Administering the Statute - "FLRA 20 Years 1979 - 1999"
"The Federal Labor Relations Authority exercises leadership under the Federal Service Labor-Management Relations Statute to promote stable, constructive labor relations that contribute to a more effective Government." FLRA Mission Statement (adopted 1995)
The FLRA performs many distinct functions in administering the Statute. These functions are, for the most part, carried out by the principal independent components that together form the FLRA: the Authority, the Office of the General Counsel, and the Federal Service Impasses Panel. The functions include: the Authority's adjudication of disputes concerning negotiability of collective bargaining proposals, unfair labor practice allegations and representation petitions, and exceptions to grievance arbitration awards; the Office of the General Counsel's investigation and prosecution of unfair labor practice complaints and its delegated authority to process representation petitions; the Federal Service Impasses Panel's resolution of bargaining impasses arising from negotiations over conditions of employment; and the delivery of collaborative and alternative dispute resolution services by all components. As the FLRA enters its 21st year of operations, the focus in carrying out these functions is on promoting the practice of constructive labor relations.
The Statute defines the universe of organizations that most directly rely on the FLRA: the Federal agencies that employ workers eligible to be represented by unions and the unions that have been recognized as the exclusive representatives of these employees. The individuals who represent these organizations, and Federal employees accorded rights by the Statute, comprise the individual "customers" of the FLRA.
Agency employers subject to the Statute include the Executive Branch cabinet-level agencies, the Executive Office of the President, independent agencies such as the National Labor Relations Board and the Federal Deposit Insurance Corporation, and two Legislative Branch agencies, the Library of Congress and the Government Printing Office. Nearly 1.1 million non-postal Federal employees world-wide are exclusively represented in approximately 2,200 bargaining units. More than 90 unions serve as the exclusive representatives of these units; the unions that represent the largest number of employees are the American Federation of Government Employees, the National Treasury Employees Union, the National Federation of Federal Employees and the National Association of Government Employees. During the past 20 years, although the size of the Federal workforce has diminished, the percentage of Federal employees who are unionized has remained essentially stable -- currently at 59 percent.
When operations commenced in January 1979, each of the FLRA components was immediately faced with an inventory of cases that had been filed before the effective date of the Statute. The Authority began its first day of work with an inventory of 119 cases that were carried over from the Executive Order program; the regional offices faced 531 pending unfair labor practice charges and 247 representation petitions that had been transferred from the Department of Labor; and 27 cases were pending before the Panel. Not surprisingly, new case filings immediately began pouring in. By the end of the first fiscal year -- only 9 months after the creation of the Agency -- more than 3,000 new cases had been filed.
FLRA's first Presidentially-appointed leadership -- the Chair and two Members of the Authority, and the General Counsel -- were confirmed in July 1979. The regulations to govern the new Statutory proceedings -- the processing of representation petitions, unfair labor practice charges and complaints, negotiability appeals, exceptions to arbitration awards and the resolution of negotiation impasses -- were promulgated in January 1980. As discussed below, these regulations remained substantially unchanged for 15 years.
While tackling its start-up challenges, the FLRA also immediately began addressing its program responsibilities. Within months, the Authority issued its first policy statement, concerning the revocation of written dues assignment. By mid-summer, the Office of the General Counsel began issuing unfair labor practice complaints for hearing before the Authority's newly created Office of Administrative Law Judges (ALJs), and the Authority was examining complex issues such as the negotiability of performance standards. By the end of fiscal year 1980, the Federal courts of appeals had been asked to review 18 Authority decisions.
Except for a surge in cases filed in 1981, and a few years when filings remained level, overall case filings rose fairly steadily until 1992. Since the vast majority of these cases are unfair labor practice charges filed with regional offices, this trend largely reflected a steady increase in unfair labor practice charges. Beginning in 1992, however, the number of cases began to decline: from 1992 through 1998, unfair labor practice charges filed with the regional offices declined by 35 percent, with approximately 5700 charges filed in 1998. Throughout the past 20 years, only 3 to 5 percent of unfair labor practice charges have ended up as appeals to the Authority; the remainder are dismissed, withdrawn or settled prior to hearing, or are resolved by the ALJs without exceptions to the Authority. Thus, the vast majority of unfair labor practice charges are closed without a final precedential Authority decision.
