In FY 1999, the FLRA continued its Collaboration and Alternative Dispute Resolution Program (CADR). The CADR Program implements one of the FLRA's primary strategic goals -- to reduce litigation and its attendant costs by helping the parties resolve their own disputes. The program offers collaboration and alternative dispute resolution services in pending ULP, representation, negotiability, and bargaining impasse disputes at every step, from investigation and prosecution to the adjudication of cases and resolution of bargaining impasses. The CADR Program also provides partnership facilitation and training to assist management and labor in developing collaborative relationships. The CADR Office provides support and guidance for these efforts throughout the agency and coordinates intra-component collaboration and alternative dispute resolution activities.
During FY 1999, the CADR Program experienced a rise in alternative dispute resolution requests from management and labor representatives seeking intervention assistance in disputes prior to the initiation of litigation. One example was a case involving over 200 disputed proposals that was resolved with CADR Program assistance without the need of a single negotiability appeal. Parties continue to seek intervention assistance in pending disputes and training geared toward problem solving on specific matters. During FY 1999, the three FLRA components, particularly the regional offices, provided 104 sessions of facilitation, education and follow-up training to 1,762 labor-management partnerships participants. Additionally, the CADR Office provided direct intervention services through on-site and telephone collaboration and alternative dispute resolution interventions in 18 negotiability cases.
The agency-wide CADR Program is continuing to improve and expand its services. In FY 1999, the FLRA institutionalized agency-wide policies on collaboration and alternative dispute resolution in negotiability cases by promulgating revised negotiability regulations that incorporate the CADR Program and alternative dispute resolution in negotiability case processing procedures. FLRA staff also assisted agencies and labor organizations in designing dispute resolution systems. The CADR Program is actively reaching out to interested parties through press releases, written materials, on-site briefings with Federal sector agencies, unions, neutrals and professional organizations, and participation in seminars, conferences, and meetings.
In December 1999, the FLRA announced the results of its Customer Survey. The Survey was sent to representatives of unions, agencies, and individuals who were parties before the FLRA in 1996 and 1997. The Survey sought information from participants before two of the three primary components of the FLRA -- the Authority and the Office of the General Counsel.
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 established a baseline for the Authority, and measured the effectiveness of programs initiated by the Office of the General Counsel to improve services to its customers since its earlier 1993 survey.
In general, customers were positive about the quality of case processing and with the quality of decisions. Customers also indicated a need for more timely decisions. The survey also revealed customer support for continued outreach, including enhanced web site capabilities, Town Hall meetings, and trainings and symposia.
During the remainder of the fiscal year, all components of the FLRA set ambitious goals, and met the challenge of more quickly delivering high quality decisions and program services to resolve labor-management disputes.
The three-Member Authority significantly reduced the number of cases awaiting merits decisions for more than one year. During FY 1999, 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 one-third reduction from the start of the year. Finally, the more expedited issuance of decisions contributed to substantially reducing the number of cases before the Authority to its lowest level in the Agency's history.
Other components of the FLRA were similarly successfully in improving timeliness while adhering to high quality standards:
- The Office of the General Counsel significantly reduced the percentage of overage cases in its inventory. For example, the percentage of unfair labor practice cases pending initial dispositive action over 90 days fell from 25 percent of the caseload to only 16 percent at the end of FY 1999. Similarly, the percentage of representation cases pending without issuance of a notice of hearing over 90 days was reduced from 41 percent of the caseload to16 percent.
- The Authority's Office of Administrative Law Judges' services enabled parties to resolve their disputes more quickly. The number of expensive last minute "courthouse steps" settlements (reached after spending time and resources preparing for, and traveling to, the hearing) has 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.
- The Federal Service Impasses Panel also achieved faster resolution of bargaining impasses. During FY 1999, the median age of impasse cases where labor and management reached a voluntary settlement following the Panel's procedural determination fell from 101 to 91 days.
As the fiscal year closed, the FLRA was close to meeting another customer need: installation of a search engine on its web site.
Further information regarding the FLRA's Customer Survey is available on the web site at www.flra.gov.
During FY 1999, 17 Court proceedings involving the Authority were filed and 20 Court proceedings involving the Authority were closed. Of the 20 proceedings that were closed, 10 involved merits decisions. The Authority was affirmed, in whole or in prominent part, in all 10 cases. At the close of the year, the Authority was a party to 17 cases under judicial review. Summaries of selected decisions follow.
