations in FY 1999, with final regulations effective April 1, 1999. The revisions reflect the Authority's goal of improving and expediting negotiability proceedings. Significant aspects of the regulations include conferences designed to narrow and clarify issues to be resolved; revision of procedures to enable the Authority, where appropriate, to resolve all aspects of a dispute; and clarification of the responsibilities of each party.
Prior to the effective date of the regulations, the Authority conducted training to assist parties in understanding their responsibilities under the revised regulations. A total of 15 training seminars were conducted in Boston, Chicago, San Francisco and Washington, DC, with additional outreach provided upon request. To further assist parties, the Authority developed a printed guide and a training video on the regulations. In the first six months under the new procedures, preliminary numbers show that, after FLRA involvement, one-third of the cases filed under the new regulations, and not dismissed for procedural reasons, were quickly resolved by the parties and withdrawn.
Outreach and Training: In FY 1999, the Authority provided significant training and outreach to the labor-relations community. Along with training on the revised negotiability regulations, Authority staff provided training sessions on arbitration appeals at two training conferences sponsored by the FLRA as part of its 20th anniversary commemoration. In response to the recognized needs of its customers, the Authority intends to further expand its leadership role in providing out reach and training to the labor-management community.
Representation Cases
In U.S. Department of Defense, National Guard Bureau, 55 FLRA No. 115 (1999), the Authority denied the Union's application for review of the Regional Director's (RD's) decision dismissing its petition to consolidate existing bargaining units of National Guard technicians in 39 states, the District of Columbia, Puerto Rico, and the Virgin Islands. The Authority held that a consolidated national bargaining unit was not appropriate, because such a unit would not recognize the role of state officials in the administration of the technician program. The Authority noted that National Guard technicians are Federal employees, but that they work under the immediate control of state officers. The Authority affirmed the RD's finding that the Technician Act provides state officials with much of the authority over the technicians' employment and labor relations matters. The Authority found that the separate authority exercised by the states over their respective military missions indicated a lack of integration of mission and function across state lines that outweighed any similarity in the duties performed by technicians. Because the Technicians Act granted state officials some policy- making authority, the Authority affirmed the RD's finding that consolidation would not be consistent with the dispersed policy-making authority over the technicians' personnel and labor relations policy. The Authority also found that the RD properly applied established law in determining that consolidation would not promote effective dealings or the efficiency of agency operations, because the proposed unit would extend across state lines and would require a structuring of the National Guard inconsistent with the dictates of the Technicians Act. The Authority noted, in this regard, the RD's finding that effective bargaining relationships were already in existence at the state level.
In U.S. Department of Veterans Affairs, 55 FLRA No. 132 (1999), the Authority granted the Union's petition for review of the Regional Director's (RD's) decision dismissing a petition for unit clarification of a vacant position. The Authority found that there was an absence of Authority precedent addressing whether an RD must resolve a representation petition seeking to clarify the unit status of a vacant position where the unit determination is a collateral issue necessary to the resolution of a grievance at arbitration. The Authority concluded that an RD must resolve a petition for unit clarification of a vacant position as long as both parties agree, or the arbitrator decides, that the unit determination is necessary to the resolution of the grievance at arbitration. Where a determination has been made that a unit clarification is needed, the parties must place the grievance in abeyance pending a decision on the unit clarification petition. In so holding, the Authority extended its precedent established in Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 21 (1990) (Fort Bragg), which required an RD to resolve the unit clarification of a vacant position only where the arbitrability of the grievance was at stake. The Authority found that this extension of Fort Bragg was warranted in light of the Statute's policy favoring the resolution of employee grievances through arbitration and the recognized centrality of arbitration under the Statute.
Unfair Labor Practice Cases
In United States Immigration and Naturalization Service, Washington, D.C. and National Border Control Council, American Federation of Government Employees, AFL-CIO, 55 FLRA 69 (1999) (Member Wasserman dissenting in part), the Authority modified the framework for determining when an agency violates section 7116(a)(6) by implementing a change in conditions of employment (thereby refusing to maintain the status quo). Reviewing the terms of the Statute and its purposes and policies, the Authority stated that preventing the implementation of changes in conditions of employment prior to the competition of bargaining is an objective of the general duty to bargain enforced by section 7116(a)(5). The Authority found that nothing in the express terms of the Statute or in its purposes or policies imposes a separate, implied obligation under section 7116(a)(6) to maintain the status quo. The Authority concluded that, henceforth, the question of whether an agency violates section 7116(a)(6) of the Statute by implementing changes in conditions of employment would be resolved based on whether the agency cooperates with Panel procedures or a Panel decision requiring it to maintain the status quo. The Authority noted that this modification does not make any change in the bargaining obligation of agencies and unions, as the agency's obligation under section 7116(a)(5) to maintain the status quo -- both up to and through impasse resolution procedures -- remains intact. The Authority left to the Panel to determine whether to adopt specific procedures concerning the maintenance of the status quo, or whether to issue such orders under specific instances. Finding that the record before the Authority in this case did not provide a sufficient basis for resolving the complaint under the modified framework, the Authority remanded the complaint to the Judge for a determination of what, if any, further proceedings were necessary.
