Federal Labor Relations Authority Update
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Federal Labor Relations Authority Update


ALL RIGHT,
GOOD AFTERNOON. GOOD AFTERNOON.
GOOD AFTERNOON. AND WELCOME
TO OUR PRESENTATION TODAY. THE FEDERAL LABOR
RELATIONS AUTHORITY, OFFICE
OF GENERAL COUNSEL UPDATE. THIS IS A REPORT
ON THE TRAINING, CASE PROCESSING
AND LEGAL DEVELOPMENTS. MY NAME IS TOM WACHTER AND I’M THE
ACTING DEPUTY ASSOCIATE DIRECTOR FOR PARTNERSHIP
AND LABOR RELATIONS HERE AT OPM. AND THIS EVENT’S PART
OF OUR ONGOING PROFESSIONAL DEVELOPMENT PROGRAM FOR THE FEDERAL
EMPLOYEE RELATIONS COMMUNITY, EMPLOYEE LABOR
RELATIONS COMMUNITY. WE ARE DELIGHTED TODAY
TO WELCOME TO OPM FOLKS FROM THE FEDERAL
LABOR RELATIONS AUTHORITY, OFFICE OF THE GENERAL COUNSEL. WE HAVE THE GENERAL COUNSEL, THE ASSISTANT,
THE DEPUTY GENERAL COUNSEL AND THE ASSISTANT
GENERAL COUNSEL FOR APPEALS. BEFORE WE DO INTRODUCTIONS
WITH THE PANEL, I JUST WANTED TO COVER
SOME INFORMATION ABOUT THE PRESENTATION TODAY. FOR THOSE OF YOU
IN THE AUDITORIUM HERE, THIS PRESENTATION
IS ALSO BEING WEBCAST TO SEVERAL HUNDRED
FOLKS THROUGHOUT THE COUNTRY. AND IN ORDER TO MAKE SURE
THAT ALL YOUR QUESTIONS AND COMMENTS ARE HEARD, WE ASK THAT YOU WAIT UNTIL
THE MICROPHONE COMES TO YOU IF YOU’RE HERE
AT THE AUDITORIUM. AND FOR THOSE OF YOU
VIEWING BY WEBCAST, YOU CAN SEND YOUR QUESTIONS
OR COMMENTS TO [email protected] ALSO FOR THE AUDITORIUM FOLKS, RESTROOMS ARE STRAIGHT
OUT HERE, PAST THE ELEVATORS, AND THE SECURITY GUARDS
ON YOUR LEFT. EACH OF YOU
SHOULD HAVE RECEIVED A PACKAGE, EITHER AN E-MAIL TO YOU
IF YOU’RE ON WEBCAST OR AS YOU CAME IN
THE DOOR HERE. AND IN THERE, YOU’LL FIND
A COUPLE OF THINGS, AN AGENDA, A POWERPOINT PRESENTATION,
SPEAKER’S BIOGRAPHY, AND AN EVALUATION FORM. AND WE DO ENCOURAGE YOU
TO PLEASE COMPLETE THE EVALUATION FORMS BECAUSE THEY HELP US SET UP
NEW PROGRAMS IN THE FUTURE THAT ARE HOPEFULLY
OF INTEREST TO YOU. THOSE OF YOU WHO ARE
VIEWING BY WEBCAST, YOU CAN ALSO E-MAIL
THOSE EVALUATIONS FORMS TO PLR.GOV. OR YOU CAN FAX THEM
TO 202-606-2613. THE FEDERAL LABOR
RELATIONS AUTHORITY IS AN INDEPENDENT
ADMINISTRATIVE FEDERAL AGENCY, ESTABLISHED BY THE CIVIL
SERVICE REFORM ACT IN 1978, ALONG WITH OPM AND THE
MERIT SYSTEMS PROTECTION BOARD. IN THIS PAST YEAR,
THE FLRA HAS CELEBRATED ITS 30th ANNIVERSARY. THE AUTHORITY
IS A QUASI-JUDICIAL BODY WITH THREE FULL-TIME MEMBERS WHO ARE APPOINTED
FOR FIVE-YEAR TERMS BY THE PRESIDENT WITH THE
ADVISING CONSENT OF THE SENATE. IT OVERSEES THE RIGHTS
OF FEDERAL EMPLOYEES TO FORM COLLECTIVE
BARGAINING UNITS AND TO ENGAGE IN COLLECTIVE
BARGAINING WITH AGENCIES. AND THE AUTHORITY’S MISSION
IS TO CARRY OUT SOME PRIMARY
STATUTORY RESPONSIBILITIES AS EFFICIENTLY AS POSSIBLE, AND IN A MANNER
THAT GIVES FULL EFFECT TO THE RIGHTS AFFORDED
TO EMPLOYEES AND AGENCIES UNDER THE FEDERAL SERVICE LABOR
MANAGEMENT RELATIONS STATUE. THE PRIMARY STATUTORY
RESPONSIBILITIES ARE TO RESOLVE COMPLAINTS OF
UNFAIR LABOR PRACTICE CHARGES, TO DETERMINE
THE APPROPRIATENESS OF UNION REPRESENTATION
OF EMPLOYEE, TO ADJUDICATE EXCEPTIONS
TO ARBITRATIONS, ARBITRATION AWARDS
AND OTHER ISSUES RELATED TO BARGAINING AND TO RESOLVE IMPASSES
DURING NEGOTIATIONS. IN ORDER TO PERFORM
THESE FUNCTIONS, THE FLRA IS ORGANIZED
INTO THREE DISTINCT COMPONENTS, THERE IS THE AUTHORITY, THE OFFICE
OF THE GENERAL COUNSEL AND THE FEDERAL SERVICE
IMPASSES PANEL. AND ALL OF THESE COMPONENTS
SUPPORT AND ENGAGE IN COLLABORATIVE AND ALTERNATIVE
DISPUTE RESOLUTION ACTIVITIES AS AN INTEGRAL PART
OF THEIR PROGRAMS. THE OFFICE
OF THE GENERAL COUNSEL HAS DIRECT AUTHORITY OVER
AND RESPONSIBILITY FOR ALL EMPLOYEES IN THE
OFFICE OF THE GENERAL COUNSEL AND IN THE REGIONAL OFFICES. THE REGIONAL STAFF INVESTIGATE
UNFAIR LABOR PRACTICES, FILE AND PROSECUTE
COMPLAINTS, PROCESS AND DETERMINE
REPRESENTATION MATTERS AND PROVIDE TRAINING AND ALTERNATIVE
DISPUTE RESOLUTION SERVICES TO UNION REPRESENTATIVES
AND FEDERAL MANAGERS. OUR SPEAKERS TODAY
WILL UPDATE US ON THE FLRA, OFFICE OF GENERAL
COUNSEL DEVELOPMENTS. THEY ARE GENERAL COUNSEL
JULIA CLARK, DEPUTY GENERAL
COUNSEL DENNIS WALSH, AND ASSISTANT GENERAL
COUNSEL FOR APPEALS, RICHARD ZORN. MISS CLARK WAS NOMINATED
BY PRESIDENT OBAMA ON JUNE 4th 2009 AND CONFIRMED BY
THE SENATE, AUGUST 7. BEFORE COMING
TO THE AUTHORITY, MISS CLARK
WAS A GENERAL COUNSEL OF THE INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, THE AFL-CIO. SHE RECEIVED HER JD FROM THE AMERICAN UNIVERSITY
WASHINGTON, COLLEGE OF LAW. GENERAL COUNSEL CLARK
STARTED HER LEGAL CAREER AS AN HONORS PROGRAM
TRIAL ATTORNEY IN THE UNITED STATES
DEPARTMENT OF JUSTICE, ANTITRUST DIVISION. FOR THE PAST 20 YEARS,
SHE HAS PRACTICED LABOR AND EMPLOYMENT LAW BEFORE
FEDERAL COURTS AND AGENCIES INCLUDING THE FLRA, THE NLRB, THE NATIONAL MEDIATION BOARD
AND THE PERSONAL APPEALS BOARD OF THE GOVERNMENT
ACCOUNTABILITY OFFICE. MR. DENNIS WALSH
PREVIOUSLY SERVED AS A MEMBER OF THE NATIONAL LABOR
RELATIONS BOARD ON THREE DIFFERENT OCCASIONS UNDER BOTH PRESIDENT CLINTON
AND PRESIDENT BUSH. HE HELD SEVERAL
STAFF POSITIONS AT THE NLRB INCLUDING CHIEF COUNSEL
FORMER MEMBER WILMA LIEBMAN AND FORMER MEMBER BROWNING. AFTER PRACTICING LAW
WITH THE PHILADELPHIA FIRM, SPEAR, WILDERMAN, BORISH,
