Find Out About the Bulletin's Future (and why we've changed our name)
Vol. 5 No. 2
February 1, 1996 - May 31, 1996
The FLRA Bulletin
The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001
|News to Know|
|FSIP Final Actions|
|General Counsel's Case Handling Advice to Regional Directors|
|General Counsel's Settlement Corner|
Find Out About the Bulletin's Future (and why we've changed our name)
Last issue we sent out a call for help, asking whether you thought we should continue the FLRA's Quarterly Summary in view of our pressing need to do more with less. Readers from all over the country responded to our customer survey, answering with a resounding yes! Thank you to all who responded. We're pleased to hear that the newsletter is helping federal agencies, unions and the employees they represent.
So here's what we've decided to do:
- We're going to continue distributing the newsletter -- at least for now -- and will reevaluate its future as fiscal year 1997 budgetary realities require. However, instead of distributing it on a three month quarterly cycle (hence the old name "Quarterly Summary"), we're going to distribute it on a four month cycle (hence our new name "The FLRA Bulletin"). And while we're at it -- we've also changed our format. We hope you find our new format more accessible.
- We've reduced our mailing list to include only those people who responded to our survey. So if you have colleagues who were receiving the Quarterly Summary, but who didn't receive this issue, that's why. (But please be sure you share your copy of the Bulletin with them and tell them to call us if they want to be put back on our mailing list.)
- We're asking all of you who receive the FLRA Bulletin to circulate it to any of your colleagues who you think would also benefit from the information. After all, who knows better than you who should receive the Bulletin in your organization?
Thanks again for taking the time to respond to our survey. We hope you continue to find this information useful and that it helps you have stable and productive labor-management relations.
FSIP Puts Customers First
The Federal Service Impasses Panel has recently implemented a series of changes in the way it does business. The changes are in response to a customer survey that was distributed to several hundred parties who filed cases with the Panel over the last two years, asking them for their views on improving the Panel's services.
In announcing the changes, Panel Chair Betty Bolden confirmed the Panel's commitment to putting its customers first: "The Panel's chief priorities are providing high-quality and timely impasse resolution services to federal agencies and unions. This is particularly important during this time of great transition in the federal government. The steps we're announcing today to improve the way the Panel does business will go a long way toward achieving these goals."
The steps taken by the Panel include:
- proposing revisions to Panel regulations that are aimed at simplifying filing procedures and speeding up response times;
- developing a new expedited arbitration procedure;
- increasing the use of face-to-face meetings to resolve cases whenever possible;
- providing more and clearer information to the parties from the outset about the Panel's procedures;
- clarifying for the parties the reasons for declining jurisdiction;
- expanding training and education activities; and
- ensuring broader access to the Panel's request for assistance form.
For more information or to receive copies of the Panel's customer survey report or request for assistance form, call (202) 482-6670.
General Counsel Issues Customer Information Packet About New Representation Regulations
As part of its continuing efforts to provide quality customer service, the FLRA's Office of the General Counsel recently issued an information packet about the FLRA's revamped representation regulations and the representation process in general. The FLRA's new representation regulations went into effect on March 15, 1996.
In addition to including the new representation petition form, the new regulations, and a listing of the FLRA's Regional Offices, the packet also includes information discussing the representation process in an easy-to-read question and answer format. After addressing the most significant changes to the representation regulations, the discussion goes on to cover a multitude of topics, including the "who, what, where, how and why" of: filing and processing a petition; party and notification issues; intervention, cross petition and challenges; and hearings, decisions, elections and results.
See the General Counsel's Case Handling Advice to Regional Directors column in this issue of the Bulletin for more information about the new regulations.
ULP Pilot Yields 80% Settlement Rate
In April, the FLRA announced that over 80% of the unfair labor practice cases submitted by agencies and unions to a pilot settlement project in the Office of Administrative Law Judges were voluntarily settled before trial. As reported in past issues, the project gives parties a chance to resolve unfair labor practice complaints by jointly agreeing to participate in settlement conference negotiations before trial. Over 115 cases have been part of the project since it was announced last April.
"The FLRA is committed to reducing the costs of conflict in the federal workplace," said FLRA Chair Phyllis Segal. "We believe one of the best ways to do this is to help parties craft their own solutions to their problems whenever possible, instead of adjudicating the legal claim into which they have squeezed their problem. The high settlement rate of cases in the ULP Pilot Settlement Project is an indication that this approach is working."
