The Federal Labor Relations Authority held a town hall meeting in Washington, DC on October 21, 2010. While Chairman Pope is not mentioned in the notes, other key FLRA officials both made presentations and answered questions. Below are the notes as I received them. Thanks to the anonymous note taker on behalf of practitioners who read Fedsmith. I’ll have some brief comments at the end.
FLRA Office of General Counsel (GC) Town Hall
Oct 21, 2010
Welcome: Barbara Kraft, New Regional Director, DC
— Dennis Walsh, Deputy GC
– ULP Case Law Outline http://www.flra.gov/webfm_send/323 :
Part of FLRA GC’ initiative to restore information resources
Repost the Joe Swerdzewski-era historical resources
Update and repost materials
Keep materials up-to-date
Access ULP Case Law Outline through FLRA web site:
Go to OGC web page
Scroll to list of resources at bottom of page
Listed under “Case Law Outline”
Limited, at present, to ULP cases
Not intended to be fully comprehensive, addresses most common issues
Intended as research tool, not primary authority
Don’t cite the outline
Read the cases
Table of Contents hyperlinked to the body of the outline
Organized by topic, following the template of the statute
Hypertext-linked to the statute, regulations, and cases
Will be updated, as needed
Richard Zorn, Assistant GC for Appeals
Case Handling Manual http://www.flra.gov/OGC_ULP_Manual_2010
Manual through FLRA website:
Go to OGC web page
Scroll to list of resources at bottom of page
Listed under “Manuals”
Designed as “soup-to-nuts” reference
5 parts, by function
Hypertext-linked to statutes, regulations, and cases
Will be updated, as needed
Please email [firstname.lastname@example.org] with any errors/problems or suggestions.
James Abbott, Chief Counsel to Member Thomas Beck
to Arbitration http://www.flra.gov/webfm_send/345 :
- Go to Arbitration in Case Types, then select Guide to Arbitration
- Collaborative effort, aimed at commonly-encountered problems
- Highlights procedural changes:
- Calculating 30-day filing limit [begins day following service]
- Filing requirements
- Service by E-mail, if permitted by CBA
- If served by more than one method, earliest controls
- Table of contents if submission exceeds 10 pages
- Expedited, abbreviated decision
- Available if requested by the excepting party
- Other party may oppose or support
- Authority may order on its own motion
- Need to cite, but not supply readily accessible document
decisions, statutes, regulations contained in CFR
- Optional use
- Good checklist, to assure compliance w/rules
- Page 17 of the Guide has links to the forms
Roundtable discussion — Participants: Mary
Jacksteit, Chairman, FSIP, Thomas Beck, Member FLRA, and Julia Adkins Clark,
FLRA General Counsel.
When confirmed 2 years ago, noted 3 primary problems:
Underfunding, (2) Understaffing, (3) Big backlog
14.5% increase in funding
19% increase in staff [91% at member component]
46% reduction in backlog
270% increase in productivity [cases decided]:
– FY09-215, FY10-222
- FSIP is small agency with simple procedures and lots of discretion
- 7 part-time members add up to 1 full-time equivalent
- 2 years ago — 73-case backlog, no panel for 7 months
- Decided to leverage member/staff experience, depart from requirement of slow, written submission
- Use informal conferences [mediation/arbitration]
- Delegate authority to individual members/staff to med/arb
- Backlog eliminated by last April, only working current cases 
63 resolutions [plus many partial resolutions] this year
- ADR Guide is on the web
- Simple procedures, no secrets, geared to assisting parties to reach agreement
- We’d rather not order contract language, we will, if forced
- Goal is to facilitate, not end the collective bargaining process
- Mediation/Arbitration is final – no appeal to full panel
- But we’ll give you reality checks
- Do you really want to me to consider
changing AWS b/c commander dislikes it?
- If not resolved w/ADR, look first at jurisdiction – Is there an impasse?
- May send to a paid arbitrator, ask him/her for recommendations.
- May send you back to bargain, if we don’t think parties bargained
- May send you to FMCS
- If we have to decide, we’ll ask for final, best offers [not originals]
- If parties show complete inability, we may order offer selection
- Not often, not without plenty of notice it’s coming
- Parties expected to take responsibility
- keep trying, keep bargaining
OGC is independent investigatory/prosecutorial agency w/7 regional offices
At confirmation, I promised:
- Eliminate backlog in 180 days
- Restore information resources within 18-24 months
- Restore processing timelines in first term
Past 2-year focus:
- Cleared backlog-342 ULP, 800 representation cases in 18 months
- Restored information resources, historical stuff, as best we could
- New/updated web-based manuals, summaries, guides
- Intended as neutral, state of the law
- Iterative process
- Help us if you note error or have a suggestion
- 5,600 trained
- Basic/Advanced training on the Statute
- Representation case training
- EO 13522 pairs training, partnering with FMCS
- Training of (b)(1) bargaining pilot participants
- Time target for ULP/representation cases = 120 days
- On-target 49% in ULPs, 65% with rep cases
- Problems restoring old target of 90 days
agents then, 43 now, 100 cases per agent
- 23% increase in filings
- Possible 40,000 new TSA employees
- Budget cuts and layoffs increase cases
- Our goal is still to return to the 90-day target
Question and Answer:
— Thanks for your efforts. Signals a sea change in labor
relations. (As you’ll read, this
was the first of four or five union representatives that humbly thanked the
Authority representatives for all that they are doing for the labor relations
program. I’m sure management felt
the same way but chose not to publicly share such heartfelt gratitude.)