ENDY, BROWNING AND SPEAR. MR. WALSH HAS BEEN
AN ADJUNCT PROFESSOR OF LABOR LAW AT
HOWARD UNIVERSITY SCHOOL OF LAW FOR SEVERAL YEARS. HE RECEIVED HIS JD
FROM CORNELL LAW SCHOOL. MR. RICHARD ZORN IS
THE ASSISTANT GENERAL COUNSEL FOR APPEALS AT THE AUTHORITY. HE HAS HELD THIS POSITION
SINCE MARCH 2001, AND HAS WORKED IN THE OFFICE
OF THE GENERAL COUNSEL SINCE 1998. HE’S ALSO OGC’S FREEDOM
OF INFORMATION ACT OFFICER AND THE MANAGER OF
OGC’S PORTION OF FLRA’S WEBSITE. MR. ZORN HAS WORKED
FOR THE AUTHORITIES SINCE 1990. FIRST, AS A STAFF ATTORNEY
IN THE SOLICITOR’S OFFICE AND THEN ON A MEMBER STAFF. HE HAS A BA DEGREE
FROM HOBART COLLEGE IN GENEVA, NEW YORK, AN MS IN HEALTH SERVICE
ADMINISTRATION FROM OHIO STATE UNIVERSITY AND A JD DEGREE
FROM THE UNIVERSITY OF DAYTON IN DAYTON, OHIO. WE ENCOURAGE YOU
TO ASK QUESTIONS FOLLOWING
EACH SPEAKER’S PRESENTATION, AND THE WEBCAST VIEWERS, AGAIN, CAN E-MAIL THEIR QUESTIONS
AT ANYTIME DURING THE PRESENTATION. SO, PLEASE JOIN ME
IN WELCOMING OUR PANEL. [applause] THANK YOU, TOM. AND THANKS TO ALL OF YOU, WHO’VE SET ASIDE A PART
OF YOUR DAY THIS AFTERNOON, TO PARTICIPATE WITH US IN PROVIDING
AN UPDATE ON THE WORK THAT WERE DOING AT THE OFFICE
OF GENERAL COUNSEL AT THE FEDERAL LABOR
RELATIONS AUTHORITY. BEFORE WE GO TOO FAR
INTO THE PROGRAM, I WANTED TO SAY SOMETHING
ABOUT THE FLRA STAFF WHO ARE WITH ME HERE TODAY. IF THOSE OF YOU
WHO’VE PRACTICE BEFORE THE FLRA OVER THE PAST YEARS OR EVEN IF YOU’RE NEW
TO THIS PRACTICE ARE PROBABLY AWARE
OF THE STRUGGLES THAT MY AGENCY HAS GONE
THROUGH OVER THE LAST DECADE. ONE OF THE MOST DIFFICULT
ASPECTS OF THE STRUGGLE WAS THE LONG PERIOD
OF VACANCIES IN KEY POSITIONS WHICH MEANT THAT WE WERE
SIMPLY UNABLE TO DO OUR JOBS. ONE OF THOSE KEY POSITIONS
IS THE ONE I HOLD NOW, THE GENERAL COUNSEL’S POSITION
WAS VACANT FOR 18 MONTHS. AND DURING
THAT PERIOD OF VACANCY, NO DEPUTY GENERAL COUNSEL
WAS NAMED, AND AS A RESULT, THE OPERATIONS
OF THIS IMPORTANT COMPONENT OF OUR AGENCY REALLY
GROUND TO A HALT. SO THAT ONE OF MY– I SHOULDN’T SAY “ONE OF MY,” VERY FIRST PRIORITY WAS TO
NAME A DEPUTY GENERAL COUNSEL. FOR A PERIOD OF TIME, YOU
MAY KNOW THAT A CAREER STAFFER FROM A CAREER
REGIONAL DIRECTOR FROM THE FLRA, PETER SUTTON,
SERVED IN THAT ROLE, WHILE WE CONDUCTED
AN EXTENSIVE SEARCH FOR THE RIGHT CAREER PERSON
FROM THE GOVERNMENT TO TAKE ON
THIS IMPORTANT POSITION, AND I’M VERY PROUD TO
HAVE DENNIS WALSH HERE WITH ME. AND HOPEFULLY,
ON EVERY OCCASION POSSIBLE WHEN I’M SPEAKING,
I CAN HAVE HIM HERE WITH ME TO MEET ALL OF YOU, WHO
I THINK IS GONNA BE WORKING WITH FOR MANY YEARS TO COME. RICHARD ZORN,
WHO’S ALSO UP HERE, IS A VALIANT AND TALENTED ATTORNEY. AND I SAY TALENTED BECAUSE OF THE
EXTRAORDINARY WORK THAT HE DOES, BUT VALIANT BECAUSE
HE’S STUCK WITH OUR ORGANIZATION THROUGH THESE TROUBLED TIMES. AND WAS THE FIRST PERSON
I MET WHEN I WALKED IN THE DOOR AFTER MY APPOINTMENT
WAS FINAL. AND HE HAS BEEN
AN INVALUABLE RESOURCE AND WE’RE ALL VERY,
VERY LUCKY FOR HIM AND ALL THE PEOPLE LIKE HIM, WHO’S STUCK WITH OUR AGENCY, AND ARE HERE NOW
TO HELP US REBUILD. IN THE AUDIENCE,
WITH US HERE TODAY IS OUR NEW WASHINGTON
REGIONAL DIRECTOR, BARBARA KRAFT. MANY OF YOU MAY HAVE SEEN
THE ANNOUNCEMENT THAT BARBARA IS GONNA STAND, SO THAT THOSE OF YOU
WHO ARE ON THE WEBCAST WILL KNOW THAT
THIS IS THE TRUTH. WE REALLY HAVE
A WASHINGTON REGIONAL DIRECTOR WHO IS, COMES TO US AFTER A CAREER
SERVING BOTH AS A MANAGER, AS A UNION REPRESENTATIVE AND AS A NEUTRAL,
AS A CAREER EMPLOYEE OF THE NATIONAL LABOR
RELATIONS BOARD. SHE IS THERE TO PROVIDE
THE STRONG FOUNDATION WE’VE ALWAYS NEEDED
IN WASHINGTON TO SERVE THE LABOR
RELATIONS COMMUNITY, MOST OF WHICH, IF NOT PRESENT
IN THE WASHINGTON METRO AREA ARE CERTAINLY CONNECTED
IN SOME WAY TO THE WASHINGTON
METROPOLITAN AREA. I WANT TO ALSO
PROVIDE YOU WITH, I GUESS,
A QUALIFIER OF SORTS THAT I OUR PRESENTATION TODAY IS FROM THE OFFICE
OF THE GENERAL COUNSEL. THE FLRA IS
AN INDEPENDENT AGENCY. THE OFFICE OF GENERAL COUNSEL
IS AN INDEPENDENT COMPONENT WITHIN THAT AGENCY. WE HAVE
THE STATUTORY RESPONSIBILITY TO INVESTIGATE AND
PROSECUTE UNFAIR LABOR PRACTICES AND ALSO HAVE
THE DELEGATED AUTHORITY TO OVERSEE THE PROCESS
OF ALL REPRESENTATION PETITIONS THROUGH OUR REGIONAL OFFICE. THE GENERAL COUNSEL
IS RESPONSIBLE FOR SUPERVISING ALL OF THE REGIONAL OFFICES, SO THAT APPROXIMATELY
HALF OF THE AGENCY’S STAFF COMES UNDER THE SUPERVISION
OF THE GENERAL COUNSEL. ON BEHALF OF ALL
THOSE HARDWORKING WOMEN AND MEN, THANK YOU FOR BEING
A PART OF OUR COMMUNITY AND WE LOOK FORWARD
TO SERVING YOU TO OUR VERY BEST. WITH THAT I WANTED
TO BEGIN TO PROCEED WITH THE UPDATE
THAT WAS PROMISED TO YOU, AND THE WAY THIS UPDATE
IS STRUCTURED IS BASED ON THE TESTIMONY I GAVE AT MY CONFIRMATION
HEARING BEFORE THE SENATE, WHERE I WAS ASKED
TO OUTLINE MY PRIORITIES, AND I SEE THAT AS MY GUIDE, THE PROMISES I MADE
TO THE COMMITTEE AND THE BASIS
ON WHICH I WAS CONFIRMED AND ANY CHANGES
TO THOSE PRIORITIES WOULD HAVE TO BE
VERY CAREFULLY THOUGHT THROUGH. SO HERE WE GO. LET’S SEE IF I CAN NAVIGATE
THE POWERPOINT. I WAS TRAINED IN THIS BUT– DOWN? OKAY. OH, THERE WE GO.
ALL RIGHT. NOW I’M OFF AND RUNNING. I WAS ALLOWED AT LEAST
ONE MISTAKE, I HAVE TWO MORE. THAT’S ONE.