FSIP Launches New Expedited Arbitration Procedure
The Federal Service Impasses Panel has launched a new expedited impasse resolution service where, in selected cases, Panel representatives who have been designated as arbitrators will issue awards within 48 hours after the hearing closes.
The criteria the Panel will consider when selecting cases for the new expedited arbitration procedure include:
- the nature of the issue(s) presented, including the complexity, the impact on the workplace, and the size of the bargaining unit;
- the history of the parties' relationship;
- the length of time the parties spent bargaining on the issue(s);
- the number of issues in dispute;
- the parties' preferences;
- whether a quick resolution of the dispute is a crucial factor in the circumstances of the case;
- whether the record supports the conclusion that voluntary efforts to reach agreement truly have been exhausted; and
- the availability of Panel resources at the time the impasse is presented for resolution.
The new procedure is part of a series of initiatives the Panel has recently introduced to strengthen customer service to meet the changing needs of federal agencies and unions.
28% Drop in Unfair Labor Practice Charges Filed with the Office of the General Counsel
The FLRA's Office of the General Counsel recently announced that the number of unfair labor practice charges filed with the office dropped 28% over the last two fiscal years.
"The Office of the General Counsel has been targeting historically high unfair labor practice filers for specialized intervention services that emphasize alternative approaches to resolving conflict," said General Counsel Joseph Swerdzewski. "It looks like these efforts are beginning to pay off. Unions and agencies are working together to resolve problems themselves before they turn to costly, time-consuming litigation."
Swerdzewski emphasized that the pay-off was more that just cost-savings related to reduced litigation, but also through enhanced customer service. "Encouraging parties to work together, instead of against each other, not only reduces litigation and its attendant costs, it allows unions and agencies to focus their efforts on working together to provide quality customer service."
FLRA Considers Regulation Changes
In late Spring, the FLRA invited customer input on a series of proposed procedural changes aimed at providing easier access to FLRA services and making its regulations more user friendly. Two Federal Register Notices, which were published in the June 6th Federal Register, set a July 8, 1996 deadline to comment on:
The FSIP's proposed revamped regulations, which cover such issues as the:
- use of fax filing and private delivery services;
- authority of private arbitrators to address duty-to-bargain questions;
- range of options available to FSIP to resolve an impasse;
- prompt approval of joint requests for binding arbitration;
- requirements for terminating or establishing flexible and compressed work schedules; and
- availability of subpoenas in FSIP proceedings.
The Authority and the Office of the General Counsel's possible regulation changes, covering:
- fax filings and service of documents on the parties and with the Authority, the Office of Administrative Law Judges, the General Counsel, and the Regional Directors; and
- the use of private delivery services.
Look for more information about any regulation changes in future issues of the Bulletin.
FLRA Appoints New Regional Director
Gerald Cole was appointed Regional Director of the FLRA's San Francisco Region, responsible for overseeing the labor-management relations in California, Hawaii, Oregon, Washington and the Far East. Cole has extensive experience in federal and private sector labor law. He began his career with the National Labor Relations Board and quickly rose to the position of Supervisory Attorney. In 1979, he became Regional Attorney of the FLRA's former Los Angeles Region and most recently was Regional Attorney in the FLRA's San Francisco Region. He's worked with unions and agencies throughout the region, litigating unfair labor practices, resolving representation disputes, facilitating partnerships and providing training in interest based bargaining.
WHAT'S GOING ON AT CADR?
Last time you heard about the FLRA's Collaboration and Alternative Dispute Resolution Program -- CADR -- we were just launching it and interviewing its new Director, Thelma Colwell (Quarterly Summary, Vol. 5, No. 1). It's been a few months now and CADR's hit the ground running. Here's an update on some recent CADR activities:
- At the referral of the Federal Service Impasses Panel and after agreement by the parties, CADR provided intervention assistance in a pending impasse bargaining dispute over renegotiation of a master labor agreement. Several key issues, which had agreement-wide impact, were resolved with CADR's assistance. The Panel will consider the unresolved issues and take whatever action is necessary, including issuing a binding decision. The parties' willingness to try a different approach to dispute resolution, commitment to the interest based bargaining process, and tenacity in finding resolution were critical to the success of this alternative dispute resolution effort.
- CADR has developed a program for using ADR to resolve selected negotiability, arbitration and unfair labor practice cases pending before the Authority. Intervention services were conducted with parties in Kentucky, Georgia and Washington, D.C.
