On February 17, the Federal Labor Relations Authority (FLRA) issued a Press Release announcing the reestablishment of its Collaboration and Alternative Dispute Resolution Office otherwise known as CADRO.
The Press Release states that the mission of CADRO is: “CADRO also will once again offer high-quality training and facilitation services to help agencies and labor organizations more effectively prevent and manage conflicts that otherwise could erupt into litigation before the FLRA.“
I walked away from a complex dealing with CADRO some years ago that left me with the belief that a principal purpose of the office was to allow FLRA to avoid having to decide difficult cases or perhaps ones that FLRA didn’t want to take on for some reason. I also took away from that experience some thoughts for Agency negotiators, advocates and executives considering using CADRO or perhaps being pressured to do so by an FLRA component.
Are there cases where CADRO serves a legitimate purpose? Certainly. Bad cases make bad case law and ill-considered cases i.e., those poorly thought out in house are likely losers. If using CADRO gets an Agency to rethink a bad decision or the union to withdraw, it’s worth using. I guess I believe that Agencies using CADRO who don’t very carefully approach the experience are putting themselves in the hands of people whose interests are not theirs. This is a clearly an unwise move.
#1 Considerations for an Agency
Don’t lose sight that CADRO is about the FLRA avoiding litigation and therefore there is an agenda that underlies the entire process. I haven’t heard much about efforts to resolve arbitration exceptions or representation cases, so this article addresses negotiability and ULP cases.
Almost all negotiability and ULP cases are filed against an Agency and therefore the agency will certainly be the focal point of CADRO pressure to resolve. An Agency shouldn’t be before CADRO or FLRA for that matter unless its case is well considered.
Agencies are hopefully smart enough not to want to unnecessarily rile an adjudicative Agency like FLRA and so are likely to agree to at least hear what CADRO has to say. The Agency, in my case, got pressure to involve CADRO in advance There was no Agency request for assistance.
Also, from day one, there were two lines of pressure. First was “FLRA will rule against you so withdraw or change your position”. Second was a persistent attempt to undermine the theory of the case. In other words, the case has no legs. I never got the impression at any time that I was dealing with anything but the FLRA. CADRO, as a neutral or mediator, never really appeared.
“Do I Look Like I’m Negotiating”” – Michael Clayton (2007 AD)
My experience was that the process was advocacy, not negotiation. Remember this is a pre-litigation process and everything said or done is or will shortly become known to those FLRA players including some or all of the members depending on the politics (big or little p) involved.
You should say nothing to the CADRO staff you don’t want the case decision makers or writers to know. This is not a mediation process and the operating ethics of someone like a Federal Mediation and Conciliation Service mediator were not in evidence. You are working your case the entire time you’re there.
I do believe, as in any case, if an opportunity to resolve the case favorably arises, take it. It’s also an opportunity to trial run your theories, facts, and evidence for your own benefit if you decide that’s a worthwhile effort.
“A Fool and His Money are Soon Parted” -Tusser (1557 AD)
Since using CADRO is tantamount to going to a hearing, similar preparation advice applies:
- Assign someone to represent the Agency that can adapt from a typical hearing environment to one more like an unstructured debate.
- Focus on the strengths of your case and how precedent applies or doesn’t. If there’s no applicable precedent argue that’s why you are forced to be there. (Before FLRA)
- If the Agency has decided that it is likely to get an unfavorable ruling from FLRA but is optimistic about a court review, that is your last, not first argument. After all, the union may be convinced for some reason to withdraw.
- CADRO may first pressure the Agency. If so, turn the tables at every opportunity to put a resolution in the union’s hands. After all, they’re the actor here.
- Don’t admit fault in your case, it’s the other guy’s job to do that. On that note, listen much more than you talk.
- Your approach to CADRO should consider stressing the question, “what makes you so sure the Agency will lose?”
- Keep your composure. Some of the FLRA staff involved in my case gave off what I call FLRA superiority syndrome, i.e., we know oh so much more than you do, why don’t you just do as we say. No kidding. Many of us have seen it before and while annoying, it’s also kind of funny to watch. Few, if any, FLRA Staffers have bargaining experience.
- I think the closest analogy to a CADRO experience is an unstructured presentation of your opening and closing arguments but try to avoid making it look that way.
- Don’t even think about doing CADRO unless you know your case intimately and can advance it convincingly.
In the case I was involved with, CADRO finally realized the Agency wasn’t going to move off its case and turned its attention to the union, which withdrew its case in relatively short order. I believe to this day that FLRA did not want to rule on the issues in that case because despite the union’s claims, it would have had to rule for the Agency, and it didn’t like the precedents that might have been established. In other words, the then very union-friendly FLRA didn’t want to have to establish a precedent it might find distasteful but inevitable.
Proceed with care in dealing with CADRO. It is a unique experience. It appeared to me from beginning to end to be a three party as opposed to a third-party process. I hope it’s different for you but have my doubts it will be. I also doubt this article will make it into the CADRO training handouts but you never know.
As always, the opinions stated herein are mine.