ONE IS OVER WITH. ALRIGHT, THE PRIORITIES
FOR OBVIOUS REASONS, I HAVE ESTABLISHED
A TIME FRAME HERE OF 2009 THROUGH ’12. THE FIRST BULLET POINT
YOU’LL SEE IS THAT OF ELIMINATING
THE BACK LOG OF COMPLAINING APPEALS
CASES WITHIN THE FIRST 180 DAYS. I ALLUDED TO THE IMPACT
OF THE GC VACANCY WHICH WAS THAT IN MANY–
IN A REAL SENSE, THE WORK OF OUR COMPONENT
GROUND TO A HALT, AND THERE WAS
AN ENORMOUS BACKLOG THAT EXISTED WHEN I TOOK OFFICE. SECONDLY, RESTORING
INFORMATION RESOURCES. AND I THINK MANY OF YOU,
IF YOU’VE PRACTICED THIS AREA OR AWARE OF WHAT
I’M TALKING ABOUT THERE. AND THEN,
OUR LONG TERM PRIORITY, WHICH IS TO IMPROVE
UNFAIR LABOR PRACTICE AND REPRESENTATION
CASE PROCESSING. WE’RE GONNA GET INTO
MORE DETAILS ON EACH OF THESE IN THIS REPORT. BUT FIRST, I’D LIKE
TO TALK ABOUT THE BACKLOG, SO THERE’S AN UNDERSTANDING
OF WHAT WE TALKED ABOUT, WHAT WE MEAN WHEN WE SAY
ELIMINATE THE BACKLOG. THERE WAS A BACKLOGGED
OF COMPLAINT CASES ABOUT– THOSE ARE MERIT CASES,
WHERE REGIONAL DIRECTORS HAD FOUND MERIT, AND THE PARTIES WERE WAITING
FOR SOMETHING TO HAPPEN. THERE WERE 800 APPEALS PENDING BEFORE RICHARD
IS PART OF OUR OPERATION. WE MADE A COMMITMENT
TO ELIMINATE THAT BACKLOG WITHIN A 180 DAYS
OF MY APPOINTMENT, AND WE HAVE SUCCEEDED
IN DOING THAT. EVERY SINGLE ONE
OF THESE 342 COMPLAINT CASES HAS EITHER SETTLED, IT’S BEEN TRIED
OR IT’S SCHEDULED FOR TRIAL. AND EVERY SINGLE ONE
OF THE 800 APPEAL CASES HAS BEEN DISPOSED OF, AND OUR AGENTS ARE
NOW WORKING AT CURRENT CASES. IN THIS NEXT PART
OF THE PROGRAM, DENNIS WALSH IS GOING
TO ADDRESS THE ISSUE OF IMPROVING
OUR UNFAIR LABOR PRACTICE AND REPRESENTATION
CASE PROCESSING TIME. HE’S GONNA GO INTO SOME
DETAIL ABOUT OUR TIME TARGETS, HOW WE ARRIVED AT THOSE. AND I JUST WANTED
TO PROVIDE SOME CONTACTS FOR WHY THIS IS SUCH
AN IMPORTANT PRIORITY FOR US. ONE IS, AS YOU WILL SEE, WE’RE NOT MEETING
OUR CURRENT TIME TARGETS. BUT THERE IS
ANOTHER REASON WHY THIS IS A FUNDAMENTAL
IMPORTANCE TO ME, AS A GENERAL COUNSEL. TO ME, THIS IS A NO-BRAINER. WE’RE ALL ENGAGED
IN THE WORK OF GOVERNMENT ON BOTH THE LABOR
AND THE MANAGEMENT SIDE. AND WHEN THERE IS
A LABOR RELATIONS DISPUTE, THAT DISPUTE CREATES AN OBSTACLE TO GETTING THE WORK
OF GOVERNMENT DONE. I’M NOT SAYING
THAT COLLECTIVE BARGAINING ITSELF IS AN OBSTACLE. THE CONGRESS AND THE PRESIDENT
HAVE ANSWERED THAT QUESTION. COLLECTIVE BARGAINING
IS IN THE PUBLIC INTEREST. BUT WHEN WE CAN’T RESOLVE
DISPUTES THAT COME UP IN COLLECTIVE BARGAINING, THEN WE ARE
AN OBSTACLE TO PROGRESS. I THINK THAT
IF YOU PRACTICE IN THIS AREA, YOU KNOW ALSO THAT
MOST UNFAIR LABOR PRACTICES ARISE IN THE CONTEXT OF
A MANAGEMENT INITIATED CHANGE. MOST REPRESENTATION
PETITIONS ARISE IN THE CONTEXT OF A MANAGEMENT
INITIATED REORGANIZATION. THAT’S THE BULK
OF OUR BUSINESS. THOSE DECISIONS
HAVE BEEN MADE BY MANAGERS. A LOT OF RESOURCES HAD GONE IN TO MAKING
THOSE KINDS OF DECISIONS. WHEN WE CAN’T PROCESS
DISPUTES THAT ARISE IN GETTING THOSE ACTIVITIES
TO A POINT OF COMPLETION, THEN WE ARE SLOWING DOWN
THE PROGRESS OF THE WORK THAT WE ARE ALL HERE TO DO. WE’RE GONNA TALK MORE ABOUT
HOW WE THINK WE CAN FACILITATE MOVING THOSE PETITIONS THAT
THOSE UNFAIR LABOR PRACTICE, COMPLAINT CASES AND CHARGES
MORE QUICKLY. AND WE BELIEVE THAT
THAT IS IN THE PUBLIC INTEREST. WITH RESPECT
TO INFORMATION AND GUIDANCE, IF YOU’VE BEEN A PART
OF PRACTICING FOR OUR AGENCY, YOU UNFORTUNATELY EXPERIENCED
A POINT IN TIME WHEN YOU WERE UNABLE
TO ACCESS INFORMATION RESOURCES ON OUR WEBSITE. I’M NOT SURE IF ANYONE
IN THE AUDIENCE HERE, IT’S A LITTLE DIFFICULT
TO SEE THE WEBCAST, BUT I KNOW THAT
WHEN I MAKE THESE REMARKS AND WHEN I TALK TO PEOPLE
WHO HAVE PRACTICED IN THIS AREA, THEY ARE VERY FAMILIAR
WITH THE SITUATION THAT AROSE NOT TOO LONG AGO WHEN THESE RESOURCES
WERE NOT AVAILABLE, WHEN THE ONLY
INFORMATION RESOURCES AVAILABLE ON THE FLRA WEBSITE
WERE CHARGE FORMS AND REPRESENTATION
PETITION FORMS. THAT’S NOT GOOD
GOVERNMENT SERVICE. THAT’S NOT THE KIND OF SERVICE
THAT YOUR AGENCIES PROVIDE TO YOUR CUSTOMERS AND THAT IS NOT
THE KIND OF SERVICE THAT THE FLRA WILL BE
PROVIDING TO YOU, OUR CUSTOMERS, FOR SO LONG AS WE ARE
IN THE POSITION TO DO SOMETHING ABOUT IT. WHERE WE ARE RIGHT NOW IS, OUR GOAL WAS TO RESTORE
THESE INFORMATION RESOURCES WITHIN THE FIRST 18 MONTHS. AT PRESENT, OUR HISTORICAL
MANUALS AND GUIDANCE ARE POSTED AND OUR REGULAR TRAINING
MANUALS ARE BEING UPDATED. THIS HAS BEEN
A MASSIVE UNDERTAKING BECAUSE THERE WAS
NO UPKEEP OF THOSE MANUALS FOR, AS I’VE SAID,
NEARLY A DECADE. BUT WE ANTICIPATE
THAT WERE GONNA BE, BY THE END OF JULY, START POSTING
UPDATED INFORMATION RESOURCES FOR ALL OF YOU. WE’VE RESTARTED
ALL OF OUR TRAINING PROGRAMS, OUR STATUTORY
TRAINING PROGRAMS, BOTH BASIC AND ADVANCED. WE PROVIDE REPRESENTATION
CASE PROCESSING, PARTICULARLY, IN THE AREA
OF ACCRETION AND SUCCESSORSHIP, WHICH ARE SO VERY RELEVANT
TO PROCESSING PETITIONS THAT ARE GENERATED OUT
OF AN ACTIVITY REORGANIZATION. ALL OF OUR TRAINING MATERIALS
ARE NOW POSTED ON OUR WEBSITE WHICH IS A DEPARTURE FROM
THE PAST IN ANY ADMINISTRATION. BUT I FIRMLY BELIEVE
THAT THOSE RESOURCES ARE YOUR RESOURCES, AND THAT THEY SHOULD BE READILY
AVAILABLE TO YOU ON OUR WEBSITE. WITHIN THE WEEK, OUR EXECUTIVE
ORDER TRAINING MATERIALS WILL ALSO BE POSTED
ON THE WEBSITE. AS A PART OF
OUR TRAINING INITIATIVES, WE HAVE LAUNCHED
