FLRA Proposes New Unfair Labor Practice Regulations: Reverses Bush Era Hands Off Policies and Eliminates Neutrality Provision

In reviewing what, on the surface, appears an innocuous change to the FLRA General Counsel’s Regulations, the author suggests there may be more involved.

Apparently no dust will settle on the Federal Labor Relations Authority (FLRA)’s stated goal of supporting an Obama Administration friendly to Federal labor unions. The FLRA General Counsel issued a press release announcing its proposals to change its Unfair Labor Practice regulations.

You can see a side by side comparison sheet showing current regulations, proposed regulations and the GC’s rational for the change. I provide the comparison to help you understand the differences.

I always found the style of the Federal Register proposals for regulation changes cumbersome to work with. I’m hoping (probably in vain) that the FLRA might adopt the side by side approach as a more transparent approach to a more open process. As our President has said, “You notice that people who’ve been in Washington too long, they don’t talk like ordinary folks,”

New GC Proposes to Can Regulation Requiring FLRA Neutrality

Most of the changes reassert earlier FLRA policies involving case settlement. One interesting change, though, involves the General Counsel’s neutrality statements. The Bush era GC revised the regulations to read:

§ 2423.8   Investigation of charges.

 (a) Investigation . The Regional Director, on behalf of the General Counsel, conducts an unbiased, neutral investigation of the charge as the Regional Director deems necessary. During the course of the investigation, all parties involved are afforded an opportunity to present their evidence and views to the Regional Director.

The Current GC’s proposal changes the Reg to read:

§ 2423.8 Investigation of charges.

(a) Investigation. The Regional Director, on behalf of the General Counsel, conducts an investigation of the charge as deemed necessary. During the course of the investigation, all parties involved are afforded an opportunity to present their evidence and views to the Regional Director.

The rationale stated in the proposed regulations says:

Section 2423.8

This section, which provides for the investigation of charges, is substantially unchanged. The proposed revision deletes the reference to the neutral and unbiased nature of unfair labor practice investigations that was incorporated in the February 18, 2008 revision of this regulation. As a public prosecutor, the Office of the General Counsel always strives to complete unfair labor practice investigations in a neutral and unbiased manner. Therefore, any additional reference is unnecessary.

(Above underlined emphasis is all mine. –Author)

The GC tells us her staff will always strive to act in a neutral and unbiased manner but has lifted the requirement to do so. As an organization that almost exclusively represents parties with a claim against Agency management and since almost none of her staff has ever represented an Agency other than FLRA in anything, a claim like hers sounds a little patronizing from those of us who have experience representing Agencies in dealing with the GC.

Trying to be neutral is not the same as committing to a policy of neutrality. We all know the quote even though we learned it from Yoda, “Try not. Do or do not, there is no try.”  The GC may benefit from Somerset Maugham who said, “You can’t learn too soon that the most useful thing about a principle is that it can always be sacrificed to expediency.” No offense to the GC, but coming from the union side, she may not have seen the same “public prosecutors” those of us in management have dealt with.

Other Proposals Involve GC Staff in Lowest Level Settlement Attempts

Most of the rest of the changes deal with using ADR to resolve ULP disputes. The Bush era policy of allowing the parties to work things out faces replacement with the involvement of the GC at every level of the dispute. Hearing an FLRA staffer’s claim that “I’m from the FLRA and I’m here to help you” is a little hard to swallow when that same self admitted “public prosecutor” turns up in a courtroom representing the union on an issue if you don’t cave to a deal the union is proposing. It happens. It has happened a lot.

If the GC doesn’t know that, then she’s got her head firmly placed in the sand. Leave neutrality in, unless you can’t stand the pressure.

Comment on the proposed regulations. They’re asking you to do so. You’ll find out how to make comments at the top of the comparison.

As always, these are my views and should not be attributed to others.

Comparison of Existing/Prop…

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.