The number of representation petitions filed with the regional offices has ranged from a high of 704 in 1979 to a low of 292 in 1987. Since 1995, the number has remained relatively steady at an average of 460 per year.
All disputed representation petitions were submitted to the Authority until 1983, when the Authority delegated decision-making authority in this area to the Regional Directors, who by that time had a considerable body of precedent to follow. After this, there was a significant decline in the number and percentage of disputed representation cases filed with the Authority, and the vast majority (over 95%) are now fully resolved at the regional office level. In 1979, representation cases comprised nearly one-third of the cases filed with the Authority. Since 1984, following the delegation to the Regional Directors, representation cases have comprised no more than 8 percent of Authority case filings.
With respect to other types of cases filed with the Authority, the mix also has changed over time. For example, arbitration cases constituted 17 percent of the cases filed during the first fiscal year. By 1990, arbitration cases had increased to 42 percent of the Authority's case filings and, in 1998, rose to 47 percent. Negotiability case filings have ranged from a high of 40 percent in 1992 to a low of 13 percent in 1994. This category of cases has remained steady at approximately 25 percent of the Authority's case filings since 1995.
Impasse disputes filed with the Panel reached a peak of 293 in 1991, but declined steadily through 1997 to a low of 148. Filings rose again in 1998 to 175. Since 1993, when changes in case law limited the circumstances requiring impact-and-implementation bargaining, multi-issue end-of-term impasses have constituted an ever-increasing percentage of the Panel's caseload.
Beginning in the first years of its existence, the FLRA in general, and the Authority in particular, developed a reputation for moving too slowly in resolving disputes. Concerns about the timeliness of decisions continue to the present, as indicated in a customer survey conducted in 1997. Recent actions to expedite decision-making have included modifications of internal work processes, regulatory reform initiatives and strategic issuance goals. Changing the perception and reality of slow decision-making remains a challenge for the future.
Early Years: Statutory Enforcement Through Litigation -- the NLRB Model
During the first years of the FLRA's operation, its administration of the Statute was patterned after the National Labor Relations Board (NLRB). This followed the statutory framework that provides for a quasi-judicial body (the Authority) and a public prosecutor with investigatory and prosecutorial authority (the General Counsel), which is similar to the National Labor Relations Act governing labor-management relations in the private sector.
Under this model, the General Counsel's early focus was on the exercise of statutory prosecutorial functions and the use of litigation to elucidate the Statute and develop a body of case law regarding Federal sector labor-management relations. Consistent with this focus, the regulations governing unfair labor practice and representation case processing were, in the main, modeled after the NLRB's regulations. As an example, like the NLRB's regulations, the FLRA's original unfair labor practice regulations did not require exchange of information between the litigants. This was changed in 1997, when the FLRA's unfair labor practice regulations were revised to require prehearing conferences and pretrial exchange of information.
Encouraging Interest-Based Settlement of Disputes
Steps were taken from the outset to encourage voluntary resolution of disputes at the earliest possible time. Section 2423.10 of the Interim Rules and Regulations published in 1979 set forth the policy of the Authority and the General Counsel favoring the settlement of issues at any phase of an unfair labor practice proceeding. Indeed, even in the period during which the Office of the General Counsel placed great emphasis on litigation to elucidate the meaning of the new Statute, priority was placed on the voluntary resolution of individual cases.
Starting in the late 1980's, the FLRA began modifying existing programs and developing new initiatives aimed at fostering improved labor relations by assisting parties to resolve their own difficulties through interest-based approaches. The Office of the General Counsel, which has always encouraged settlement of unfair labor practice charges, devoloped specialized training and workshops for labor and management in methods of interest-based bargaining, collaborative conflict resolution and relationship building. In 1991, the Authority established the Labor-Management Cooperation Program, devoted to encouraging parties to collaboratively resolve their disputes.