SPECIFIC TRAINING JOINTLY WITH FEDERAL MEDIATION
AND CONCILIATION SERVICE IN SUPPORT
OF THE EXECUTIVE ORDER. AND I HOPE THAT SOME OF YOU
ARE GONNA GET THE OPPORTUNITY TO PARTICIPATE IN IT. HOWEVER, I AM– I FIND IT– I’M ALMOST CERTAIN THAT IF YOU AREN’T GOING
TO PARTICIPATE, SOMEONE YOU WORK WITH
OR SUPPORT WILL BE, FOR THAT REASON. AS A PART OF MY PRESENTATION
IN THE PROGRAM, I’M GONNA GIVE YOU
AN OVERVIEW OF THAT TRAINING, SO YOU’LL HAVE SOME AWARENESS
OF OUR PRESENTATION BECAUSE I SUSPECT THAT
MANY OF THE PEOPLE YOU SUPPORT WILL BE ATTENDING
THESE TRAININGS. WE ESTIMATE THAT
BY THE END OF SEPTEMBER, WE WILL HAVE TRAINED
500 LABOR-MANAGEMENT PAIRS, SO 1,000 FOLKS
THAT ARE A PART OF YOUR SPHERE OF SUPPORT, AND INFLUENCE
WILL BE PARTICIPANTS IN THIS TRAINING. I’VE INCLUDED
IN YOUR MATERIALS, YOU’LL FIND THE LINK
TO OUR WEBSITE WHERE YOU CAN FIND
OUR TRAINING MATERIALS. ALL RIGHT, SO AS I SAID, WE ARE PROVIDING
TRAINING AND SUPPORT OF THE EXECUTIVE ORDER. THIS POWERPOINT, I BELIEVE, THAT WILL NOT MENTION
A SECOND TYPE OF TRAINING WHICH JUST BECAME
A REALITY THIS WEEK, AND IF IT’S NOT HERE,
I’LL CLUE YOU IN TO IT. BUT THE JOINT
FMCS/FLRA TRAINING IS PROVIDED BY A TEAM OF ONE OF OUR FLRA’S
OGC SENIOR STAFF, TYPICALLY
A REGIONAL DIRECTOR, DEPUTY GENERAL COUNSEL WALSH
IS PROVIDING THIS TRAINING. IT WAS VERY IMPORTANT TO ME
THAT THESE TRAININGS BE PROVIDED BY OGC STAFF WHO ARE NOT ONLY EXPERT
IN THE LAW, BUT ALSO HAVE ENORMOUS
PRACTICAL EXPERIENCE WITH COLLECTIVE BARGAINING
AND WITH THE PARTIES SO THAT THEY’RE COMING IN
TO THE TRAININGS WITH SOME UNDERSTANDING
FOR THE KINDS OF ISSUES THAT ARE FACING
THE LABOR-MANAGEMENT PAIRS. AS A RESULT OF THE TRAININGS
THAT WE ANNOUNCED, WHICH WERE TRAININGS
IN OUR REGIONAL OFFICE CITIES, THAT ANY LABOR-MANAGEMENT
PAIR COULD SIGN UP FOR, WE FOUND THAT THE DEMAND
FOR THIS TRAINING WAS QUITE SIGNIFICANT. AND AS A RESULT OF THAT, WE HAVE BEEN RESPONDING
POSITIVELY TO REQUESTS FROM A NUMBER OF AGENCIES FOR TRAINING
THAT IS AGENCY SPECIFIC. AT PRESENT, WE HAVE AGENCY
SPECIFIC TRAINING SCHEDULED FOR TREASURY, THREE TRAININGS
AT THE DEPARTMENT OF LABOR. A TRAINING TODAY IS GOING ON AT THE DEPARTMENT
OF VETERANS AFFAIRS. WE SUSPECT THAT
WE WILL BE PROVIDING AGENCY SPECIFIC TRAINING THROUGHOUT
THE VA ON A REGIONAL BASIS. THE FAA, ARMY, THE MARINE CORPS,
THE NLRB, THESE TRAININGS,
THE DEMAND FOR THEM, YOU KNOW, CONTINUES, BUT WE SUSPECT THAT– WE INVITE YOU TO PARTICIPATE
AND WE SUSPECT THAT YOU’LL BE TOUCHED
BY THEM ONE WAY OR ANOTHER. THE TRAINING
IS A TWO-DAY TRAINING. THE FIRST DAY OF IT
IS PRESENTED BY OUR FLRA STAFF. THE FOCUS IS ON THE DUTY
AND SCOPE OF BARGAINING. THAT’S SOMETHING THAT,
OF COURSE, YOU KNOW, MANY OF THE PARTICIPANTS
MAYBE FAMILIAR WITH, BUT WE FEEL THAT
IT IS IMPORTANT TO PROVIDE THE STATUTORY CONTEXT THAT WE’LL BE WORKING WITH AND AS WE GO OUT
INTO THE EXECUTIVE ORDER AND THAT HAS BEEN
WELL RECEIVED AND IS WORKING
PRETTY WELL, SO FAR. OUR FLRA TRAINER
WILL ALSO INTRODUCE THE PARTICIPANTS TO THE ROLE
OF PRE-DECISIONAL INVOLVEMENT. THE ROLE THAT PRE-DECISIONAL
INVOLVEMENT CAN PLAY IN A LABOR MANAGEMENT
COMMITTEE, LABOR MANAGEMENT
RELATIONSHIP. WE HAVE REALLY TAKEN TO HEART WHAT WE THINK
ARE LESSONS LEARNED FROM OUR LAST EXPERIENCE WITH
A LABOR MANAGEMENT PARTNERSHIP THAT WAS CALLED THEN, AND THE ROLE THAT
PRE-DECISIONAL INVOLVEMENT CAN
PLAY IN A LABOR RELATIONSHIP, SO THAT WE CAN HELP
THE PARTIES USE PRE-DECISIONAL
INVOLVEMENT PRODUCTIVELY AND– SO I THINK
YOU’RE GONNA FIND, HOPEFULLY, AND I APPRECIATE
YOUR FEEDBACK IF THIS IS NOT
WHAT YOU’RE FINDING OR EVEN IF YOU JUST
WANT TO SAY, “ATTAGIRL, IT’S GOING WELL.” I’D LIKE THAT, TOO. THERE IS, UM, UH– THERE IS AN IMPORTANT ROLE
FOR PRE-DECISIONAL INVOLVEMENT AND WE, YOU KNOW,
WE WANT IT TO WORK WELL. AND WE CERTAINLY, YOU KNOW,
ABOVE ALL, YOU KNOW, WANTED TO DO NO HARM. SO WE– OUR TRAINING MATERIALS TRY TO, AGAIN,
PLAY OUT THE VARIOUS WAYS PRE-DECISIONAL
INVOLVEMENT CAN WORK AND, YOU KNOW,
HOW AND WHEN PARTIES MIGHT EXIT FROM THAT PROCESS. SO IT’S A WORK IN PROGRESS,
BUT SO FAR SO GOOD. THE SECOND DAY IS PROVIDED BY THE FEDERAL MEDIATION
AND CONCILIATION SERVICE AND IT’S BEEN, UH, I THINK, A VERY VALUABLE
PARTNERSHIP FOR US. THE FMCS IS CERTAINLY
HAS A LONG HISTORY AND EXPERIENCE OF TRAINING AND DEVELOPMENT FACILITATION
OF LABOR-MANAGEMENT COMMITTEES, DISPUTE RESOLUTION, INTERNATIONALLY
PRIVATE SECTOR, VERY COMPLEX SITUATIONS. AND TO US, YOU KNOW,
VERY IMPORTANTLY, THEY HAVE, YOU KNOW,
150 MEDIATORS IN 75 CITIES. AND SO IT’S A GREAT
RESOURCE FOR US TO COMPLIMENT OUR STAFF. WHAT FOLLOWS
ARE A NUMBER OF SLIDES THAT ARE EXCERPTS, THIS IS NOT
THE ENTIRE TRAINING, BUT EXCERPTS TO ORIENT YOU AS SENIOR LABOR
RELATIONS ADVISORS TO FEDERAL AGENCIES, SO THAT– I THINK IT’S IMPORTANT THAT NONE OF THIS
BE A SURPRISE TO YOU. I WANT TO CLUE YOU IN ALSO
THAT SOME AGENCIES HAVE ASKED FOR US
TO GIVE A BRIEF OVERVIEW TO JAZZ THEIR
LABOR RELATIONS SPECIALISTS, AND WE ARE HAPPY TO DO THAT. WE’VE DONE IT SEPARATELY
WITH JUST OUR PART OR JOINTLY WITH FMCS. FOR EXAMPLE, AT TREASURY, WHEN WE PROVIDE
THE TWO-DAY TRAINING, THE LABOR-MANAGEMENT PAIRS
ARE NOT NECESSARILY THE LR SPECIALIST. AND THOSE CHOICES ARE
REALLY THE PARTIES TO MAKE, BUT WE ARE SEPARATELY
PROVIDING A CONDENSED VERSION FOR THE LR SPECIALIST,
SO THAT– AND WE MAY FIND OURSELVES
DOING THE SAME WITH PROFESSIONAL STAFF
