On October 2, 2006, the General Counsel of the Federal Labor Relations Authority (GC), Colleen Duffy Kiko, issued a new policy on settlements in pending unfair labor practice (ULP) cases.
In a nutshell, the new policy says that the GC and her staff will only pursue or get involved in settling cases that “warrant prosecution”. This sounds simple. Perhaps it is but there are a number of questions raised by the change.
Questions about the “Determination”
The new policy talks about the time between a “determination to issue complaint” and “prior to actual issuance” as ripe for the Regional Offices to take an “active role” in resolution. Does this mean the parties will get a verbal notice that a determination has been made? I assume that it would have to be verbal because if an agency got a letter telling it somebody decided the agency had violated the labor relations statute, that would be the issuance of the complaint. Right?
Also of interest is whether the time between the determination and actual issuance is fixed or variable. If it’s fixed then it would logically constitute a settlement deadline along the lines of “you’ve got XX days to offer up an acceptable deal or get the complaint”. Also of interest is which organization will decide the amount of time available to settle the case, the headquarters office or the regional offices?
Questions about the Role of the GC’s staff
It appears that GC schizophrenia has not been cured by the new policy. The general counsel’s staff are identified in the policy as ”neutral fact-finders” in the pre-complaint process who then morph into a “prosecutor pursuing violations of the statute”.
The National Institutes for Mental Health describes the disorder: “People with schizophrenia may hear voices other people don’t hear or they may believe that others are reading their minds, controlling their thoughts, or plotting to harm them. These experiences are terrifying and can cause fearfulness, withdrawal, or extreme agitation. People with schizophrenia may not make sense when they talk, may sit for hours without moving or talking much, or may seem perfectly fine until they talk about what they are really thinking.” Does this sound like some of the Field Attorneys you’ve dealt with?
But seriously folks, can one expect a reasonable resolution to result under the circumstances where the GC’s people think they can prove the agency did the deed?
Questions about “Private Settlement Agreements”
The policy uses a new term “private settlement agreements”. Up to now, agreements between the agency and the charging party (almost always the union) have been called “party settlements”. Since we’re talking labor relations, new words used usually connotes new meanings.
If so, has the the GC got in mind? Under FLRA regulations, a party can withdraw a charge. This has meant that the parties could get together and resolve the allegation between themselves. In fact, under the new policy, it appears clear that the GC’s staff is being instructed not to get involved in “pre-determination” settlement discussions between the parties. Also evident is the policy’s clear decision that the GC will not be a part or signatory to any “pre determination or issuance deal”. What’s unclear is whether the union (usually the charging party) will be a party in a deal after the determination to issue is made.
Questions about the role of the Union in “post-determination, pre–issuance settlement discussions”
The policy was noticeably silent on the role of the union in “post-determination, pre–issuance settlement discussions” (PDPISD’s – sounds like a new buzzword to me!). Up to now, the GC encouraged “party settlements” even after the issuance of a complaint and only engaged in “unilateral settlements” (Between the GC and the agency respondent with no union involvement) as a last resort when the union would not accept the settlement.
What Does All this Mean?
If I were representing an agency in this brave new world of PDPISD’s, I think would keep some things in mind.
- Get your facts nailed down early.
- Since the focus appears to be on carrying out the statutory requirement to prosecute violations, prepare extensively and smartly to deal with the GC’s folks from day one.
- Unless the General Counsel has silently eliminated the old guard, the same regional directors and staff are still out there. Virtually all of them ended up representing union interests in ULPs since the unions were their almost exclusive clients.
- Make sure you have a defensible case theory if it looks like the CG’s people are hot to issue.
- Settle bad cases with the union early on. Make sure managers know the risks. Remember the labor relations advisor’s motto: If you’re gonna eat crow, eat ‘em when they’re small!
You’ve heard my take on the new policy, what’s yours?
The responsibility for the ideas and statements herein are mine and mine alone.