In U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA No. 64 (1999) (Member Cabaniss dissenting), the Authority reviewed a Judge's decision that the Agency failed to comply with section 7114(a)(2)(B) of the Statute by denying employees' requests to have a Union representative present during examinations in connection with an investigation. The Statute requires that employees be allowed such representation when they reasonably believe that the examinations may result in disciplinary action and if they request such representation. There were no exceptions to the Judge's finding that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to comply with the requests of certain employees. However, the Union filed exceptions to the Judge's dismissal of allegations as to another employee whom the Judge found had not made a valid request. The Authority stated that the adequacy of a request for representation depends on the facts of each case, and that such a request need not be made in any specific form. Although the employee did not specifically request "union" representation, he asked for an attorney, and then said, "I want somebody to talk to." The Authority found that by not granting the request, and proceeding with the examination, the denial was "preemptive" and effectively foreclosed further discussion to clarify whether the employee wanted a union representative. Accordingly, the Authority granted the Union's exceptions and modified the Judge's order. Contrary to the Judge, the Authority also found, based on all the circumstances, that the appropriate scope for posting the notice was nationwide.
In U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA No.127 (1999) (Member Cabaniss dissenting in part), the Authority reviewed exceptions to a Judge's decision involving 12 consolidated ULP complaints. The Authority granted the Respondent's exception and dismissed one complaint, finding that the Respondent had demonstrated "special circumstances" warranting its denial to the Union president of access to the penitentiary during a period when the president was on home duty status pending an investigation into certain matters. The Authority denied the Respondent's other exceptions. The Authority noted that management officials, specifically the warden, committed numerous egregious statutory violations, including making anti-Union statements at a mandatory meeting of all employees. Applying the standard for nontraditional remedies set forth in F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149 (1996), the Authority granted the following extraordinary remedies, in addition to the traditional posting of a notice and issuance of a cease-and-desist order: (1) it directed the Respondent to call a mandatory meeting of all employees at the penitentiary, at which the warden (or an Authority representative) would read the notice aloud; (2) it directed the parties to show cause why the Authority should not refer the matter to the Office of Special Counsel, or direct the Respondent to make such a referral, requesting an investigation into whether the warden committed prohibited personnel practices and any action deemed appropriate by the Special Counsel; and (3) it directed the Respondent to distribute copies of the notice to all employees.
In Social Security Administration, Region VII, Kansas City, Missouri, 55 FLRA No. 95 (1999), the Authority adopted the Judge's findings that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with advance notice of the Respondent's support for elimination of smoking in the cafeteria of the building in which the Respondent was a tenant, and by refusing to bargain over the elimination of smoking in the cafeteria. The Authority clarified that both a "covered by" defense under U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA, Baltimore), and a defense under Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), may, under appropriate circumstances, be raised in the same case. The Authority held that the Judge properly concluded, under IRS, that the parties' agreement did not permit the Respondent's refusal to bargain, because the provision relied on by the respondent only banned smoking in SSA facilities, not other agencies' facilities where SSA was merely a tenant (such as the cafeteria here). Applying SSA, Baltimore, the Authority also found that the matter of smoking in the cafeteria was not "covered by" the parties' agreement. In this connection, the Authority noted the Judge's finding that the parties had previously agreed, in a memorandum of understanding, that any matter not set forth explicitly and comprehensively in an agreement was not foreclosed from further bargaining. Because the parties' national agreement addressed only SSA facilities, the Authority concluded that the agreement did not foreclose bargaining over smoking in non-SSA facilities. Accordingly, the Authority affirmed the Judge's finding that the respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the change in smoking policy.
Negotiability Cases
In National Federation of Federal Employees, Local 1669 and U.S. Department of Defense, Arkansas Air National Guard, 188th Fighter Wing, Fort Smith, Arkansas, 55 FLRA 63 (1999), the Authority concluded that consistent with Authority precedent, uniform allowances for National Guard civilian technicians were within the duty to bargain. The Agency had argued that Authority precedent concerning the negotiability of uniform allowance proposals was no longer applicable following amendments to the Technician Act, 32 U.S.C. § 709(b). As a result of these amendments, civilian technicians who receive a uniform allowance under 37 U.S.C. § 417 or 418, may not receive an allowance under 5 U.S.C. § 5901 or 10 U.S.C. § 1593. The Authority found that nothing in sections 417 and 418 prohibited bargaining over uniform allowances, and that sections 417 and 418 did not render uniform allowances a military aspect of employment. The Authority explained that Authority precedent has consistently found that proposals relating to the wearing of the uniform during the time when technician duties are performed relates to a civilian aspect of employment. The Authority also found that the comprehensiveness of a statute does not determine whether a proposal is outside the duty to bargain, and that the appropriate inquiry is whether the statute provides the Agency with discretion to agree to the proposal. In this regard, the Authority concluded that there was no basis to conclude that the Agency noted that the Agency did not argue that it lacked discretion over this matter.