FROM THE UNIONS, SO THAT WHEN
THE UP-LINE SUPERVISORS COME TO YOU,
YOU WILL KNOW WHAT’S GOING ON. SO I DON’T THINK ANY OF THIS IS GONNA BE
A BIG SURPRISE TO YOU, AND I DON’T WANT
TO BORE YOU IN ANY WAY, BUT I JUST WANT YOU
TO UNDERSTAND MY PURPOSE FOR PROVIDING THE INFORMATION
IS TO HELP SUPPORT YOU, WHO ARE SUPPORTING
YOUR LINE MANAGERS. SO OUR TRAINING,
YOU KNOW, THERE– SOMETIMES, YOU’LL PROBABLY
FIND THIS IN YOUR WORK THAT, YOU KNOW,
ESPECIALLY, SUBJECT LIKE THIS, THE EXECUTIVE ORDER WHERE
THERE’S SO MUCH TALK AROUND IT. YOU FIND A LOT OF TIMES, THE PEOPLE WHO ARE SUPPOSED
TO BE USING IT, HAVE NEVER EVEN READ IT
CAREFULLY, AND IT IS NO FAULT OF THEIRS. WE’RE ALL BUSY. SO WE TAKE THE TIME
AND THE TRAINING TO JUST GO THROUGH,
AND MAKE SURE AND ORIENT PEOPLE TO WHAT THIS EXECUTIVE ORDER, NOT THE LAST ONE
OR WHAT WAS IMAGINED OR ANY OF THE DRAFTS
OF THIS EXECUTIVE, BUT WHAT THE ACTUAL
EXECUTIVE ORDER SIGNED BY THE PRESIDENT SAYS. SO THAT WE’RE ALL– WE ALL HAVE THE SAME FRAME
OF REFERENCE. THE FIRST IS TO FOCUS ALL
OF US ON THE ESSENTIAL PURPOSE WHICH IS TO MAKE
GOVERNMENT WORK BETTER, THAT’S WHAT WE ARE HERE FOR. WE MAKE IT CLEAR
WHAT THE EXECUTIVE ORDER DOES AND DOESN’T DO IN TERMS
OF COLLECTIVE BARGAINING, UH, EXCUSE ME,
IN TERMS OF STATUTORY RIGHTS. AND SOME CROWDS
ARE DIFFERENT THAN OTHERS. THERE’S OFTEN TIMES,
YOU KNOW, VERY– THIS MAY HAPPEN MORE
IN A FIELD LOCATION. THE FIRST QUESTION
IS ABOUT ENFORCEABILITY AND IF IT’S NOT ENFORCEABLE,
WHY ARE WE HERE? BUT, YOU KNOW, WE GET PASS
THAT NEGATIVITY INTO, YOU KNOW, WHAT CAN WE DO? I WON’T GO THROUGH, YOU KNOW, ANY OF THESE BULLETS
IN ANY DETAIL, YOU– I KNOW, HAVE READ
THE EXECUTIVE ORDER, BUT HERE’S A GOOD SUMMARY. I WANTED TO SHOW YOU
THIS SLIDE IN PARTICULAR BECAUSE WE HAVE FOUND
THAT THIS SLIDE IS VERY USEFUL DURING
THE FIRST DAY PRESENTATION TO HELP PEOPLE PSYCHOLOGICALLY UNDERSTAND, YOU KNOW, WHAT HAPPENS
WHEN YOU’RE IN A STATUTORY ENVIRONMENT
OF COLLECTIVE BARGAINING AND WHAT HAPPENS
OR CAN HAPPEN UNDER AN EXECUTIVE ORDER FORUM. AND AS QUESTIONS
COME IN, YOU KNOW, ONE WAY TO STRUCTURE
THE DIALOGUE IS, “OKAY, WHICH CIRCLE
ARE YOU IN?” AND YOU’LL NOTICE THAT
THESE CIRCLES DOES NOT OVERLAP. AND THAT’S BY DESIGN
TO MAKE THE POINT THAT THE CHOICE TO MOVE
FROM THE EXECUTIVE ORDER WORLD, TO ONE WHERE
THE STATUTE APPLIES IS ONE THAT’S DONE
INTENTIONALLY, AND IT’S A BILATERAL CHOICE. AND THERE’S A TIME
AND PLACE FOR THAT. WHEN THINGS WORK OUT,
PARTIES USUALLY WOULD LIKE TO HAVE THAT CONSENSUS
REDUCED TO WRITING, AND IT CREATES
SOME SETTLED EXPECTATIONS AND– BUT IT’S AN INTENTIONAL
CHOICE THAT PEOPLE MAKE OR THE PARTICIPANTS MAKE
WHEN IT’S THE RIGHT TIME. WE ALSO MAKE SURE THAT
WE ORIENT THE PARTICIPANTS TO THEIR STATUTORY RIGHTS
AND RESPONSIBILITIES, YOU KNOW, THE DUTY
AND SCOPE OF BARGAINING. THERE IS, I THINK,
A FAIR AMOUNT OF EMPHASIS ON GETTING IN TO THE ROOM. PERHAPS, PEOPLE WHO ARE NOT– EXCUSE ME, INTO
THE LABOR-MANAGEMENT FORUMS, WHO MAY NOT PRACTICE
LABOR RELATIONS DAY IN AND DAY OUT. SO WE THINK WE ARE DOING
THE PROCESSES SERVICE BY MAKING SURE THAT
THERE IS A BASIC UNDERSTANDING OF OUR STATUTE, AND
THEN A PARTICULAR UNDERSTANDING OF THE PERMISSIVE AREAS
OF BARGAINING. WE HAVE
A NUMBER OF EXERCISES, HYPOTHETICALS
THAT WE USE. AND IN THAT THE TRAINING
I PARTICIPATED IN JUST AS AN OBSERVER, THERE WAS A VERY LIVELY
DISCUSSION AROUND THIS AREA. I WOULD LIKE TO SHARE
AN ANECDOTE ALONG THOSE LINES IN THE TERMS OF
WHY WOULD THIS PARTICULAR KIND OF BARGAINING BE
IN THE PUBLIC INTEREST? AND IN PARTICULAR, AN AREA
WOULD BE A NEW TECHNOLOGY. A NEW TECHNOLOGY
IS EXPENSIVE. THE DECISION TO BUY
THE NEW TECHNOLOGY IS A BIG ONE, A ONE THAT TAKES
A LOT OF THOUGHT BY NOT ONLY THE AGENCY, BUT WE HAVE
THE INVOLVEMENT OF OMB. SO THE QUESTION IS
WHY NOT INVOLVE THE PEOPLE WHO MIGHT ACTUALLY BE
USING THE TECHNOLOGY BEFORE THE TECHNOLOGY
IS PURCHASED. AND THAT WAS A VERY,
VERY INTERESTING AND FULFILLING KIND
OF DISCUSSION TO HEAR FROM THE PARTICIPANTS
IN THE LAST TRAINING THAT I PARTICIPATED IN, BECAUSE WE REACHED
THAT COMMON GROUND WHICH IS THAT
WE’RE ALL PUBLIC SERVANTS. AND THAT’S WHAT WE’RE HERE TO DO IS TO DO THE WORK
OF THE AMERICAN TAXPAYERS AND BE GOOD STEWARDS
OF THOSE TAX FUNDS. AS YOU CAN SEE
IN THE NEXT GROUPS OF SLIDES, WE PROVIDE SOME PRETTY
MEATY MATERIALS ABOUT WHAT
THE PERMISSIVE AREAS ARE, YOU KNOW, COMPLETE
WITH CASE CITATIONS THAT, YOU KNOW,
YOU ALL AS PROFESSIONALS, CAN USE AND HELP ADVICE THE PEOPLE WHO LOOK TO YOU. AGAIN, THERE’S NO REASON
FOR ME TO GO THROUGH THESE EXCEPT TO INTRODUCE YOU
TO THEM. AND AS I SAID, THE FULL
SET OF SLIDES WILL BE UP. WHAT I INCLUDED HERE ARE
THE ONES THAT I THINK WILL BE, ARE MOST IMPORTANT FOR YOU
TO HAVE AS QUICKLY AS POSSIBLE. WE’LL SEND OUT, BY THE WAY– WE SEND OUT E-MAIL ALERTS
WHEN ANYTHING NEW HAPPENS IN OFFICE OF GENERAL COUNSEL THAT CUSTOMERS
OR THE PUBLIC SHOULD KNOW ABOUT. WE HAVE CREATED
A CONTACT LIST, AN E-MAIL CONTACT LIST, AND IF YOU’RE NOT ON IT,
I WANTED TO SHARE WITH YOU, I WISH I WOULD HAVE
DONE IT IN THE SLIDE, BUT I WANT TO SHARE WITH YOU, IF YOU WOULD LIKE TO BE
ON OUR CONTACT LIST, IF YOU WOULD
JUST SEND AN E-MAIL TO [email protected] OR SEND IT TO ANY ONE OF US, AND WE’LL MAKE SURE THAT YOU GET
ON TO THE CONTACT ALERT LIST. AND THAT WOULD,
FOR EXAMPLE, LET YOU KNOW THIS NEW TRAINING IS POSTED. AS I SAID, THE FLRA TAKES
