In a recent article, we took a look at the General Counsel’s new policy on Unfair Labor Practice settlements. If you read the website for the Federal Labor Relations Authority, this brings to three the number of different offices involved in ULP resolutions. A fair question might be whether there is enough for everyone on 14th Street (FLRA headquarters office) to do.
Who Is Involved
The guidance appears to involve the General Counsel staff only in PDPISD’s. (That acronym refers to “post-determination, pre–issuance settlement discussions.” ) These occur between when someone decides a complaint should be issued and when it actually gets issued. At least that is what the new guidance says.
So who else has a piece of the action? According to the website, there’s an outfit called CADR that offers to help resolve ULPs. The acronym stands for Collaboration and Alternative Dispute Resolution program (apparently without the P). I guess CADRP would not look or sound so good. In any case, these folks are offering to help settle cases. My only question is when. Back to that later.
The other part of the FLRA offering to settle ULP cases are the Administrative Law Judges. According to their blurb on the website, its called the Settlement Judge Program (ADR). No other acronym is provided. (Whew, thanks!) This program “may be initiated by any of the parties to a pending ULP case in which a complaint has been issued by the General Counsel and a hearing date before a Judge has been set.”
The promo goes on to say that “If all parties to the proceeding agree, a conference at a mutually agreeable date and time is set by the Settlement Judge — usually prior to the pre-hearing conference — and the parties discuss possible resolutions of the dispute without resort to litigation. The process is confidential in that nothing discussed at the conference is disclosed to the Judge designated to preside at the hearing if settlement efforts are unsuccessful.”
So Who Are All of These People and What are the Apparent Differences?
The General Counsel Staff includes Regional Directors, Regional Attorneys, Field Agents and Field Attorneys who investigate ULP allegations and then “prosecute” (GC’s term) at hearings before Administrative Law Judges. You will recall from the previous article that it appears from the guidance they are now limited to settling cases between when someone decides a complaint should be issued and when it actually gets issued.
The Collaboration and Alternative Dispute Resolution program staff is not so clearly identified in terms of position titles. According to their blurb on the website, “Greater emphasis is now placed on the use of alternative dispute resolution (ADR) and consensus decision-making in resolving workplace disputes and in improving labor-management relationships in the Federal sector. The FLRA’s Collaboration and Alternative Dispute Resolution (CADR) program enhances these efforts by integrating ADR into all of the case processes used by the various FLRA components. The CADR Office (CADRO) provides overall coordination and support to the FLRA components in implementing the CADR program.”
Now I am sure you know exactly how they fit into the ULP process. Unlike the GC staff and the judges, it appears they can appear at any stage of a ULP and work their magic.
About Settlement Judges, we know one thing. They are not the same judge that hears the case. Additionally, they are charged to keep the discussions confidential from the judge who tries the case.
Putting it all Together
Let’s see if we can make sense of all this. CADR can do it anytime. GC staff can only do it during PDPISD’s. Settlement Judges can do it pre-hearing but then can’t do the hearing. So, since the GC staff would presumably represent the GC in settlement discussions undertaken by the Settlement Judge, and the CADR folks show up if requested by one of the parties, how do you appraise the performance of each in the process? Seriously, the offices at 14th street might empty if all were involved.
What I find most interesting is that the Settlement Judge who is an administrative law judge and entitled to be called “your honor” appears less trusted than the GC staff members in the process since they can investigate, prosecute and engage in settlement of the same case without any apparent conflict or at least one perceived by the FLRA in its regulations.
Having appeared before my share of FLRA ALJs, I’d rather have them both engage in settlement and hear the case than have some field attorneys run the case from beginning to end. Perhaps the GC might consider handing a case off after investigation or at settlement or at hearing. That might convince agency practitioners that there were no axes to grind, no preconceived opinions nor conflicted investigators or prosecutors to deal with. Of course, if the GC did that the agencies would be left only with the union to complain about.
You’ve heard my take, what’s yours?
The responsibility for the opinions expressed herein is mine and mine alone.