AFGE Attacks FLRA General Counsel (GC) Over Proposed Changes
By Bob Gilson
Thursday, January 24, 2008
AFGE General Counsel Mark D. Roth claims in this letter to the Executive Director of the Federal Labor Relations Authority, Jill Crumpacker, that the GC's proposed rules violate the law and are a generally bad idea.
The American Federation of Government Employees (AFGE) is claiming that the proposed Regulations which amend Clinton Era Regulations laid out in 1998 violate the Administrative Procedures Act because the General Counsel (GC) of the Federal Labor Relations Authority (FLRA) has put the changes into effect in "secret revisions to internal Manuals and internal instructions." Later in the letter, AFGE's Roth tones down the rhetoric by saying that what FLRA General Counsel Colleen Duffy Kiko is doing violates the "spirit, if not the letter, of the APA."
AFGE's Objections
The bones Roth is picking with the FLRA General Counsel fall into three areas:
- The way the Regs were proposed and the claim that they were a fait accompli (that's French for a done deal) before they were proposed.
- The Regs, according to Roth, put Colleen Kiko's view of her office's "neutrality" above the mission of the FLRA because the proposed Regs curtail the ability of FLRA field operatives to intervene in a labor management dispute until after a complaint is issued.
- The charging party (usually a union) must do more than cite the statutory clause its claiming was violated but "how those alleged facts allegedly violate" the law.
- The "secrecy" of the GC's internal manuals and guidance to the field.
No regular reader of this column will be surprised to hear me express the opinion that Roth's is a hilarious letter about silly issues given the subject matter and the history of the FLRA GC and its revised regulations.
For example, I don't remember AFGE crying out in protest when the Clinton Era General Counsel forced sworn statements out of potential management witnesses to events surrounding a ULP allegation in the 1998 revisions. This was an interesting revision in that the GC maintained that anything other than the charge and not even its supporting information or any other information developed in the investigation was subject to discovery by Agency representatives. In any ULP proceeding, this gave an overwhelming advantage to FLRA's prosecutors.
In other words, if Agency management is behind the 8 ball that's OK but if the union perceives any potential disadvantage, the Regs must be wrong. Really!
Let's Talk About Neutrality
Last year I wrote an article asking if FLRA's Field staff could be neutral since FLRA allowed, in an apparent conflict with the labor law, its staff to unionize. My concern was that the very same staff person who was expected to broker early settlement discussions was the exact same person in almost every case who would prosecute the case if it went to hearing.
Why doesn't that bother Mr. Roth and AFGE. Here's why: unions file almost all Unfair Labor Practice allegations (charges) that are filed. Employees file a very small fraction and Agency filings are rarer than neutral field staff.
Ms. Kiko is saying in the proposed Regs that FLRA-brokered settlement should wait until after a union charge is determined to be meritorious. This means that the GC would now be out in the open as a prosecutor and not in the foggy, and always schizophrenic world of claimed neutrality. To quote a former FLRA Regional Attorney I appeared against, "when the record opens the gloves come off". I always wondered about whether he was talking about leaving fingerprints before that.
On a related note, Mr.Roth discusses the allegedly secret manuals provided Agency staff. If those documents are indeed internal administratively confidential guides, how does he know about them. One union member to another, maybe? You be the judge.
AFGE's Most Wonderful Objection
A wonderful objection to the proposed Regs is made on the issue of the union explaining its allegation in the charge. Up to now, the union merely had to cite a statutory revision to get a full blown investigation. No, none on the union side of the table had to back up the allegation with facts or make that most difficult (according to AFGE) effort of understanding what a violation might be. "I know one when I see one" has all the union has had to do. Now, perhaps, the playing field may get a little more level when the union must put up a case or shut up. In the interest of fairness, it's about time.
A Word About Secrecy
During the Clinton Era, I was head of Labor and Employee Relations for a Federal Agency. I attended a session at an OPM conference in which one of the then GC's senior minions was running down the year's developments. During a question and answer session, I asked about the GC's "litigation policy" that the minion had mentioned and was told that it was secret and non-disclosable. I followed up by asking whether the then Republican Congress might be interested in seeing that policy which, because unions filed virtually all the charges, must be almost exclusively directed at Agency management. When back at work, I got a call from the FLRA attorney telling me that the GC viewed my question and comment in less than a positive manner and inquired if I wanted my Agency head to get a call outlining my obviously disloyalty (to the then Democrat administration, I suppose). To my never ending regret, because I didn't want to cause difficulty for a boss who I admired, I didn't tell him what he could with his threat. Shame on me!
A Last Word
Neutrality bites. To be truly neutral is to be anathema to all advocates' positions, postures, stances, or beliefs. I spent years being tired of hearing FLRA types proclaim their commitment to "collective bargaining" which when fleshed out always seemed to me to have a more union than management bias. FLRA hired new law school grads who had never worked in a management environment and who generally attributed Agency actions to the grinding of management's jackbooted heel into the neck of the oppressed worker and his or her selfless and beleaguered union rep.
As a result, I didn't trust their motives or the way they operated. If you ask a criminal attorney what his client should say to a prosecutor, the answer is always to limit any comment to two words, "NOT GUILTY". While FLRA's prosecutors don't deal with criminal matters, the advice applied to ULP cases always seemed wise to me. Maybe General Counsel Colleen Kiko is at last recognizing a reality.
If so, good for her.
© 2008 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.
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