ON THE RESPONSIBILITY OF INTRODUCING
PRE-DECISIONAL INVOLVEMENT. ALTHOUGH, THAT’S NOT A STATUTORY
RIGHT OR RESPONSIBILITY BECAUSE THAT WHOLE PROCESS HAD GENERATED SOME CONFUSIONS, SOME DISAPPOINTMENT, SOME MISUNDERSTANDINGS, SOME TREPIDATION
ABOUT THIS NEW EXECUTIVE ORDER, WE FELT THAT
IT WAS REALLY IMPORTANT TO TRY TO ABSORB
ALL OF THAT FEEDBACK AND PROVIDE PARTIES WITH SOME WAYS OF THINKING ABOUT
PRE-DECISIONAL INVOLVEMENT, SO THAT THEY COULD AVOID
THE PITFALLS AND TAKE ADVANTAGE
OF THE OPPORTUNITIES. AND THAT IS THE PURPOSE OF THIS PIECE OF THE TRAINING, AND I, YOU KNOW,
PARTICULARLY THINK THAT IT’S INTERESTING. AND WHAT WE TRY TO DO IS,
AGAIN, YOU KNOW, WE KEEP GOING BACK
TO THE CIRCLES THAT I INTRODUCED EARLIER
TO REMIND PEOPLE, YOU KNOW, WHEN YOU’RE IN THE STATUTE
AND WHEN YOU’RE NOT BECAUSE THAT HELPS AVOID,
YOU KNOW, MISUNDERSTANDINGS
AND DISAPPOINTMENTS, YOU KNOW. WHEN YOU’RE OUTSIDE
OF THE STATUTE, THIS IS, YOU KNOW, YOU’RE HERE
BECAUSE YOU WANT TO BE HERE, NOT BECAUSE
YOU HAVE TO BE HERE. YOU’RE AGREEMENT
IS BASED ON CONSENSUS, AND DECIDING TO LEAVE
THAT CIRCLE AND GO INTO
THE STATUTORY CONTEXT, BECAUSE YOU’VE REACHED CONSENSUS AND YOU WOULD LIKE
TO REDUCE THAT CONSENSUS TO A MEMORANDUM
OF UNDERSTANDING, SOMETHING THAT IS
INTENTIONAL AND DELIBERATE. I WANTED TO– YEAH, THIS IS THE PART WHERE– AND I APPRECIATE ANY
FEEDBACK YOU HAVE ON THIS PART OF THE COMMON EXPECTATIONS BECAUSE THIS IS WHERE
OUR TRAINERS TRY TO GET INTO– BRING OUT
PEOPLE’S CONCERNS AND TALK THEM THROUGH, ROLE PLAYING
THE POSSIBILITIES, SO THAT WHEN THEY’RE FACED WITH A PARTICULAR
FORK IN THE ROAD, THEY’LL DECIDE, YOU KNOW, IN A VERY WELL-INFORMED WAY, YOU KNOW, WHICH WAY
THEY WANT TO GO, AND HOPEFULLY, AVOID
SOME OF THE PITFALLS OF BEFORE THAT WE HEARD A LOT ABOUT. YOU KNOW, THE BOTTOM LINE, THIS IS NOTHING NEW
TO ALL OF YOU, BUT THAT THE WHOLE PURPOSE HERE IS TO TRY
TO REALLY FULFILL, THE PURPOSE OF THE STATUTE
THAT ESTABLISHED OUR AGENCY, AND AS TOM REMINDED US, OPM AND THE
MERIT SYSTEM PROTECTION BOARD. BUT THAT, YOU KNOW,
WE ARE HERE TO– AND THE RIGHTS
AND RESPONSIBILITIES THAT ARE GRANTED
UNDER OUR STATUTE, THE MERIT PRINCIPLES
THAT ARE AT THE FOUNDATION AND MERIT SYSTEM
PROTECTION BOARD AND THE WORK AT OPM
IS REALLY ABOUT MAKING THE GOVERNMENT WORK BETTER AND FULFILLING
THAT MISSION AND GOAL THAT WAS SET OUT
BY OUR STATUTE. AND THIS PRE-DECISIONAL
INVOLVEMENT IS, YOU KNOW, IS MEANT TO MAKE ACHIEVING
THAT MISSION EASIER. THAT IS THE PART
OF THE PRESENTATION THAT I WAS GOING TO PROVIDE
TO YOU PERSONALLY, AND I WANTED TO, YOU KNOW, SAY IT ONCE AGAIN,
YOU KNOW, THAT WE REALLY WELCOME AND ENCOURAGE
YOUR FEEDBACK. WHAT WE’RE GOING TO TALK
ABOUT NEXT IS SOME REALLY HARD STUFF. IT’S HARD STUFF FOR US BECAUSE IT GOES TO THE
POINT THAT I WAS MAKING EARLIER IS THAT THE WORK THAT WE DO
IN OFFICE AT GENERAL COUNSEL WHICH IS INVESTIGATING
AND RESOLVING DISPUTES BROUGHT TO US UNDER
THE UNFAIR LABOR PRACTICE CHARGE CONTEXT
OR REPRESENTATION PETITIONS FILED WITH
OUR REGIONAL OFFICES. WE HAVE A STRONG BELIEF. AND, YOU KNOW,
DENNIS AND I SHARE THIS AND WE’RE IN THIS TOGETHER, THAT WE HAVE
TO NOT ONLY PROVIDE QUALITY SERVICES TO YOU, BUT WE HAVE TO SPEED UP
THAT PROCESS. WE NEED TO GET DISPUTES
RESOLVED QUICKLY. YOU NEED TO KNOW ANSWERS. YOU KNOW, IS THIS
AN UNFAIR LABOR PRACTICE OR IS IT NOT? WHAT IS THE NEW BARGAINING
UNIT AFTER THIS REORGANIZATION? YOU NEED TO KNOW THAT
TO GET ON WITH YOUR BUSINESS. AND THE WAY TO DO THAT
IS FOR US TO FIND THE RIGHT PROCESSES AND METRICS AT OUR SHOP
TO GET THAT JOB DONE. SO I’M VERY LUCKY TO HAVE
AS MY PRINCIPAL ADVISOR AND LEADER
IN THIS EFFORT, DENNIS WALSH. AND I’M GONNA TURN
THE PROGRAM IN OVER TO HIM. UH, THANK YOU, JULIE. WHAT I AM GONNA TALK ABOUT IS WHAT WE ARE
IN THE PROCESS OF DOING TO, UH, SO THAT WE CAN DO
ALL THE THINGS THAT JULIE JUST DESCRIBED
BETTER AND FASTER. I COME FROM
A 20 YEARS EXPERIENCE AT A MUCH LARGER AGENCY THAT DOES MUCH
OF THE SAME THING THAT WE DO, ONLY DOES IT FOR
THE PRIVATE SECTOR, THE NLRB. AND THEY HAVE, ACTUALLY,
75 YEARS NOW OF EXPERIENCE IN ADMINISTRATING
A VERY SIMILAR STATUTE AT A LARGER SCALE. AND SO THEY’VE HAD
A LOT OF YEARS TO DEVELOP EFFICIENCIES
AND DEVELOP QUALITY WAYS OF INVESTIGATING CASES,
BOTH IN THE REPRESENTATION OF UNFAIR LABOR PRACTICE AREA. AND SO, I HOPE TO BRING
SOME OF WHAT I LEARNED THERE TO THIS AGENCY AND COMBINE
WITH THE EXPERIENCE AND THE WISDOM
OF THE PEOPLE AT THIS AGENCY TO DEVELOP
SOME WAYS OF DOING THINGS, SO THAT WE CAN DO THINGS BOTH FASTER AND BETTER. SO THAT’S WHAT
I’M GONNA TALK ABOUT. BUT FIRST, WE NEED TO TALK
ABOUT A LITTLE BIT OF HISTORY. THE FIRST THING
THAT JULIE WAS FACED WITH WHEN SHE CAME ONBOARD
LAST AUGUST WAS PRETTY SERIOUS
STAFFING ISSUES AT THE FLRA. WE HAVE SEVEN REGIONAL OFFICES WHICH REALLY DO THE WORK OF THE OFFICE
OF GENERAL COUNSEL. THEY ARE, UM, WELL,
THEY’RE LISTED ON THE WEBSITE, BUT THEY’RE IN ATLANTA,
BOSTON, DALLAS, DENVER, CHICAGO, SAN FRANCISCO, AND, OF COURSE,
WE HAVE AN OFFICE HERE IN WASHINGTON. EACH OF THESE REGIONAL
OFFICES AS LATE AS 2003, WE’RE STAFFED
WITH ONE SES REGIONAL DIRECTOR, A GS-15 MANAGER,
AND 15 PROFESSIONALS, BOTH ATTORNEYS
AND NON-ATTORNEY PROFESSIONALS TO INVESTIGATE CASES
OF BOTH UNFAIR LABOR PRACTICE, AND ALSO TO INVESTIGATE
AND TO LITIGATE THEM, UNFAIR LABOR PRACTICE
AND REPRESENTATION CASES. THE PRESENT SITUATION IS WE STILL HAVE