In American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA No. 40 (1999), the Authority addressed a proposal that identified the types of equipment that airport immigration inspectors would be allowed to wear in the performance of their duties and that prescribed the work areas or types of duties wherein the inspectors would be allowed to wear that equipment. Among other things, the proposal specified when certain inspectors would be permitted to carry firearms. The Authority agreed with the Agency's undisputed claim that the proposal affected management's right to determine internal security practices at the airport. Applying the Authority's long-standing Kansas Army National Guard test, the Authority found that the proposal was not an appropriate arrangement under section 7106(b)(3) of the Statute. Because the proposal would require the Agency to permit employees to use tools or devices in furtherance of the Agency's law enforcement mission, the Authority held that the proposal concerned the means by which the Agency performed its work, within the meaning of section 7106(b)(1) of the Statute. Accordingly, the Authority concluded that the proposal was negotiable at the Agency's election.
In National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 55 FLRA No. 146 (1999), the Authority addressed the negotiability of a proposal on remand by the U.S. Court of Appeals for the District of Colombia Circuit in U.S. Department of Transportation, Federal Aviation Administration v. FLRA, 145 F.3d 1425 (D.C. Cir. 1998). The proposal provided that Air Traffic Assistants (ATAs) be eligible for "familiarization" flights on commercial airlines on non-duty time through the proposed Liaison and Familiarization Travel program (proposed FAM program). The Authority found that, consistent with the Union's modifications in the proposal eliminating any training justification for the proposed FAM program, the program's purpose was to provide ATAs with free travel on non-duty days. The Authority also found that nothing in the record established that providing such free travel to ATAs is a part of, or in furtherance of, the Agency fulfilling its aviation duties and powers within the meaning of the FAA's gift acceptance statute, 49 U.S.C. § 326(a). The Authority concluded that because the proposal requires the Agency to accept a gift from a prohibited source and because, under the specific circumstances presented by the proposal, the Agency could not accept the travel pursuant to its gift acceptance statute, the proposal was inconsistent with 5 C.F.R. § 2635.202. Accordingly, the Authority found that the proposal was outside the duty to bargain under section 7117(a)(1) of the Statute.
In American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas, 55 FLRA No. 143 (1999), the Authority addressed the negotiability of two Union proposals, which were submitted in response to the Agency's plan to transfer to a different location the staffing functions performed for employees graded GS-12 and below. Union Proposal One would require the Agency to transfer those functions for all employees, GS-3 through Executive level, including both bargaining unit and non-bargaining unit positions. Union Proposal Two would require the Agency to transfer those functions only for bargaining unit positions. The Authority held that the proposals affected management's right to determine its organization under section 7106(a)(1) of the Statute because the proposals would dictate where, organizationally, the Agency's staffing function would be established. The Authority found that the proposals did not concern the numbers, types, and grades of employees assigned to an organizational subdivision, within the meaning of section 7106(b)(1) of the Statute. In this connection, the Authority held that the proposals would transfer personnel work, regardless of the grades of employees performing that work -- i.e., the proposals did not concern the grade of employees that would be transferred. The Authority also determined that the proposals did not concern the methods and means of performing work under section 7106(b)(1), because neither proposal prescribed the way in which the Agency would be required to perform its work. Because the proposals affected management's right to determine its organization and the Union failed to demonstrate that the proposals constituted matters under section 7106(b)(2) or (3), the Authority dismissed the Union's petition.
Arbitration Cases
In U.S. Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington and National Air Traffic Controllers Association , 55 FLRA No. 46 (1999), the Authority reviewed an arbitration award that found the Agency had violated section 7116(a)(1) of the Statute when it confiscated responses to a survey that the Union had used to poll its membership. The Agency claimed that the award violated its right under section 7106(a)(1) to determine its internal security practices. The Authority stated that, under Authority precedent, an arbitration award will be found to affect management's right to determine its internal security practices when the Agency demonstrates "a link or reasonable connection between an agency's goal of safeguarding personnel or property or of preventing disruption of agency operations and the disputed practice." The Authority deferred to the Arbitrator's factual finding that the Agency had failed to establish a reasonable link between the responses and the Agency's internal security. The Authority also denied the Agency's exceptions that the Arbitrator failed to conduct a fair hearing and exceeded his authority, that the award failed to draw its essence from the parties' agreement, and that the award was contrary to a government regulation.
In U.S. Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 55 FLRA No. 136 (1999), the Authority reviewed an Arbitrator's award that sustained in part a grievance and awarded an asbestos hazardous pay differential to certain Air Traffic Controller Specialists (ATCSs) for the period of time during which they worked in the control room of the Boston Air Traffic Control Center. The Arbitrator had found that the ATCSs' exposure to asbestos was "directly connected," within the meaning of an Agency regulation, with the performance of their assigned duties. In so finding, the Arbitrator failed to address the Agency's interpretation of its own regulation, which would not support a finding that the exposure was "directly connected," because they were exposed by virtue of a contractor failing to adequately contain asbestos during its removal. The Authority found that the Arbitrator erred by failing to defer to the Agency's interpretation of its own regulation, because that interpretation was not plainly erroneous or inconsistent with the regulation. In so finding, the Authority noted that the Agency's interpretation of the regulation had been public since at least 1993 and reflected the views of the Agency head. Additionally, the Authority found that the record supported a finding that the Agency's interpretation of the regulation was not first developed in the context of the arbitration. As the award was inconsistent with the Agency's regulation, the Authority granted the Agency's exceptions and vacated the award under section 7122(a)(1) of the Statute. Because the underlying award of back pay was vacated, the Authority found that there was no basis for an award of attorney fees under the Back Pay Act.
