In a recent case decision, the Federal Labor Relations Authority (FLRA) found that a guidance memo provided to regional directors was not “law” and therefore actions that were not in compliance with the guidance memo did not provide a basis to overturn an arbitrator’s opinion.
This is certainly not news (or should not be) to labor relations practitioners. (It certainly would have been news to the last administration.) What is of substantial interest is that most of FLRA’s website is “under construction” following the tanking on October 5, 2006 of all of the Clinton era’s General Counsel policy and guidance memorandda. Also gone are all of the GC’s manuals which spelled out how representation cases and unfair labor practices would be handled.
Regarding policies and “guidances” (is that a word?), the website says:
“The General Counsel has announced that effective immediately, the Policies and Guidances previously issued by the Office of General Counsel (OGC) set forth below, as well as any other Policies and Guidances issued prior to October 31, 2005 that are not specified below, are hereby rescinded. Should matters arise that need clarification or specific guidance from the General Counsel, new Policies and Guidances will be issued.”
Regarding the manuals, these disappeared from the website leaving a cryptic but cute “under construction” logo replacing them. I say cryptic because the figure is pictured in motion shoveling something continuously. I would bet my Federal retirement check that most agency labor relations staff could easily identify the matter being shoveled.
Assuming, as one might, that the official utterances of a Federal agency have an intended meaning, I think the current General Counsel (GC) is making a statement. Anyone involved in or affected by the federal labor relations may want to sit up and pay attention.
In the statement quoted above, the GC appears to be saying that her office is shedding any and all old ways of doing business. Additionally, she says clearly that any policy or guidance will be in the nature of “clarification or specific guidance’. Maybe I am reading too much into this but it appears the era of general guidance on issues is over, at least for the time being.
Is this good or bad news for agencies? Agencies are the primary target of unfair labor practice charges and the exclusive target of representational petitions. Under previous GCs, two basic styles were evident. The first of these left decisions on what cases to press with the field staff, the second involved top down policies from the appointed GC.
In the Clinton era, there was no difference between the two. In the past, "expanding the understanding of the statute" was often a euphemism for expanding union rights. The GC and his staff pushed cases that supported the direction in which they wanted to drive unfair labor practice decisions. I have been told by GC employees that they saw their role as leveling the playing field for the unions. Another of their goals was to "advance" the Federal program into parity with the private sector. Frankly, I believe that came from early recruiting from a National Labor Relations Board that routinely looked down its nose at Federal sector labor relations.
So what’s the bottom line on the current GC and her vision of labor relations? It appears we will not have an activist, agenda driven GC. It may also be, unlike the Clinton era GC, that General Counsel Colleen Duffy Kiko does not arrogate to herself the responsibility to educate agencies on the “proper” way to conduct labor relations. It may even be that there is no “secret litigation strategy” as existed under her Democrat predecessor, now a consultant, to prosecute agencies in line with an expansionist view of the statute. If true, that would be the best news to come out of FLRA since the current Authority tanked the “Abrogation Test”.
Stay tuned. The test will be whether Ms. Kiko can wrestle change from a staff used to another way of looking at labor relations. In light of recent election results, that staff may decide to hunker down and await her departure. Time will tell.
The opinions expressed in this article are mine alone. Let’s hear yours.