- CADR has conducted a series of briefings with FLRA customers in the Washington, D.C. area and around the country on the types of services the program offers. A briefing was recently conducted for the Dallas/Fort Worth Federal Executive Board, ADR Committee in Texas and another is scheduled for the Bureau of Engraving and Printing, Personnel Retreat and Conference in Maryland.
These are just a sampling of CADR's activities dedicated to reducing the costs of conflict in the federal service. For more information about CADR, call (202) 482-6503.
Unfair Labor Practice Cases
U.S. Dept. Of Justice Immigration and Naturalization Service and American Federation of Government Employees, 51 FLRA 914. After the agency was found to be in violation of the Statute for denying an award to a unit employee based on the employee's protected activity, the General Counsel excepted only to the wording of the Administrative Law Judge's (ALJ) recommended notice. The Authority found that the purpose of the notice would be enhanced by explicitly stating that the agency violated the Statute, reasoning that the change would better inform employees of their protected rights. Accordingly, the Authority modified the ALJ's recommended notice and stated that such modified wording would be a part of all future ULP notices.
Federal Aviation Administration Northwest Mountain Region, Renton, Washington and National Air Traffic Controllers Association, 51 FLRA 986. This case concerned an employee's requested reimbursement for travel and per diem expenses incurred while serving as a witness for the General Counsel in a ULP hearing. The Authority held that the agency's refusal to reimburse the employee did not violate section 7131(c) of the Statute, which authorizes only "official time", not travel and per diem, or section 7132(c), which provides for the payment of fee and mileage allowances. In so holding, the Authority noted that a similar authorization for official time in section 7131(a) has been interpreted and applied by the United States Supreme Court to exclude the payment of travel and per diem expenses.
Social Security Administration, Dallas Region, Dallas, Texas and American Federation of Government Employees, AFL-CIO, Local 1336,51 FLRA 1219. The General Counsel alleged that the agency violated sections 7116(a)(1), (5) and (8) of the Statute by refusing to provide the union with "memory joggers" to aid in the preparation of an EEO complaint. The ALJ held that the agency did not violate the Statute by refusing the union access to the memory joggers. The Authority agreed, but also held that the agency had violated the Statute in failing to disclose the nonexistence of the documents. In addition, the Authority addressed the fact that the agency had destroyed the memory joggers after the evidence request. Because the agency had not been afforded an opportunity to litigate the issue, the Authority held that this conduct did not violate the Statute. However, a majority of the Authority stated that in future cases, where the issue was properly litigated, destruction of requested information will be found to constitute an independent violation of the Statute.
Department of the Army, III Corps and Fort Hood, Fort Hood Texas and NFFE and AFGE, Local 1920, AFL-CIO, 51 FLRA 934. The Authority affirmed a Regional Director's decision to bar the union's election petition filed the same day a collective bargaining agreement between the agency and another union was executed. The Authority based its decision on the language in section 7111(f)(3) of the Statute, which precludes exclusive recognition of a labor organization "if there is then in effect a lawful written collective bargaining agreement between the agency and an exclusive representative." It was noted that although Authority precedent did not address the question of whether a contract bars an election petition filed on the same day the contract is executed, the decision is consistent with private sector precedent which bars an election petition in such circumstances.
National Association of Agriculture Employees and U.S. Department of Agriculture Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA 843. This case, which was before the Authority on remand from the U.S. Court of Appeals for the D.C. Circuit, concerned the negotiability of Sunday overtime hours for Plant Protection and Quarantine (PPQ) officers. See Nat'l Assoc. Of Agriculture Employees v. FLRA, No. 94-1033 (D.C. Cir. 1994). The union's proposal sought to require the agency to either: comply with laws and regulations when canceling a Sunday overtime shift before it is scheduled due to lack of inspection work or assign PPQ officers non-inspection work for the balance of the Sunday overtime shift. The Authority found the proposal outside the duty to bargain under section 7117 of the Statute. The Authority further held that the proposal was outside of the duty to bargain because it affected management's right to assign work to employees and did not constitute an appropriate arrangement under section 7106(b)(3).