In U.S. Department of Defense, Hale Koa Hotel and Service Employees International Union, Local 556, 55 FLRA No. 112 (1999), the Authority reviewed an arbitration award that upheld the Agency's imposition of discipline against the grievant, but ordered that the grievant's 5-day suspension be reduced to a 1-day suspension. The grievant had engaged in a heated dispute with his supervisor and was suspended for 5 days for an "insubordinate response to instructions and abusive language" towards a supervisor. The Agency filed exceptions, claiming that the award was deficient under section 7122(a)(1) of the Statute because it conflicted with an Agency regulation, and that it was based on a nonfact because the Arbitrator misapprehended the meaning of "offense" and improperly characterized the grievant's misconduct as a first offense. The Authority stated that it is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation, and the agreement, rather than the regulation, governs the matter in dispute. The Authority found that the parties' agreement incorporated the Agency's regulation that includes the table of penalties, and therefore the issue before the Authority was whether the award was deficient as failing to draw its essence from the parties' agreement. The Authority concluded that the Agency had not demonstrated that the Arbitrator's interpretation and application of the agreement incorporating the regulation was unfounded, implausible, or irrational. The Authority also rejected the Agency's argument that the award was based on a nonfact, deferring to the Arbitrator's factual finding that the grievant's misconduct was the "first occurrence of insubordination" and was a different offense than the misconduct that led to the prior suspension.
The FLRA's Administrative Law Judges, who are appointed by the Authority to hear unfair labor practice charges prosecuted by the FLRA's General Counsel, successfully worked to resolve more cases more quickly during the past fiscal year.
The Office of Administrative Law Judges (OALJ) continued to pursue its Unfair Labor Practice Settlement Judge Project, dedicated to promoting effective voluntary settlement of unfair labor practice complaints. Under the Project, the Chief Administrative Law Judge assigns a judge (other than the trial judge) or a settlement attorney to conduct settlement conference negotiations with the parties before trial. During FY 1999, of the 192 cases in which parties requested assistance, 144 cases, or more than 75 percent, were resolved under the Settlement Judge Program before trial. Cases that settled under the Program settled earlier in the process. The number of expensive last minute "count house steps" settlements has also been dramatically reduced. In FY 1999, these more costly late settlements were just 1.9 percent of all settlements, down from a high of 15 percent in 1996 when the Program began.
The OALJ also saw a 21 percent increase in its cases received compared to FY 1998. During FY 1999, OALJ received 347 cases, closed 307 cases and ended the year with 85 cases pending. Of the cases closed, 257 were settled, withdrawn, or stipulated directly to the Authority and 50 cases resulted in decisions. There was a 7 percent increase in the number of cases closed over FY 1998. The percentage of Administrative Law Judge decisions that were accepted by the parties without appeal to the Authority remained high with 48 percent of the decisions issued by the OALJ becoming final and binding on the parties.
Revision of Unfair Labor Practice Investigatory Regulations: The Office of the General Counsel (OGC) issued a Federal Register notice of proposed rule making in August 1998, to revise the regulations regarding prevention, resolution, and investigation of unfair labor practice (ULP) disputes. The purpose of these proposed regulations is to facilitate dispute resolution and to simplify, clarify, and improve the processing of ULP charges. Prior to adoption of the final rules, a series of meetings was conducted across the country to solicit input from FLRA's customers. After considering all comments received, the OGC issued final regulations in November 1998, which became effective in January 1999. The revised regulations provide for alternative dispute resolution services, which implement the FLRA's agency- wide collaboration and alternative dispute resolution initiative, that assists labor and management in developing collaborative relationships and provides dispute resolution services. In May 1999, the OGC held an all- employee ULP Investigatory Training Conference focused on developing employees' investigatory skills, introducing employees to an array of investigatory techniques and methods, and the revised ULP regulations.
Unfair Labor Practice Manual: The OGC developed an Unfair Labor Practice (ULP) Case Handling Manual to address the prevention, resolution, and investigation of unfair labor practice disputes. The ULP Case Handling Manual provides operational and procedural guidance to OGC staff and the parties. This Manual is available for purchase from the Government Printing Office and is available on the FLRA's web site.
Guidance Memoranda: In order to improve the quantity, quality and timeliness of the work performed and the services provided, the OGC continued to issue policy and guidance memoranda to its Regional Directors. These materials are also made available to FLRA customers in order to provide leadership in promoting productive labor-management relations in the Federal sector. During FY 1999, the OGC issued guidance memoranda on: The Relationship Between the Federal Service Labor-Management Relations Statute and Equal Employment Opportunity Matters, and Developing a Labor Relations Strategic Plan. In addition, employee and customer training was conducted at the national and regional levels on the above topics.
Management and Strategic Planning Initiatives: In the technology area, the OGC continued to work with other FLRA components to improve its automated capabilities. For example, the programming for the OGC's automated case tracking system was completed. In order to continue to enhance the capabilities of its technical experts, the OGC conducted three training conferences for its senior litigation specialists, senior dispute resolution specialists and senior representation specialists, respectively, which were aimed at improving each group's subject matter knowledge and skills. As previously noted, in May 1999 the OGC conducted an Investigatory Training Conference which focused on developing employees' investigatory skills, introducing employees to an array of investigatory techniques and methods, and the revised ULP regulations.