Supreme Court Cases: In National Aeronautics and Space Administration, Washington, D.C. and NASA, Office of the Inspector General v. FLRA, 119 S. Ct. 1979 (1999), affirming 120 F.3d 1208 (11th Cir. 1997), the Supreme Court affirmed the Authority's (50 FLRA 601 (1995)) and the Eleventh Circuit's decisions that an Office of the Inspector General (OIG) investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. Relying on the language of the Statute and the Authority's interpretation, the Court rejected NASA's argument that "representative" is limited to the entity that collectively bargains with the union. The Court also held that the Authority's finding is consistent with the Inspector General Act, which provides that an agency's OIG investigators are "employed by, act on behalf of, and operate for the benefit of" that agency.
Similarly in FLRA v. Department of Justice, Washington, D.C., U.S. Department of Justice, Immigration and Naturalization Service, N.Y. District, N.Y., 119 S. Ct. 2387 (1999), vacating and remanding 137 F.3d 683 (2d Cir. 1998), the Supreme Court granted the Authority's petition for certiorari and vacated the Second Circuit's denial of summary enforcement of an Authority decision that found that the Agency had violated its employees' rights under section 7114(a)(2)(B) of the Statute. The Court directed the Second Circuit to reconsider its ruling in light of the Court's recent decision in NASA v. FLRA, 119 S. Ct. 1979 (1999).
In FLRA v. Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia, 119 S. Ct. 1003 (1999), reviewing and vacating, 132 F.3d 157 (4th Cir. 1997), the Supreme Court vacated the Fourth Circuit's decision holding that an agency is not obligated to bargain over a proposal, offered during term negotiations, that would require it to engage in union-initiated midterm bargaining. The Court rejected the Fourth Circuit's premise that the Statute imposes no obligation on Federal agencies to bargain midterm and held that the Statute was "sufficiently ambiguous" as to require deference to the Authority's interpretation. The Court stated that it was up to the Authority to determine "whether, when, where, and what sort of midterm bargaining is required." The Court remanded the case to the Fourth Circuit, which, in turn, remanded the case to the Authority for proceedings consistent with the opinion of the Supreme Court.
Bargaining Over Official Time for Lobbying: In Granite State Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999), reviewing 54 FLRA 301 (1998), the First Circuit affirmed the Authority's determination that an agency's refusal to bargain over a proposal for official time for lobbying did not violate the Statute. The Authority had ruled that the proposal was inconsistent with a prohibition in the Agency's Appropriations Act. The Court agreed with the Authority's interpretation of the Appropriations Act and affirmed the Authority's holding that the proposal was inconsistent with federal law and therefore not within the Agency's duty to bargain.
Bargaining Over Matters Under Section 7106(b)(1) of the Statute: In National Association of Government Employees, Local R1-8 v. FLRA, 179 F.3d 946 (D.C. Cir. 1999), reviewing 54 FLRA 429 (1998), 54 FLRA 457 (1998), and 54 FLRA 360 (1998), the D.C. Circuit denied the Unions' petitions for review of Authority decisions that three Agencies did not commit unfair labor practices (ULPs) when they refused to bargain over matters covered by section 7106(b)(1) of the Statute. The Court affirmed the Authority's determination that section 2(d) of Executive Order 12871, which provides that agencies "shall . . . negotiate over the subjects set forth in 5 U.S.C. § 7106(b)(1)," constitutes a direction to agency personnel rather than an election to bargain under section 7106(b)(1).
Standards of Conduct for Labor Organizations Under Section 7120: In Stuart E. Bernsen v. FLRA, No. 98-1234 (D.C. Cir. Mar. 19, 1999), reviewing 53 FLRA 1541 (1998), the D.C. Circuit denied an individual's petition for review of an Authority decision dismissing ULP complaints against an agency and a union. Agreeing with the Authority, the Court held that section 7120(e) of the Statute does not preclude a union official from serving simultaneously as an ethics counselor. The individual had claimed that such dual service created a "conflict of interest" in violation of section 7120(e). The Court disagreed, affirmed the Authority's "objective person" criteria for determining whether a conflict of interest exists within the meaning of section 7120(e), and denied the petition.
Failure to Urge Objections Before the Authority Under Section 7123(c) of the Statute: In Georgia State Chapter, Association of Civilian Technicians v. FLRA, 184 F.3d 889 (D.C. Cir. 1999), reviewing 54 FLRA 654 (1998), the D.C. Circuit denied the Union's petition for review of an Authority decision dismissing a ULP complaint. The Court found that the Union had failed to raise to the Authority the arguments that it was making to the Court and that, therefore, the Union's objections were barred by section 7123(c) of the Statute. Section 7123(c) prohibits a Court from considering objections not first raised to the Authority unless the failure to do so is excused by "extraordinary circumstances." The Court rejected the Union's argument that its failure should be excused because there had been simultaneous briefing in the case and the Union could not anticipate the Agency's arguments. The Court noted that the Union did not seek to file a reply brief with the Authority nor did it request reconsideration of the Authority's decision.