— What more can the Authority do about its
Member Beck: Prioritization is always a balancing act between interests represented
in old and new cases. It’s based
on resources. It is what it
is. We’re still committed to the
complete elimination of the backlog in 18-24 months. Some good news is that our oldest cases are only 3, rather
than 5 years old. We can’t always
take the oldest case first, but that’s out general practice. We consider any case older than 180
days to be ‘overage.” It could be
worse – another agency before whom I practiced recently decided as case filed
— We have a 32-year old statute, and the workplace
has changed since then. Any
thought of reforming the Statute?
Member Back: Nothing serious.
— Regarding arbitrations, what kinds of cases
might be overturned by the Authority under the new standards?
Member Beck: There will always be new views with new members. It would be inappropriate to comment on
cases, but I personally believe we’ve done most of the modification of our
consideration procedures that we’re going to do.
CPSC: — What training is needed for (b)(1)
Ms. Clark: The pilots are intended to produce laboratory conditions in these new
procedures, so the consequences can be assessed and measured. Training of participants is part of
that, and is required for pilot participants. We train in the process, in interest-based bargaining, and
existing procedures, since they will be applied to the pilots.
Senate Counsel: — Regarding pre-decisional involvement, is enough
occurring? What is FLRA doing to
Ms. Clark: Training is all we can do. It can’t be forced, but must be welcomed by two people of good
will. Our 2-day training gives
labor/management pairs a framework for making the pilot successful.
prior years, the Authority was often reversed. Do you keep track of your record; do you know your
Member Beck: I come from a background with the NLRB, which was often reversed. We attempt to apply the law to our
cases thoughtfully and in a way that is faithful to its intent. Each time it stings, and we attempt to
learn from them and do better.
IFPT: — Thanks for the change in atmosphere at the Authority.
— Is there a plan to return to
77 investigators in OGC?
Ms. Clark: We’re working on it. The
new budget, if approved, gives us 4 more. We developed a methodology for objectively justifying the needs we have,
and analysis is ongoing to determine an optimal case/agent ratio.
AFGE: — Thanks for righting the ship.
We’re hopeful bargaining rights will be extended to TSC workers. Are there other things that can be done
to deal with this influx of potential unit members and associated increase in
Ms. Clark: We’ve dealt with large elections before. We’re using the lessons learned from them to prepare for the
future, including other sizeable elections, besides a possible TSC election. One of the solutions is electronic
voting. It’s faster, less
expensive, and produces greater participation.
AFGE: — Thanks for your efforts. I feel like the only non-lawyer here,
but I appreciate it.
There is no training to inform employees. I represent 1,000 employees in 3 bargaining units, and crossing those
lines to inform employees is killing me. My boss says I’m under investigation for time card fraud for all the
work I’m doing.
Ms. Clark: We are in discussions to make available more widely accessible
resources, such as computer-based training. We recognize that people on both sides have full-time jobs
and only limited availability for labor relations training.
IBET: — You’re doing a great job.
Is there any thought to taking this show on the road?
Ms. Clark: We’re already doing it. The
first of these town hall meetings was held in Chicago. Now this one; and we have plans for
others, consistent with our budget.
dangerous to be right when the government is wrong.” – Voltaire
Whenever I read current FLRA decisions or its general comments, I can’t
help but think that not only civility, as many claim, but neutrality as well is
part of a bygone era. Whether it’s
the FLRA’s ongoing decisions to make every management right an appropriate
arrangement or the recent arbitration appeal cases in which it abrogates its
own obligations to the law, this FLRA has far surpassed the Bush FLRA in its
unabashed political agenda.
Look above at the union comments. If either party in labor relations loves the neutral decision maker, watch
out! It’s a sure sign that
neutrality is no longer an operating principle of that decision maker. I guess I have nobody but myself to
blame for holding an expectation in 2009 that the appointment of people to FLRA
who had substantial experience might bring things back to a middle ground. Instead, they have become entranced
by the political world of DC like, many have said, a moth to a flame. What FLRA is doing will not make
government better only add another layer of obligation to Agencies having great
trouble succeeding as it is.
You only need to read the above quote ascribed to someone from AFGE:
“There is no training to inform employees. I represent 1,000 employees in 3 bargaining units, and
crossing those lines to inform employees is killing me. My boss says I’m under investigation
for time card fraud for all the work I’m doing.”
Early in the history of the law, it was determined that an
employee/union rep could not get official time to represent employees in a unit
of which he/she was not a member. It appears no one sought to set this person straight. Of course not, it wouldn’t be
politically correct, or maybe FLRA
figures they’ll just make what the person is doing an appropriate arrangement
and all will be well.
As always, any opinion, real or perceived, in the above comments is mine
and mine alone.