Dispute Resolution Activities: As part of the CADR Program, the OGC has continued to use innovative approaches to resolving labor-management disputes in the Federal sector instead of resorting to costly, time- consuming litigation, which often fails to address the real problems giving rise to a dispute. These approaches, which focus on improving the parties' relationship, include facilitation, intervention, training and education services delivered jointly to management and union representatives on the Statute, interest-based bargaining, alternative dispute resolution and relationship building and intervention. These alternative approaches to resolving cases -- which are praised by management and union representatives alike -- have provided another tool for OGC employees to use in trying to resolve the parties' disputes, as well as helping the parties to work toward resolving their own disputes. As a result, the parties have continued to file fewer unfair labor practice charges than five years ago, and they are trying to resolve many of their issues themselves, thus avoiding litigation. During FY 1999, the OGC provided approximately 275 alternative dispute resolution (ADR) training services, which have been included in the Collaboration and Alternative Dispute Resolution Program workload table. To assist employees in the delivery of these services, the OGC has continued to develop and disseminate training materials to employees. Among the materials developed were: an OGC ADR Services Program, which collects in one publication information about the various ADR programs provided by the OGC; and an ADR Services Tool Kit, which provides information, options and suggestions to OGC employees on the delivery of ADR programs.
In recognition of the importance of ADR to its continued success, the OGC undertook the following activities: provided for ADR services in its revised ULP regulations which are discussed below; developed a reporting system, which will more accurately account for ADR services provided to the parties; developed ADR evaluation forms to measure the success of training services provided; and, in conjunction with CADR, participated in establishing the requirements for an ADR database to facilitate accounting for, and evaluation of, OGC ADR services. Although the OGC has accounted for its efforts in providing ADR training services over the last five years, this is the first fiscal year that the kinds of ADR services provided in processing cases have been fully captured. These statistics have been reflected in the table entitled Alternative Dispute Resolution Case Services (since the Collaboration and Alternative Dispute Resolution Program table deals only with ADR training services provided by the OGC and not ADR services related to OGC cases).
The OGC has engaged in several major ADR initiatives during FY 1999. The OGC initiated a new venture with the Social Security Administration in their San Francisco and Denver offices and with the Department of Veterans Affairs in New England (VISN I), Mid-Atlantic (VISN VI), and Northern California (VISN XXII) to develop labor relations strategic plans. The OGC continued to work with the Immigration and Naturalization Service nationwide on partnership development and relationship building. Additionally, the OGC worked with the Army Personnel Reserve Command in St. Louis, Missouri on the development of a labor relations strategic plan and the design of an ADR system; and with the Defense Finance and Accounting Service assisting them with developing an interest-based approach to negotiating a collective bargaining agreement.
Cases Received: The OGC has continued to make significant strides in the processing of ULP cases. In FY 1999 the parties filed 5,686 cases with the OGC. The OGC reduced overage ULP cases from 25 percent in FY 1998 to 16 percent by the end of FY 1999. Similarly, the OGC reduced its overage Appeals cases from 19 percent to 4 percent by the end of FY 1999.
Initial Dispositive Actions: After a charge is filed, the OGC staff tries to resolve the dispute. In FY 1999, 5,913 initial dispositive actions were taken by the OGC. Of these actions, 26 percent were pre-complaint settlements achieved by OGC and the parties; 24 percent of the charges were dismissed; 45 percent of the charges were withdrawn; and 6 percent of the charges resulted in the issuance of an unfair labor practice complaint (figures rounded).
Unfair Labor Practice Appeals: The OGC's streamlined Appeals process, which was implemented in FY 1997 to speed up decisions on appeals, has continued to result in quality and timely decision-making. As a result of this process, the OGC was able to close 560 Appeals cases, while receiving 508 Appeals during FY 1999. These figures are indicative of the OGC's efforts to improve its responsiveness to the concerns raised in these cases by agencies, unions and individuals.
Post-Complaint Actions: In those small number of cases where the OGC is unable to resolve an unfair labor practice charge, the OGC issues an unfair labor practice complaint. The OGC issued 356 such complaints in FY 1999. In FY 1999, the OGC was successful in working with the parties to resolve more than 87 percent of the complaints scheduled for hearing, without resorting to costly litigation consistent with the OGC's Settlement Policy. Of those complaints that could not be settled, the OGC litigated 31 cases before the FLRA's Administrative Law Judges in order to enforce the Statute.
The OGC received 503 new representation petitions in FY 1999 and closed 500 cases. As in the ULP area, the OGC is continuing to emphasize timely case processing. For example, a reduction from 41 percent to 16 percent was made in pending Representation caseload more than 90 days old without issuance of a notice of hearing.
The OGC has continued to take actions to improve its handling of Representation cases through the issuance of quality standards and time goals designed to ensure the fair, timely and complete processing of representation cases. A Representation Case Handling Manual, which was issued in March 1997 and is available for purchase from the Government Printing Office, provides procedural and operational guidance to OGC staff and the parties. The Manual has greatly assisted the parties in understanding the representation process and the regulatory requirements pertaining to this process.