THE SEVEN REGIONAL OFFICES, BUT ONLY THREE OF THEM
CURRENTLY HAVE RDs, REGIONAL DIRECTORS
WHO ARE SES. AND ONLY TWO OF THEM
HAVE A SECOND GS-15 MANAGERS. THE OTHER
FOUR REGIONAL DIRECTORS ARE AT THE GS-15 LEVEL AND TWO ARE,
AT FOR AN EXTENDED PERIOD TIME, HAVE BEEN ACTING
REGIONAL DIRECTORS. AND IN ADDITION, NO LONGER
DO WE HAVE 15 PROFESSIONALS IN ANY OF OUR OFFICES. WE HAVE ANYWHERE
BETWEEN FIVE AND EIGHT. ACTUALLY, WHEN I CAME
ONBOARD IN DECEMBER, THE WASHINGTON OFFICE,
AS YOU CAN IMAGINE IS AMONG OUR BUSIEST OFFICES, HAD ONLY THREE PROFESSIONALS, A REGIONAL DIRECTOR,
WHO HAVE JUST RETIRED, AND THREE PROFESSIONALS TOTAL. SO WE WERE FACED
WITH A PRETTY DIRE SITUATION IN TERMS OF STAFFING. WE HAVE SINCE– WE DO HAVE A REGIONAL
DIRECTOR IN WASHINGTON NOW. WE HAVE ADDED
THREE PROFESSIONALS, WE HAVE FIVE PROFESSIONALS AND AN ACTING
GS-15 MANAGER THERE. SO THIS IS
AN AGENCY NATIONWIDE THAT HANDLES OVER 4,000
UNFAIR LABOR PRACTICE CHARGES AND AROUND 300 REPRESENTATION
PETITION EACH YEAR. AND SO OUR JOB HAS BEEN
TO TRY TO BUILD UP THE STAFFING, SO THAT WE CAN DO
OUR JOB BETTER AND FASTER. BUT, OF COURSE,
LIKE ALL OF YOUR AGENCIES, OUR BUDGET LIMITS US, AND IT HAS ALLOWED ONLY
FOR A VERY LIMITED HIRING. WE WERE ABLE TO ADD
THE THREE POSITIONS IN WASHINGTON THIS YEAR, AND WE’LL HAVE
TWO MORE POSITIONS TO ADD NEXT YEAR NATIONWIDE, SO THAT’S THE LIMIT
AT THIS POINT OF WHAT WE CAN DO TO HIRE. ALTHOUGH,
WE ARE WORKING AND FIGHTING FOR EVERY PENNY WE CAN GET
TO INCREASE OUR STAFFING. BUT THE BOTTOM LINE
IS THAT WE ARE ASKING OUR REGIONAL OFFICES
TO DO A LOT MORE WITH LESS. AND THAT’S WHAT I WANT
TO TALK ABOUT NOW. THE NEXT TWO SLIDES
ARE GONNA SHOW YOU A LITTLE BIT ABOUT
WHAT OUR PROFESSIONALS ARE FACED WITH
IN TERMS OF WORKLOAD. THE FIRST SLIDE
SHOWS FILINGS. IN OTHER WORDS, HOW
MANY CASES ARE FILED EACH YEAR COMPARED TO HOW MANY AGENTS
WE HAVE TO INVESTIGATE AND LITIGATE THEM? AND THIS IS OVER
THE COURSE OF 2001-2010. SO AS YOU CAN SEE,
WE ARE NOW, WE’RE PROJECTING FOR 2010 A TOTAL NUMBER OF CASES
FILED OF ABOUT 4,500 AND WE PRESENTLY
HAVE 42 AGENTS, WHICH MEANS THAT
EACH OF OUR AGENTS IS RESPONSIBLE FOR 108
OF THOSE CASES. NOW THAT DOESN’T MEAN
THAT AN AGENT HAS 108 CASES AT ANY ONE TIME, BUT OVER
THE COURSE OF THE YEAR. ON AVERAGE, EACH OF THOSE
AGENTS IS GONNA BE RESPONSIBLE FOR 108 CASES. THAT AS COMPARED TO IN 2001,
THE CASES TO AGENT RATIO WAS 85 CASES FILED PER AGENT. AND IN TERMS
OF CURRENT WORKLOAD WHAT OUR AGENTS ARE HANDLING
AT ANY GIVEN TIME, WE CHOSE A DATE
OF APRIL 30th TO TAKE A SNAPSHOT
EACH YEAR OF BETWEEN 2001 AND 2010. A SNAPSHOT OF HOW MANY CASES
WERE ACTUALLY PENDING IN OUR REGIONAL OFFICES. AND AS YOU CAN SEE– AND THEN, WE CAME TO A RATIO
OF HOW MANY CASES EACH AGENT ON AVERAGE IS HANDLING. AS YOU CAN SEE
BETWEEN 2001 AND 2010, THAT HAS INCREASED
FROM 29 CURRENT CASES PER AGENT TO 45 CURRENT CASES
PER AGENT. THAT’S JUST AS A SNAPSHOT
AS OF APRIL 30th. NOW THERE WAS A SPIKE IN
FILINGS BETWEEN 2006 AND 2007, SO YOU CAN SEE
THAT AT ONE TIME, AGENTS WERE ACTUALLY
HANDLING 61 CASES APIECE. NOW THIS 45 CASE PER AGENT
IS OBVIOUSLY JUST AN AVERAGE. WE HAVE SOME AGENTS
HANDLING MORE, SOME HANDLING LESS,
SOME AGENTS ARE HANDLING AS MANY AS 50 AND 60 CASES
AT A TIME. THIS INCLUDES INVESTIGATIONS OF UNFAIR LABOR
PRACTICE CHARGES, INVESTIGATIONS AND HEARINGS AND REPRESENTATION CASE
HEARINGS, UH, CASES, AND ALSO LITIGATING
UNFAIR LABOR PRACTICE CHARGES. THE ATTORNEYS ACTUALLY
TAKE THEM TO TRIAL BEFORE ADMINISTRATIVE
LAW JUDGES, SO THAT 45 CASES INCLUDES
CASES WHICH ARE BEING LITIGATED, WHICH OBVIOUSLY TAKE QUITE
A BIT OF RESOURCES AND TIME. NOW, AS A REFERENCE POINT, WHAT I LIKE TO USE
AS REFERENCE POINT IS THE AGENCY
THAT I CAME FROM, THE NATIONAL LABOR
RELATIONS BOARD. THEY MAINTAIN
THEIR STAFFING AT A LEVEL, SO THAT AGENTS
ARE HANDLING, ON AVERAGE, SIX TO EIGHT CASES
AT ANY ONE TIME. NOW SOME OF THEIR BUSIER
OFFICES, LIKE IN NEW YORK, THEY MAY HANDLE AS MANY
AS 13 OR 14 AT ANY GIVEN TIME, BUT THAT’S REALLY
KIND OF A MAXIMUM. SO THAT’S A REFERENCE POINT. THEY’RE VERY SIMILAR
TO THE TYPES OF CASES WE HANDLE. OUR CASES MAYBE ON AVERAGE A LITTLE LESS COMPLEX
THAN THEIRS, BUT STILL, A COMPARISON
OF SIX TO EIGHT CASES PER PROFESSIONAL TO 45 ON AVERAGE
FOR OUR PROFESSIONALS, SHOWS YOU JUST WHAT KIND
OF A WORKLOAD THAT WE’RE ASKING
OUR PEOPLE TO HANDLE. AND I WANT TO EMPHASIZE
THAT THEY ARE HANDLING IT, THAT THEY ARE PROFESSIONALS, AND THEY’RE DOING
THE VERY BEST THEY CAN. BUT IT IS A MAJOR TASK
THAT WE’RE ASKING THEM TO DO. NOW IN TERMS OF PRIME
TARGETS THAT JULIE MENTIONED, IT USED TO BE– WHEN THE FLRA
WAS ESTABLISHED BACK IN 1978 OR ’79, THEY PATTERNED– THERE WAS THIS SISTER AGENCY
THE NLRB THAT HAD BEEN IN PLACE FOR SEVERAL DECADES, SO THEY PATTERNED
THEIR TIMED TARGETS AFTER WHAT THE NLRB WAS DOING
IN THE PRIVATE SECTOR. SO AT THAT TIME, THE
TIME TARGET FOR INVESTIGATING AN UNFAIR LABOR PRACTICE CASE WAS SIMILAR TO WHAT THE NLRB
HAD WHICH WAS ABOUT 60 DAYS. NOW THAT– WHAT WE’RE TALKING
ABOUT IN TERMS OF TIME TARGET IS YOU GET A CHARGE AND
YOU’RE ASKED TO INVESTIGATE IT. AND THE REGIONAL
DIRECTOR THEN MAKES THE DECISION WHETHER TO ISSUE A COMPLAIN
AND GO TO A HEARING OR NOT. SO IT’S FROM THE DATE
OF THE CHARGE TO THE DATE THAT THE DECISION
IS MADE WHETHER TO, UH, DISMISS THE CASE