Lack of Jurisdiction: In Arkansas National Guard v. FLRA, Nos. 99-1563 & 99-1974 (8th Cir. Aug. 30, 1999 and Oct. 14, 1999), reviewing 55 FLRA 63 (1999), the Court dismissed the Guard's petition for review for lack of jurisdiction because the appeal had not been authorized by the Department of Justice or approved by the Solicitor General. The Court enforced the Authority's order requiring the agency to bargain over a proposal that the Agency provide ready to wear uniforms, including emblems, for civilian technician employees.
Freedom of Information Act Cases: In Dennis R. Means v. Phyllis N. Segal, Chair, FLRA, No. 98-5170 (D.C. Cir. Oct. 6, 1998), seeking review of a district court decision (No. 97-1301) (D.D.C. Apr. 15, 1998), cert. denied, 119 S. Ct. 1124 (1999), the D.C. Circuit summarily affirmed the district court's dismissal of an appeal of the General Counsel's refusal to issue ULP complaints and release information under the Freedom of Information Act. The district court determined that it lacked jurisdiction over the ULP claims and that the FLRA had properly withheld agency documents under FOIA Exemptions 5, 7(C), and 7(D).
Miscellaneous: In National Association of Government Employees, Local R14-23 v. FLRA, No. 98-1520 (D.C. Cir. Sept. 21, 1999), reviewing 54 FLRA 1302 (1998), the D.C. Circuit denied the Union's petition for review of an Authority negotiability decision. The Court deferred to the Authority's determination that the subject of the union's bargaining proposal is not a negotiable "condition of employment" as defined in 5 U.S.C. § 7103(a)(14) because it "relat[es] to the classification of any position."
In FY 1999, the office coordinated the implementation of the agency's 5-year strategic plan, including the FLRA FY 1999 Annual Performance Plan. In addition, the office improved in the Agency's information resources management (IRM) program, consistent with goals reflected in the FLRA strategic plan and the Annual Performance Plan.
Most of the Agency's efforts to complete its Year 2000 (Y2K) Remediation Plan were brought to fruition during FY 1999. All of the programming contained in the FLRA's case tracking systems was reviewed and modified as necessary. Two systems were completely rewritten and replaced during the period.
To bring the wide area network into Y2K compliance, new computer hardware and software was installed in each region in a conversion to a Y2K compliant Windows NT system. The new network software improved operations in all offices. A new leased-line network was also installed to reduce costs and better meet the needs of regional offices.
In addition to Y2K certification, extensive enhancements were made to the case tracking systems during FY 1999. The Member Offices and the Office of the Administrative Law Judges' systems were replaced by newer, more extensive systems and include, for the first time, the collection of ADR data. Significant improvements were also made to the OGC and FSIP systems and a new system was implemented to track CADR Office activities. At year end, two new systems were near completion, one that tracks Office of the Solicitor work products and the other that tracks the Agency's ADR training and facilitation activities.
During FY 1999, the FLRA continued to expand and improve its web site (www.flra.gov). The home page provides access to Authority decisions, OGC policy guidance, FSIP decisions, FLRA Bulletins, and other information. Three major improvements were deployed: better access to recent FLRA decisions with enriched navigation and viewing features; forms that support new negotiability regulations; and increased availability of the OGC's guidance issuances, including its litigation manual.
In FY 1999, the agency implemented a leadership development program. This program provides non-supervisory employees with leadership and management skills.
The Office of the Inspector General continued to institutionalize a contemporary oversight process encouraging a more open and consultive relationship with both management and employees. The Inspector General educates staff on various oversight issues, promotes preventative and cost effective management controls, and directs management involvement in oversight initiatives.
During FY 1999, the Office of the Inspector General issued a major audit of FLRA's FY 1998 Financial Statements and Central Services Fund, an evaluation of FLRA's compliance with the Government Performance Results Act, an internal review of the Case Control Office and closely monitored the FLRA's Y2K progress. The Inspector General also began an Internal Review of FLRA's Human Capital Investment, issued a Management Letter regarding FLRA policies, and worked with m anagement to place an emphasis on timely corrective action completion. Additionally, the Inspector General conducted nine preliminary investigations and processed 37 Hotline Requests. The Office of Inspector General also 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 initiatives.