The Panel resolves impasses between Federal agencies and unions representing Federal employees arising from negotiations over conditions of employment under the Federal Service Labor-Management Relations Statute, and the Federal Employees Flexible and Compressed Work Schedules Act. If bargaining between the parties, followed by mediation assistance, proves unsuccessful, the Panel has the authority to recommend procedures and to take whatever action it deems necessary to resolve the impasse. The Panel's staff also supports the Foreign Service Impasse Disputes Panel in resolving impasses arising under the Foreign Service Act of 1980. The following is a brief summary of the Panel's accomplishments and activities during FY 1999.
The Panel strongly believes that voluntary settlements of Federal sector bargaining impasses are in the best interests of the parties and the public. In this regard, it has been the Panel's consistent experience that the best way to promote voluntary settlements is to provide face- to-face assistance to the parties. In FY 1999, the Panel provided such assistance in 65 cases, with 30 complete settlements achieved. The Panel supplements its face- to-face efforts through the use of telephone conferences. Overall, voluntary settlements occurred in 60 cases, representing close to 33 percent of the cases closed during this period. Many of these voluntary settlements occurred as a result of the direct involvement of individual Panel Members who provided assistance through informal conferences and mediation-arbitration.
In those cases in which face-to-face assistance was provided, but which ultimately required a formal Panel decision, the number of issues in dispute was frequently reduced. The Panel also reached a better understanding of the underlying workplace problem. The success of the Panel Members and Staff in the voluntary resolution of disputes, many of which are complex and contentious, is attributable to the expert mediation and problem-solving skills.
During FY 1999, the Panel continued its collaboration with Federal Mediation and Conciliation Service (FMCS) by experimenting with new ways of providing the parties with added incentives to reach voluntary agreements. In addition to a traditional option of directing the parties to return to the bargaining table for concentrated efforts with FMCS assistance, the Panel included mediators in selected cases in its prejurisdictional investigative process. While it is still too early to evaluate the effectiveness of providing mediators with additional tools to assist their efforts, this approach illustrates the Panel's search for innovative methods of responding to the challenges of Federal sector impasse resolution.
The Panel also has continued in its collaboration with the FLRA's CADR Office. Although no suitable cases for referral arose in FY 1999, the Panel will continue to screen cases for those appropriately referred to CADRO. Such efforts typically involve training in interest-based principles with the goal of narrowing, if not resolving the parties' impasse. If the Panel ultimately issues a decision in the matter, CADRO's assistance often permits the parties to identify their real interests, thereby clarifying the issues in dispute.
While voluntary settlement is the Panel's preferred dispute resolution outcome, there are cases that require the Panel to impose terms on the parties. During FY 1999, the Panel or its representatives resolved 33 cases through written decisions. The length of these decisions varied depending on the nature and complexity of the case. In each case, the Panel and its representatives provided finality to the collective bargaining process by issuing prompt decisions based on clear rationale.
The Panel conducted its first customer survey in September 1995. Since that time the Panel has continued to gather information from its customers by holding "round table" discussions throughout the country, participating in training seminars, conferences, and symposia. These events allow the Panel to hear from its customers how it can better address their needs. The Panel's FY 1999 round table discussion was held in May 1999, in Denver, Colorado, in conjunction with the FLRA 20th Anniversary National Training Conference. Informational presentations by Panel Members and professional staff at conferences and training seminars are crucial in the current era of downsizing and government reorganizations for educating new labor-management relations practitioners. Panel Members and professional staff participated in ten such events during the fiscal year.
The predominant issues presented to the Panel included: (1) personnel matters such as reassignments, reductions- in-force, merit promotion, reorganizations, performance evaluations, and details; (2) facilities (such as parking, office design including barrier walls, equipment, and furniture); (3) hours of work (particularly the establishment and termination of CWS, flexitime, shifts, leave, and flexible workplace); (4) institutional matters, such as union and management rights, official time for union representatives, union facilities, and travel and per diem for negotiations; and (5) negotiations over wages and fringe benefits for Department of Defense (DOD) teachers employed at stateside schools and DOD, employees of nonappropriated fund instrumentalities, overtime, and transit subsidies.
The Panel is the last step in Federal sector collective bargaining -- the substitute for the strike and lockout in the private sector. The variety of procedures it uses to resolve impasses in negotiations include mediation, fact finding, written submissions, and arbitration by Panel Members, staff members, and private providers. The quick, fair, and voluntary resolution of disputes is the Panel's ultimate goal -- flexibility and diversity of procedures is the means used to achieve it.
These objectives are achieved in a number of ways, including the flexible selection of a dispute resolution procedure designed with the specific intent of moving the parties towards voluntary accommodation and, ultimately, the resolution of the impasse.
Environmental Protection Agency, Region 2, New York, New York and Local 3911, American Federation of Government Employees, AFL-CIO, Case No. 99 FSIP 69 (September 30, 1999), Panel Release No. 425 (Decision and Order). The case concerned official time for representational functions and Union-sponsored training; travel expenses; Union office space; and implementation of a 4/10 compressed work schedule (CWS) and credit hour plan. Following prejurisdictional cooperative efforts during which the parties worked with a mediator from FMCS and a Panel Representative, the Panel determined that the dispute over those four issues should be resolved through an informal conference by telephone with a Panel Representative. As to other unresolved issues, the Panel at first recommended, and later directed, that the parties submit them to a mediator- arbitrator of their choice for resolution. During the procedure, the parties were only able to resolve a portion of one issue concerning the performance of representational duties. The parties thereafter submitted their final offers and written statements of position to the Panel.