AFGE, Federal Prison Council 33 and U.S. Department of Justice, Bureau of Prisons, 51 FLRA 1112. This case concerned the negotiability of five proposals submitted during negotiations over revision of an agency program statement providing instructions for investigating employee misconduct. The Authority held that the first proposal calling for investigators to read a form to certain employees during the interview was outside the duty to bargain because it affected the exercise of management's right to determine internal security practices. The Authority held that the remaining four proposals, two of which concerned employee discussions with his or her representative and one of which addressed affidavit statements about polygraph tests, were within the duty to bargain. In so holding, the Authority noted that "the expenditure of resources to adjudicate [this dispute] could have been avoided had the parties discussed their interests and differences, rather than litigated the question of whether the proposals, as worded, [were] within the duty to bargain."
AFGE, Local 1941 and U.S. Department of the Army, U.S. Army Chemical and Military Police Centers and Fort McClellan, Fort McClellan, Alabama, 51 FLRA 998. The agency excepted to the award granted by the arbitrator concerning the nonselection of two employees for promotion. The agency argued that the arbitrator's reliance on an agency regulation to sustain the grievance resulted in an award based on a nonfact. The Authority held that the agency's exceptions failed to establish that the arbitrator's award was deficient under section 7122(a) of the Statute. Noting that the agency did not discuss whether the agency regulation was an "applicable law" within the meaning of section 7106(a)(2) so as to constrain the exercise of a management right, the Authority left the issue for a future case.
Bureau of Engraving and Printing v. FLRA, No. 95-1499 (unpublished) (D.C. Cir. May 23, 1996), reviewing 50 FLRA 677 (1995). In this negotiability case, the D.C. Circuit enforced the Authority's decision and order that the Bureau of Engraving and Printing was obligated to bargain on union proposals regarding wage setting. The case had been remanded to the Authority by the court in a previous review proceeding. 995 F.2d 301. In the underlying decision, the Authority had set forth its analytical approach to determining whether a matter is excluded from the definition of conditions of employment under 5 U.S.C. 7103(a)(14)(C) because it is "specifically provided for by Federal Statute."
The statute, which involved the Prevailing Rate Systems Act, 5 U.S.C. 5349, provides that the wages of Bureau of Engraving and Printing employees are to be established in accordance with prevailing rates and adjusted consistent with the public interest. The Authority determined that under 5 U.S.C. 5349, the Bureau of Engraving and Printing has discretion in establishing wages for its employees, but the agency's discretion is not sole and exclusive. The Authority found that the exercise of that discretion through collective bargaining is not inconsistent with law and the proposals therefore are negotiable.
The court found the Authority's interpretation to be reasonable. In addition, the court noted that the public interest factor, not having been committed by Congress to the sole and exclusive discretion of the agency, is compatible with collective bargaining. The court therefore upheld and enforced the Authority's decision.
ABOUT THIS COLUMN
The Federal Service Impasses Panel is the last step in federal sector collective bargaining -- the substitute for the strike and lockout in the private sector. Many of the negotiation impasses brought to the Panel are successfully settled with Panel assistance. If, however, an impasse is not voluntarily settled, the Panel takes final action which may include directing the parties to another procedure or imposing settlement terms. These typically occur through the issuance of a "Decision and Order" if the impasse was considered by the Panel as a whole, or an "Opinion and Decision", if a Panel Member or staff person was designated to help resolve the dispute. This column highlights both of these final actions.
Renovation of Facility
Social Security Administration, Ontario District Office, Ontario, California and Local 2452, American Federation of Government Employees, AFL-CIO, Case No. 95 FSIP 135 (March 7, 1996), Panel Release No. 384 (Opinion and Decision). This case concerned work space design and layout. When mediation was unsuccessful, a Panel Member issued an arbitration award directing the parties to adopt the agency's proposal, which provided for adjustable workstations, giving employees the flexibility to sit or stand and relieve neck and muscle stress.