Executive Branch initiatives in 1993-94 led to further expansion of these activities. In particular, the National Performance Review (NPR), established in 1993 by President Clinton and led by Vice President Gore, required Federal agencies to undertake reinvention initiatives designed to improve government services with the goal of creating a government that works better and costs less. NPR envisioned moving away from the traditional legalistic and adversarial approach to labor relations. The issuance of President Clinton's Executive Order 12871 in October 1993 spurred the formation of labor-management partnerships, and directed Federal agencies to broaden their bargaining with unions to include subjects set forth in § 7106(b)(1) of the Statute.
In 1994, the Office of the General Counsel began systematically training its entire staff in interest-based bargaining. In 1994 through 1995, the Cornell University School of Industrial and Labor Relations, in partnership with the Office of the General Counsel, provided interest-based bargaining training jointly to FLRA employees and labor and management representatives throughout the country. The two-day training sessions were conducted in every FLRA regional city to build skills in problem solving by exposing the participants to the theory behind interest-based dispute resolution and demonstrating this technique through simulated exercises. Also, the General Counsel empowered the Regional Directors to develop new and innovative approaches to remedies that address and resolve specific underlying disputes, and Dispute Resolution Specialist positions were created in each of the regional offices.
In 1995, a pilot settlement judge program was launched in the Authority's Office of Administrative Law Judges. This program was so successful that it has been made permanent, as part of the revised unfair labor practice regulations which encourage collaborative problem solving in all phases of the processing of unfair labor practice cases.
During this time period, the Panel, which always emphasized voluntary settlement of negotiation impasses, designed new methods to help parties find their own "real world" solutions to problems. Using its broad statutory authority to take whatever action it finds appropriate to resolve impasses, the Panel shifted its emphasis from the formal fact-finding and plenary decision-making of its early years to less formal and more expeditious forms of assistance. For example, in 1996, the Panel introduced expedited arbitration procedures, which guarantee a written decision within two work days after a hearing.
Initiatives also were undertaken during the 1990s to increase the parties' understanding of the Statute -- which is the backdrop against which labor relations are conducted. These initiatives included programs carried out by all components to train union and management representatives on rights and obligations under the Statute. In addition, a series of seminars on arbitration law was conducted for parties and arbitrators. As part of the same effort to increase parties' understanding of how their disputes would be resolved under the Statute, the General Counsel published and widely disseminated policies to guide decisions by the Regional Directors on issuing and litigating unfair labor practice complaints, and manuals on resolving representation petitions. In addition, the Office of the General Counsel has conducted numerous town meetings throughout the country to provide information to help labor representatives and managers understand the Statute.
Mainstreaming Collaborative Dispute Resolution
In 1996, the three FLRA components joined together to establish the Collaboration and Alternative Dispute Resolution (CADR) Program, the first unified Agency-wide program dedicated to assisting parties with resolving disputes on their own terms, at the earliest possible time, through the use of interest-based problem solving. The small CADR office is charged with expanding this assistance and providing support and guidance for the interest-based dispute resolution activities of each FLRA component. The services offered to labor and management by the unified program include: training (on statutory issues, interest-based bargaining, partnership, alternative dispute resolution and relationship building); and dispute resolution assistance in pending unfair labor practice, representation and bargaining impasse cases. Most recently, through the CADR program, the Authority has also begun to help parties resolve their negotiability disputes.
These efforts are guided by the recognition that interest-based problem solving is not merely an "alternative" to resolving disputes through traditional arbitration or litigation -- it is the dispute resolution method best suited to achieving constructive labor relations. In addition to direct delivery of training and dispute resolution assistance, the FLRA's activities to "mainstream" collaborative dispute resolution have led to incorporating principles of interest-based problem solving in procedures governing cases that are filed with the FLRA, as described below.
In April 1999, the FLRA's Mainstreaming Collaborative Dispute Resolution program was chosen as a semifinalist -- one of 98 from a pool of 1,609 applicants -- in the Innovations in American Government Awards Program of the Ford Foundation administered by Harvard University's John F. Kennedy School of Government in partnership with the Council for Excellence in Government. This awards program recognizes Federal, state and local initiatives that are original and effective.