On the issue of official time and Union-sponsored training, the Employer essentially proposed to grant the Union a block of official time of up to 2,080 hours; and up to 120 hours for Union-sponsored training. The Union proposed that representatives be granted "reasonable and necessary" amounts of official time and up to 600 hours for Union-sponsored training. The Panel determined that the impasse should be resolved on the basis of a compromise, adopting the Union's proposal that representatives be granted "reasonable and necessary" amounts of official time, noting that the provision would provide flexibility if representational duties increased. As to Union-sponsored training, the Panel adopted the Employer's proposal which increased by 50 percent the amount of time for such training; it also adopted the Employer's proposal on official time procedures. On the issue of travel expenses, the Employer basically proposed to limit reimbursement to travel between Edison, New Jersey, and New York City, for partnership meetings and joint labor-management training; other travel expense requests would be handled on a case-by-case basis. The Union proposed the Employer be required to pay for travel expenses of Union representatives performing representational duties in accordance with Federal Travel Regulations, as well as for partnership meetings and joint labor-management training. The Panel adopted the Employer's proposal, finding the Union's proposal would remove from the Employer any discretion to deny travel requested by Union representatives. On the issue of office space and use of space, the Employer proposed that the Union retain its existing space and be granted "priority" for the use of an adjacent conference room. The Union proposed that it retain its existing office space and be granted the exclusive right, as is the current practice, to use the adjacent conference room. In other locations, it would reserve conference rooms as needed. The Panel adopted the Union's proposal. On the issue of credit hours and CWS, the Employer essentially proposed that the current flexitour schedule be continued. The Union proposed that in addition, employees be given an option of working under a 4/10 CWS and a credit hour plan during a one year test period. The Panel determined the impasse should be resolved by a compromise solution; it adopted the Employer's proposal to continue the current flexitour schedule, but concluded the Union's 4/10 CWS and credit hour test program should be implemented as a pilot for a period of six months to determine the feasibility of implementing both schedules.
Department of the Army, Headquarters, U.S. Army Communications-Electronics Command, Fort Monmouth, New Jersey and Local 476, National Federation of Federal Employees, Case No. 99 FSIP 79 (August 3, 1999), Panel Release No. 423 (Decision and Order). The Panel determined that the dispute, concerning whether the Employer should provide 100 percent official time to one Union representative to handle all representational duties on behalf of the bargaining unit, should be resolved through an informal conference conducted by Panel Member Bonnie Prouty Castrey. At the informal conference, a tentative agreement was drafted but not executed; the parties then submitted final offers and written statements in support of their positions. The Union proposed that 100-percent official time be awarded to one person to bring employees in the unit "in line" with other collective bargaining agreements at Fort Monmouth. The Union asserted that it was unable to perform its representational duties adequately when it did not know from day to day how much time would be approved by management. The Employer proposed to make appropriate workload adjustments to permit Union representatives time to perform their representational duties. It pointed out that the Agency had granted each Union request for official time, and that a departure from the status quo was unnecessary. The Panel adopted the Employer's proposal, concluding that the Union had neither substantiated its claim that past use of official time had reached 100 percent, or nearly 100 percent, for one Union representative, nor proffered sufficient evidence that its representatives' requests for official time were being denied by the Employer. The Panel pointed out that, during the informal conference, the Union was unable to identify a bargaining-unit member who would be willing to commit to 100 percent representational activity.
Department of the Treasury, U.S. Customs Service, Washington, D.C. and National Treasury Employees Union, Case No. 98 FSIP 52 (May 13, 1999), Panel Release No. 420 (Decision and Order). This long-standing dispute concerned negotiations over an alternative to the statutory procedures for resolving equal employment opportunity matters. The Panel initially directed (in FY 1998) that the parties engage in further mediation efforts with the assistance of the Collaboration and Alternative Dispute Resolution (CADR) Program. While the issues in dispute were sharpened, when the issues were not resolved, the Panel then directed the parties to participate in a factfinding hearing conducted by Panel Member Gilbert Carrillo. Member Carrillo issued a Factfinder's Report, containing recommendations for settlement that combined features of both parties' final offers. After the parties were unable to agree on the use of the Factfinder's recommendations as the basis for settling the matter, the Panel issued a decision ordering the adoption of his recommendations to resolve the impasse.