Leave; Pay Issues; Cafeteria Benefit Plan and Emergency Suspensions
Department of Defense, Department of Defense Stateside Dependents Schools, Fort Campbell Dependents Schools, Fort Campbell, Kentucky and Fort Campbell Non-Certified Education Association, Federal Education Association, NEA, Case No. 95 FSIP 160 (March 27, 1996), Panel Release No. 385 (Opinion and Decision). The Panel designated a Panel Member to conduct a mediation-arbitration proceeding to resolve an impasse involving a number of issues in an initial collective-bargaining agreement. After some of the issues were resolved through mediation, an arbitration hearing resolved the remaining issues as follows: (1) leave provisions for seasonal employees: the arbitrator issued an award directing the parties to adopt a modified version of the agency's proposal, permitting employees to convert sick leave days for personal hardship situations and increasing the number of administrative leave days; (2) effective date of pay increases: the arbitrator ordered the parties to adopt wording requiring that if an agreement is not reached by the start of the school year there are to be retroactive increases if necessary; (3) higher level pay for educational assistants: the arbitrator ordered the union to withdraw its proposal; (4) cafeteria benefits plan: the arbitrator ordered the parties to adopt wording which set certain time frames for the agency to complete a study of the issue and the union to review the study and, if necessary, reopen their agreement to negotiate over the issue; (5) emergency suspensions: the arbitrator ordered the agency to withdraw its proposal concerning this issue; and (6) pay issue: the arbitrator ordered the parties to adopt a modified version of the union's proposal, allowing bargaining-unit members to receive a certain percentage pay increase and granting a longevity increase to eligible employees for years of service.
Emergency Call Back Roster
Department of the Army, U.S. Army Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland and Local 2424, International Association of Machinists and Aerospace Workers, AFL-CIO, Case No. 95 FSIP 168 (February 27, 1996), Panel Release No. 384 (Decision and Order). This dispute concerned the establishment of a mandatory overtime roster for emergency repairs. After the parties were unable to resolve their dispute during an informal conference with a Panel representative, the Panel ordered the parties to adopt the agency's proposal. The agency's proposal addressed employee selection of roster dates to be on call for emergency repairs during nonduty hours (including how to address ties and substitutions for a particular day) and compensation and overtime issues.
Bargaining Over Permissive Subjects; Establishment of a Peer Recognition Award Program; Official Time
Department of the Army, Army Corps of Engineers, Portland District, Portland, Oregon and Local 7, National Federation of Federal Employees, Case No. 95 FSIP 169 (April 12, 1996), Panel Release No. 386 (Opinion and Decision). After a mediation-arbitration proceeding with a Panel Member resolved a number of the issues related to negotiations over a successor collective bargaining agreement, the Panel Member arbitrated the remaining issues. The arbitrator ordered the union to withdraw wording that would have incorporated into the collective bargaining agreement a requirement that the agency negotiate over permissive subjects "in accord with the spirit and the letter of Executive Order 12871." Instead, the arbitrator ordered the adoption of an agency proposal placing similar wording in a side agreement. The arbitrator further ordered the parties to adopt a modified version of the union's proposal establishing a peer recognition award program, which set durational time frames, requires good faith meetings to set the program up and provides for award amounts. The arbitrator also ordered the parties to adopt the agency's proposal addressing travel and per diem expenses for labor-management meetings and ordered the withdrawal of another official time proposal.
Hours of Work
Department of Veterans Affairs, Palo Alto Health Care System, Palo Alto, California and Local 2110, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 1 (March 20, 1996), Panel Release No. 385 (Decision and Order). After the parties were unable to resolve their dispute over work shifts for police officers during a telephone conference with a Panel representative, the Panel issued a decision. The Panel first clarified that it had jurisdiction over the issue, despite the agency's contention that the issue did not concern 7106(b)(1) matters and, instead, was nonnegotiable under 7106(a) of the Statute. The Panel went on to order the adoption of the agency's proposal, eliminating 12-hour shifts, replacing them with 8-hour shifts, and establishing three work schedules.
Alternative Work Schedule Policy and Priority Consideration for Promotion
Department of the Air Force, Headquarters 66th Support Group, Hanscom Air Force Base, Massachusetts and Local R1-8, National Association of Government Employees, SEIU, AFL-CIO, Case Nos. 96 FSIP 6 and 7 (March 14, 1996), Panel Release No. 384 (Decision and Order). After considering the parties' written submissions and rebuttals in these consolidated cases arising from successor collective bargaining agreement negotiations, the Panel ordered the following: (1) alternative work schedule policy: the Panel ordered the parties to adopt compromise wording which addressed the continuation of the current program. The order also established a pilot program, calling for the parties to jointly review the pilot at its completion to determine whether or not it should be extended and, if necessary, to submit the matter to the Panel for resolution if they are unable to agree. The order further noted that the program would remain in effect during any impasse proceedings; (2) priority consideration for promotion: after resolving the agency's duty to bargain issue under Authority precedent, the Panel adopted the union's proposal requiring the agency to give bargaining-unit employees first consideration for vacant bargaining-unit positions.