Regulations Revised to Incorporate Principles of CADR
Except for minor, technical modifications, the regulations initially promulgated in January 1980 remained largely unchanged for 15 years, at which time the FLRA began a systematic effort to review how cases are handled and to reinvent its procedures. This initiative has resulted in major regulatory revisions adopted in:
- December 1995 for representation petitions;
- August 1996 for negotiability impasses;
- July 1997 for litigation of unfair labor practice complaints;
- November 1998 for processing of unfair labor practice charges; and
- December 1998 for negotiability appeals.
The revisions to these regulations were accomplished through a process that broadly involved labor and management in identifying ways to improve the regulations, and in shaping the improvements. The revisions were aimed at maximizing the quality of decisions, minimizing the time it takes to issue them, and providing meaningful assistance to parties struggling to create the sound labor-management relations system that Congress contemplated when enacting the Statute in 1978.
Several objectives guided these regulatory changes:
- First, to make FLRA's regulations "user-friendly" -- with concise, plain English as a goal -- in order to reduce delays in resolving disputes due to difficulties in understanding and complying with procedural requirements. For example, under the revised representation regulations, parties are no longer required, as they were previously, to determine which of seven different petitions they should file. Instead, parties now file a single petition, in which they simply are required to describe the problems they are trying to resolve.
- Second, the regulations were revised with the objective to ease procedural burdens on parties -- to reduce the costs of litigation and expedite resolution of claims. For example, the revised negotiability regulations will, in most cases, result in resolution in one proceeding of issues that previously would have required litigation in several forums. As another example, many documents now may be filed with FLRA components by facsimile transmission.
- A third objective in revising the regulations was to narrow and sharpen the legal and factual issues in dispute. With this objective in mind, the regulations governing unfair labor practice cases now require the litigants to exchange information about each side's claims and evidence soon after the complaint is issued, and participate in a prehearing conference with the Judge. In negotiability cases, parties are required to participate in a conference shortly after the petition is filed, to clarify the issues to be resolved, including the meaning of the proposal or provision in dispute. In addition to clarifying the issues on which they disagree, these requirements for direct communication between the parties create opportunities for them to determine whether further litigation is needed, or whether their interests could be better served by agreeing on their own solution to the dispute. Where the litigation proceeds, the clarification of issues expedites the adjudication, and enables more responsive decisions.
- Fourth, the revised regulations are designed to encourage and help parties to find their own solutions to disputes, where possible, rather than rely on the FLRA to impose a decision following costly and time-consuming litigation. The changes that foster direct communication between the parties, described above, serve this objective because understanding what is in dispute is a central step in exploring whether it can be resolved with an interest -based solution. This objective is more directly advanced by other revisions. For example, the ULP investigatory regulations, in furtherance of the CADR program, provide a full range of ADR services to assist the parties in resolving their disputes. The revised ULP litigation regulations make permanent the highly successful settlement judge program. And the revised negotiability regulations expressly incorporate opportunities for CADR assistance in negotiability cases.
As just one example of the effect of the reinvented approaches to the FLRA's work: in 1997, under the revised representation regulations, the Office of the General Counsel assisted an Executive Branch Department and its unions in reorganizing bargaining units after a massive internal reorganization of the Department. The entire process took only four months and saved both the Department and the FLRA the enormous resources that would have gone into determining appropriate units and deciding related bargaining issues through representation and unfair labor practice proceedings.
In 1999, the effectiveness of the FLRA's regulatory reform initiatives was recognized with a Hammer Award to the FLRA team that reinvented the process for litigating unfair labor practice claims. One measure of the success of this initiative is that cases are settling earlier in the process and, thus, at a savings for all involved. For example, in the year before the settlement judge program was introduced, 21 percent of unfair labor practice complaints that were settled prior to the Judge's decision did so at the eleventh hour -- at the hearing location immediately before the hearing began -- after many of the expenses in preparing for and appearing at trial had already been incurred. In fiscal year 1998, the percentage of such last-minute "courthouse steps" set