Department of Commerce, Patent and Trademark Office, Arlington, Virginia and Patent Office Professional Association, Case No. 99 FSIP 15 (March 29, 1999), Panel Release No. 419 (Arbitrator's Opinion and Decision). The Panel determined that the parties' impasse, which arose during negotiations over a new consolidated facility, should be resolved through mediation-arbitration by Panel Member Mary E. Jacksteit. The parties' proposals were grouped into packages of related issues, and they were instructed that if Ms. Jacksteit was unable to mediate a complete settlement she would be restricted, on any remaining issues, to selecting from between their final offers on a subject package basis, insofar as they were otherwise legal. As a result of her mediation efforts, the parties reached tentative agreement on 16 of the 21 packages in the case, which were eventually ordered as part of the Arbitrator's decision. The five packages of proposals which remained unresolved were: (1) Future Bargaining and Continuation of Past Practices; (2) Window Space; (3) Parking; (4) Carpeting, Painting, Finishing, etc.; and (5) Timing of Construction/ Maintenance Work. On the first issue, the Arbitrator adopted the Union's last best offer, finding that it met the Employer's interest in not being obligated to negotiate over all items reserved for future bargaining regardless of how it assesses the negotiability of any of the Union's proposals. Regarding window space, the Arbitrator concluded that the Employer's concern that the Union's proposal would mandate a preference for assigning exterior offices to all GS-14 bargaining-unit employees before any other use is made of exterior space, when the implications of that preference could not be predicted, was well founded. Accordingly, she adopted the Employer's final offer, which required management to use its best efforts to place distributed space (e.g., pantries, copy rooms, etc.) in interior spaces, and to maximize the number of private, exterior offices. On the issue of parking, the Arbitrator found the Union's claims that management's proposals would leave it without a viable opportunity to bargain over important aspects of parking in the new consolidated facility unsubstantiated, and therefore adopted the Employer's final offer essentially requiring future bargaining over parking issues. She also adopted the Employer's final offer on Carpeting, Painting, Finishing, etc., because it minimized unscheduled painting costs. Finally, the Arbitrator adopted the Union's final offer on the issue of the timing of construction and maintenance work because there was little substantive difference between the proposals, and the Union's wording provided a salutary acknowledgment of the potential impact on employees of working in a building still under construction.
Department of Labor, Washington, D.C. and Local 12, American Federation of Government Employees, AFL- CIO, Case No. 99 FSIP 55 (closed on April 6, 1999). After the parties reached impasse over arrangements for the Employer's providing business cards to employees, the Panel determined that the dispute should be resolved through an informal conference with Panel Member Stanley M. Fisher, preceded by the parties' submitting written statements of position. As a result of his assistance, the parties resolved the disputed issue and the case was closed.
Social Security Administration, Lowell Field Office Lowell, Massachusetts and Local 1164, American Federation of Government Employees, AFL-CIO, Case No. 99 FSIP 95 (closed on September 1, 1999). After the parties reached an impasse involving an office relocation, the Panel determined that the dispute should be resolved through an informal conference with Panel Member Edward F. Hartfield. As a result of his assistance, the parties were able to resolve all 15 issues related to the move and the case was closed.
Department of Veterans Affairs, VA Medical Center, Sheridan, Wyoming and Local 1219, American Federation of Government Employees, AFL-CIO, Case No. 99 FSIP 127 (closed September 1, 1999). The parties reached an impasse during bargaining over a reduction in force (RIF) affecting Title 5 employees. They were unable to resolve issues concerning: (1) competitive and commuting areas; (2) the length of the specific notice period; and (3) placing a designated Union observer on 100-percent official time until "all RIF functions and actions are completed." Following an investigation of the case, the Panel reached two determinations. First, it determined to assert jurisdiction over all of the disputed issues and to provide assistance through an informal conference with Chair Betty Bolden. Second, in view of the fact that the Employer had taken certain steps to implement the RIF while the Panel was actively investigating the case, and to ensure that the Union would have a meaningful opportunity to present bargaining-unit employees' interests, it ordered the Employer to maintain the status quo until the dispute could be resolved. This step was also undertaken because it was believed that the resolution would be expeditious. As a result of efforts made during the informal conference with the assistance of Chair Bolden, the parties were able to reach a complete settlement of their dispute and the case was closed.
Requests for assistance filed under the Compressed Work Schedules Act, 5 U.S.C. § 6131, require an agency head to determine that the establishment of a CWS would result in an adverse agency impact, as defined therein. In addition, to terminate an existing CWS, an agency head must demonstrate that the schedule has, in fact, caused an adverse agency impact. The Panel issued Decisions and Orders in two such cases during the fiscal year.
The more notable of the two was Department of the Navy, Trident Refit Center, Kings Bay, Georgia and Local Lodge 2783, District 112, International Association of Machinist & Aerospace Workers, Case No. 99 FSIP 60 (May 11, 1999), Panel Release No. 420 (Decision and Order), where the Panel addressed an agency determination to terminate a 5-4/9 CWS for production workers. After a face-to-face informal conference with a Panel representative, and consideration of the entire record including the parties' written statements which were submitted prior to the conference, the Panel found that the Employer had met its statutory burden and thus it ordered that the schedule be terminated. In reaching this conclusion, the Panel found that the Employer failed to explain how the data it presented were causally connected to implementation of the CWS. The primary reasons for its finding of adverse agency impact were the Union's unequivocal admission that turnover times between shifts were too lengthy, and the Panel's belief that, in the circumstances of the case, the availability of CWS on all three shifts resulted in a first shift starting time which created inefficiencies in the Employer's ability to accomplish its crucial timed-overhaul mission. While skeptical that the loss per year was $2.6 million, it found that the actual amount lost was substantial enough to meet the statutory burden established by the Act.