Exclusions to the Negotiated Grievance Procedure; Performance Awards; Probationary Periods
Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and Local R5-160, National Association of Government Employees, Service Employees International Union, AFL-CIO, Case No. 96 FSIP 19 (May 16, 1996), Panel Release No. 387 (Decision and Order). This case concerned a number of issues arising in connection with negotiations over a successor collective bargaining agreement. The vast majority of the issues were resolved during an informal conference with a Panel representative. After considering the entire record, including the Panel representative's recommendations, the Panel issued a decision and order addressing the remaining issues.
The Panel's order called for: compromise wording which excluded certain designated grievances from the negotiated grievance procedure; the current mandatory performance award provision to be continued with an adjustment to the award amounts; withdrawal of two union proposals concerning the payment of annual bonuses and salary reductions of pay-banded employees; and the adoption of the agency's probationary period proposal.
Withdrawal of Grievances Prior to Scheduled Arbitration
Department of the Air Force, Luke Air Force Base, Luke AFB, Arizona and Local 1547, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 38 (April 26, 1996), Panel Release No. 386 (Opinion and Decision). All of the issues arising in connection with this successor collective bargaining agreement concerned the parties' grievance procedure. A Panel representative mediated three of the issues and an arbitration hearing was conducted on the fourth.
The arbitrator directed the agency to withdraw its proposal providing that the withdrawal of a grievance by a party prior to a scheduled arbitration would be considered as satisfactorily resolving the grievance in favor of the other party.
Household Goods-Moving Benefits
Department of Defense, Department of Defense Dependents Schools, Arlington, Virginia and Federal Education Association, NEA, Case No. 96 FSIP 45 (April 10, 1996), Panel Release No. 386 (Opinion and Decision). To resolve an impasse concerning whether retired overseas teachers should be allowed to delay the receipt of household goods-moving benefits until the spouse retires from teaching, the Panel designated a representative to conduct an arbitration hearing. After the hearing, the arbitrator issued an award directing the parties to adopt the union's proposal permitting retiring teachers to be eligible for the final shipment of household goods or final travel back to the United States for both spouses and their dependents, on the condition that the retired spouse had not previously used those benefits.
ABOUT THIS COLUMN
The FLRA's General Counsel, Joseph Swerdzewski, has final authority over the issuance of complaints under the Federal Service Labor-Management Relations Statute. The General Counsel's approach in deciding whether to issue a complaint in a particular set of circumstances influences the direction of the law. For that reason, and in the interest of keeping the parties informed of the policies being pursued by the Office of the General Counsel (OGC), the FLRA's Bulletin highlights selected cases which were considered by the OGC pursuant to requests for case-handling advice from Regional Directors and summarizes guidance issued on novel legal issues. (The interpretations of the Statute relied upon in case-handling advice and guidance represents the OGC's position, and is not an official position of, or interpretation by, the Authority.)
This issue's column focuses on the FLRA's new representation regulations. (See the News to Know in this issue of the Bulletin for more information.)
Processing Representation Petitions Under The New Representation Regulations
New representation regulations went into effect on March 15, 1996, which allow for issues to be defined not only by the results the parties seek, but also by the facts and circumstances that caused the petition to be filed. See 60 Fed. Reg. 67288 (1996). These changes afford the Regions an opportunity to proactively assist the parties in agency reorganizations and to resolve and/or narrow representation issues consistent with the parties' interests and with the requirements of the Statute. The new regulations also encourage all parties affected by issues raised in a representation petition to meet prior to the filing of the petition to discuss their interests.
Another significant change combines the seven types of petitions (previously referred to as RO, DR, RA, CU, AC, UC and DA) into one generic petition, eliminating the risk that a party may check the wrong box. This change provides the parties more flexibility to file a petition by requiring them to state the issues raised by the petition, explain why they are filing the petition and the results they desire. Also, a new substantive rule governs the parties' rights and obligations during the representation petition processing. Now during the petition process period, parties must maintain their existing recognitions, adhere to the terms and conditions of existing contracts and fulfill all of their other representational and bargaining obligations under the Statute.
The reasons for filing a petition remain the same and filing still takes place in one of the seven Regional Offices, but all petitions filed after March 15, 1996 can only be filed using the new Form 21 rev. 1/96. Another change allows the original and two copies to be filed, instead of filing the original and four copies. In addition, the regulations eliminate the previous prefiling requirements for petitions to consolidate existing units. There were no new substantive filing changes concerning elections, certifications and contract bars. However, some of the previous regulatory language underwent modification to track recent Authority decisions.
After a representation petition is filed, an agency still must post a notice for ten days to inform all affected employees that a petition has been filed. However, in an effort to expedite the petition process, a significant change in deadlines for filing intervention requests, cross-petitions, challenges to the validity of the showing of interest and challenges to the status of a labor organization was implemented. Intervention requests may be filed at any time prior to the Regional Director's approval of an election agreement or issuance of a Decision and Order when there has been no hearing. If a hearing is held, intervention requests may be filed prior to the opening of a hearing. The old scheme required filing only within the ten day posting period. An extension may be granted if good cause is shown.
After a petition is filed, full cooperation is expected by all parties, and the Regional Director has the authority to require parties to meet to narrow and resolve the issues raised in the petition. The new rule regulates a petitioner who withdraws a petition seeking an election after a notice of hearing issues or an election agreement is approved (whichever occurs first) and bars them from filing another petition for the same unit or a portion of that unit for a six month period. The old regulations provided for no bar if the withdrawal was received more than three days before the hearing (if there had been no election agreement). Another new bar occurs when an election is not held because an incumbent union disclaims interest in the unit, that incumbent union cannot petition for any of those employees for six months.
New power has also been given to Hearing Officers who conduct prehearing conferences and hearings. The Regional Director usually rules on motions to dismiss and intervene. Now, the Hearing Officers may make recommendations on the record on the issues raised by the petition. Prior to the start of the hearing, Hearing Officers will inform the parties of their authority, if any, to make recommendations to the Regional Director on the record.
The Regional Director makes all final decisions in a representation case, subject to the filing of an application for review with the Authority which must be filed within sixty days of a Decision and Order in accordance with section 2422.30 of the Regulations. There are no changes in granting stays for any action ordered by a Regional Director. The Authority must specifically order any stay of action.
To win, a labor organization still needs to receive the majority of the valid ballots cast. However, any objection to the election must now be received by the Regional Director within five days after the tally of ballots has been served.
The General Counsel has issued an information packet to assist the Regions with the transition to the new regulations, detailing basic matters concerning the processing of representation petitions and the significant changes made by the new representation regulations. For a copy of the packet, call (202) 482-6680, extension 202, or fax your request to (202) 482-6608.
ABOUT THIS COLUMN
In accordance with the OGC's Settlement Policy, various parties have entered into numerous novel settlement agreements resolving pending ULP cases. This policy, issued in conjunction with the Prosecutorial Discretion Policy, provides Regional Directors with the flexibility to develop, with the parties, innovative remedies that maximize the purposes and policies of the Statute, resolve the specific issues and meet the needs of the parties. To encourage parties to jointly resolve disputes consistent with the principles and objectives set forth in the Settlement Policy, selected provisions of recent settlement agreements follow. The parties are not identified in order to maintain confidentiality.
The following settlement agreement was approved by a Regional Director applying the OGC's Settlement Policy over the objection of the charging party because the settlement effectuated the purposes and policies of the Statute:
Supervisor Sends Letter of Apology
In resolution of a ULP charge alleging coercion regarding the filing of an earlier charge, the supervisor sent a letter of apology to the union for questioning employees about the charge. The supervisor stated in the letter to the union president that in the future he would be more sensitive to employee union rights and discuss labor relations questions with appropriate management officials and not bargaining unit employees.
Bilateral Settlement Agreement Resolves Thirteen ULPs
The unfair labor practice cases involved union requests for information pursuant to the Statute. In the settlement agreement, the agency acknowledged that in some cases it did not respond at all and in some other cases it failed to timely respond to union requests for information. The parties agreed upon a point of contact for the submission of information requests and developed a procedure for the union's submission and agency's response to future information requests in an effort to ensure that future requests will be handled in a timely manner.
The settlement agreement includes a model form for the union to submit written requests for information that will include a statement of the union's particularized need for the information and the intended use of the information. The form also requires the union to address any privacy interests in the requested information. The agreement also includes a model form for the agency to use to ensure that a full response is provided.
Agency Agrees to Reconvene Meeting With Employees
Prior to the issuance of a complaint, the parties resolved an unfair labor practice charge regarding a meeting conducted with unit employees without notice to the union. In resolution of the charge, the agency agreed to reconvene the meeting within twenty-one (21) days of receipt of the settlement agreement. The union will be provided advance notice of the meeting.
During this second meeting the topics discussed during the prior meeting that gave rise to the charge will be reviewed. Also, the agency will discuss with employees the requirements of section 7114(a)(2)(A) of the Statute to provide the exclusive representative an opportunity to be represented at any formal discussion between one or more representatives of the agency and one or more employees concerning any grievance or any personnel policy or practice or other general condition of employment.
Parties Enter into Settlement Agreement After Close of Unfair Labor Practice Hearing Before an Administrative Law Judge
The unfair labor practice complaint in this case alleged a violation of section 7114(b)(4) for the agency's failure to provide the union with official time data. After the close of the hearing before the Administrative Law Judge, the parties entered into a settlement agreement that includes the posting of a Notice to All Employees. The agreement provides that the union will be given the data which was used to create a chart of official time usage that had been submitted by the agency in an impasse proceeding. In addition, the agreement provides that the agency will not fail to respond in a timely manner to future information requests or fail to provide information consistent with the requirements of the Statute.
Agency Agrees to Post Notice Regarding Employees' Statutory Rights to Engage in the Solicitation and Distribution of Representational Petitions
After issuance of a complaint and notice of hearing, the parties entered into a settlement agreement regarding management actions in an effort to decertify the existing exclusive representative. The Settlement Agreement and Notice to Employees provides that the agency will not interfere with, restrain or coerce any employee in the exercise of their statutory right to assist in the distribution and circulation of a decertification petition. In addition, the agency agreed that its supervisors and managers will not solicit or encourage employees to decertify the exclusive representative. The agency further agreed to ensure that all supervisors at the facility receive training in labor-management relations.
Bilateral Settlement Agreement in Lieu of Notice Posting
In resolution of two unfair labor charges regarding the issuance of summary performance ratings, the union and the agency entered into a settlement agreement. The charges alleged retaliation for the filing of grievances. The agreement provides that the 1994 ratings for two employees will be raised to Outstanding with a commensurate cash award and retroactive quality step increase.
In addition, the agency agreed to set aside funds for a training course on conflict resolution and/or self- directed teams, for all employees in the affected office. The union will be involved in working with the course instructor to ensure that the course meets pertinent labor/management objectives. The parties agreed that no traditional notice needed to be posted.
Official Time Issue To Be Resolved Using Interest-Based Bargaining
After issuance of a complaint and notice of hearing, the parties entered into a settlement agreement that included a Memorandum of Understanding in lieu of a Notice posting.
The Memorandum provides that the parties will meet within thirty days in an attempt to resolve the official time issue. Prior to meeting, the participants are to be trained in interest-based bargaining principles to use in their negotiations over the processing of official time requests. If the facilitated negotiations are unsuccessful, the parties will consult with higher level management and union representatives in an effort to reach resolution. If the best efforts of the parties fail to resolve the issue, the unfair labor practice charge will be referred back to the Regional Director for appropriate action.
Unilateral Implementation of Sign Out Board Rescinded
The unfair labor practice charge alleged that the agency had implemented a new sign out board without providing the union with notice and an opportunity to bargain. In the spirit of Executive Order 12871 and in the interest of fostering a labor-management relationship built upon mutual respect, the agency agreed to remove the sign out board from the facility within five calendar days of the receipt of the approved settlement agreement. The agency further agreed that future changes will be implemented in accordance with the provisions of the collective bargaining agreement. The union agreed that unit employees will inform their supervisors prior to leaving the work area.
Expedited Negotiations on Dress Code
In a Notice posting to all employees, the agency agreed that it will complete bargaining with the union prior to implementing policies which change conditions of employment. The parties also agreed to an expedited negotiation schedule on an agency dress code. The agency further agreed that it would not enforce those provisions of the dress code at issue until negotiations are completed. The parties agreed that no employee would be adversely affected by a failure to comply with the provisions of the dress code that were not fully negotiated with the union.
Agency Agrees to Abide by Final and Binding Arbitration Decision
After issuance of a complaint and notice of hearing, the parties entered into a settlement agreement which included the posting of a Notice to All Employees. The agency agreed to identify all employees entitled to back pay in accordance with an arbitration decision no later than forty-five days following approval of the settlement agreement by the Regional Director. The agency further agreed that the required payment actions, including the release of c