OR TO GO TO HEARING. SO IT USED TO BE– WE WERE ASKING THEM
TO SHOOT FOR 60 DAYS. AND IN TERMS
OF REPRESENTATION CASES, IT’S THE, UH– WE MEASURE THAT FROM
THE DATE YOU GET TO THE PETITION UNTIL SOME KIND OF A DECISION
IS MADE ON THE CASE. WHETHER WE’RE GONNA GO
TO AN ELECTION OR WHETHER WE’RE GONNA HAVE
A STIPULATED AGREEMENT. AND THAT USED TO BE 30 DAYS
WAS WHAT WE WE’RE ASKING. BECAUSE OF THE STAFFING SLIPPAGE AND THE STAFFING SITUATION, THE TARGETS HAVE SLIPPED. INSTEAD OF INCREASING STAFFING, WHAT THE AGENCY HAS DONE
OVER THIS LAST 8 OR 10 YEARS, INSTEAD OF INCREASING STAFFING,
THEY INCREASED THE TIME TARGETS. AND SO NOW, IN BOTH
UNFAIR LABOR PRACTICE CASES AND IN REPRESENTATION CASES, OUR TIME TARGET IS 120 DAYS. THAT’S FROM RECEIVING THE CHARGE OR THE PETITION TO MAKING A DECISION ON IT
IS 120 DAYS. AND CURRENTLY,
WE’RE ONLY MEETING THAT TIME TARGET
IN ABOUT 48% OF THE CASES FOR UNFAIR LABOR
PRACTICE CASES. AND I THINK THE NUMBER
IS ABOUT 65% FOR REPRESENTATION CASES. SO IN MY PERSONAL OPINION, I THINK A 120 DAYS IS TOO LONG AS A TIME TARGET
IN TERMS OF DECIDING A CASE BECAUSE THAT’S THE TIME
WHEN THE PARTIES DON’T KNOW WHAT THEIR RIGHTS
AND OBLIGATIONS ARE WITH REGARD
TO WHATEVER DISPUTE IT IS THAT BROUGHT THEM TO US. AND SO THAT’S A 120 DAYS
THAT EVERYBODY ON ALL SIDES IS WAITING FOR AN ANSWER. AND IN MY OWN OPINION,
I THINK, EVEN THAT IS TOO LONG. BUT UNFORTUNATELY,
WE’RE NOT CURRENTLY, WE’RE NOT EVEN DOING THAT WELL. AGAIN, IN TERMS
OF COMPARISON AT THE NLRB, THE CASES ARE PRIORITIZED. THERE ARE CATEGORIES OF
CASES THAT THE AGENTS ARE TOLD TO HAVE DIFFERENT
TIME TARGETS FOR. SO THERE ARE A LOT CASES
THAT ARE A HIGHER IMPACT OR MORE IMPORTANT
THAT THE BOARD HAS DETERMINED, IT’S MORE IMPORTANT
OR HIGHER IMPACT AND THERE ARE CASES
THAT ARE LOWER IMPACT. SO THERE ARE
THREE TIERS OF CASES. FOR THE HIGHEST PRIORITY CASES, THEIR TIME TARGET IS 49 DAYS AND IT GOES UP FROM THERE. THE SECOND PRIORITY
IS 63 DAYS, LOWEST PRIORITY, 114 DAYS. THE VAST MAJORITY OF THEIR CASES
ARE IN THE FIRST TWO CATEGORIES EITHER THE HIGH PRIORITY
OR THE SECOND PRIORITY. SO AT MOST,
MOST OF THEIR CASES, THEY ARE MEETING THEIR
TIME TARGETS, TOO, USUALLY. THERE ARE ONLY TAKING 63 DAYS
TO MAKE A DECISION AS SUPPOSED
TO OUR 120-DAY TARGET WHICH UNFORTUNATELY, IN MANY CASES,
WE AREN’T MEETING. IN TERMS OF WHAT
WE’RE DOING ABOUT THIS, THE TECHNOLOGY
IS GONNA HELP QUITE A BIT, IT HAS ALREADY STARTED
HELPING QUITE A BIT. WE ARE INSTITUTING E-FILING. IN OTHER WORDS, WERE GOING
TO MAKE IT POSSIBLE FOR PARTIES TO FILE CHARGES, BRIEFS, PETITIONS, APPEALS, PRETTY MUCH EVERYTHING
ELECTRONICALLY. OUR TECH PEOPLE
ARE WORKING ON THAT NOW. THAT SHOULD BE IN PLACE
BY THE END OF THIS YEAR. THAT’S THE TARGET, I BELIEVE, IS ACTUALLY,
FALL IS THE TARGET. IN ELECTIONS
AND REPRESENTATION CASES, WE ARE BEGINNING TO USE WHAT WE’RE CALLING
REMOTE ACCESS VOTING. IN OTHER WORDS INSTEAD
OF BRINGING A BALLOT BOX AND BALLOTS TO YOUR PLACE
OR DOING IT BY MAIL. USUALLY THIS REPLACES
MAIL BALLOT VOTING BECAUSE OFTEN THE– WE ARE STILL DOING
THE MANUAL BALLOTS BRINGING THE BALLOT BOX. BUT INSTEAD
OF MAILING OUT BALLOTS THROUGH THE POSTAL SERVICE, IN SOME CASES NOW,
WE ARE BEGINNING TO USE WHAT’S CALLED
REMOTE ACCESS VOTING. IN OTHER WORDS,
ALLOWING THE EMPLOYEES TO VOTE EITHER BY PHONE
OR BY INTERNET. THIS IS SOMETHING
THAT WE’RE ACTUALLY AHEAD OF THE NLRB. THEY HAVEN’T EVEN
STARTED DOING THIS, BUT THE NATIONAL MEDIATION BOARD
FOR RAILWAY AND AIRLINE ELECTION HAS BEEN DOING THIS
FOR A FEW YEARS AND WE’RE BEGINNING
TO DO THIS OURSELVES. WE’VE DONE IT KIND OF
A PROTOTYPE OR PILOT BASIS IN TWO OR THREE ELECTIONS AND WE’RE GONNA BE
DOING MORE OF IT. IT’S MORE EFFICIENT FOR US. IT SAVES TIME
AND IT SAVES MONEY, AND IT’S ACTUALLY MUCH MORE
EFFICIENT FOR PARTIES AS WELL THAN MAIL BALLOT VOTING. ANOTHER TECHNOLOGY ASSISTING, SOMETHING THAT’S GONNA ASSIST
US IN TERMS OF OUR INVESTIGATING AND PROCESSING CASES
OUR WEB-BASED CONFERENCES. WE’RE GONNA START DOING THAT
FOR REPRESENTATION CASES IN TERMS OF
PRE-HEARING CONFERENCES AND CONFERENCES
WITH THE PARTIES TO FACILITATE STIPULATIONS. WE’LL BE DOING IT
OVER THE PHONE AND OVER THE WEB. THIS WILL HELP
A SETTLEMENT CONFERENCES AND UNFAIR LABOR
PRACTICE CASES, AND ALSO PRE-HEARING MEETINGS
IF THE CASES ARE LITIGATED. AND AT THE VIDEO TECHNOLOGY
IS ALSO GOING TO HELP US, IS BEGINNING TO HELP US
ON REPRESENTATION CASE HEARINGS BECAUSE INSTEAD
OF SENDING OUR AGENTS OUT INTO THE FIELD
TO CONDUCT HEARING, WE CAN DO THEM
BY VIDEO AS WELL. SO TECHNOLOGY
IS BEGINNING TO HELP AND IT’S GONNA CONTINUE
TO HELP US TO BECOME MORE EFFICIENT. BUT WE DO NEED TO LOOK
AT ALL OF OUR CASE PROCESSES AND WE ARE
IN THE PROCESS OF DOING THAT. THE FIRST STEP WAS TO INTEGRATE
ALTERNATIVE DISPUTE RESOLUTION INTO ALL ASPECTS
OF OUR CASE PROCESSES. THAT’S FROM BEGINNING TO END
IN UNFAIR LABOR PRACTICE AS WELL AS REPRESENTATION CASES. THIS NECESSITATED,
ACTUALLY AMENDING OUR UNFAIR LABOR PRACTICE
REGULATIONS EARLIER THIS YEAR BECAUSE WHEN WE CAME ON BOARD, THE SITUATION WAS THAT
ALL REFERENCES TO ACTUALLY SETTLING CASES HAD BEEN REMOVED
FROM THE REGULATIONS INVOLVING INVESTIGATING
UNFAIR LABOR PRACTICE CASES. THIS HAD BEEN DONE
A FEW YEARS AGO, I DON’T RECALL
EXACTLY WHEN, BUT THIS WAS THE SITUATION
OUR AGENTS WERE ACTUALLY TOLD. AND BY REGULATION,
WE’RE TOLD– WE DON’T REALLY EXPECT YOU
TO SETTLE A CASES, THAT’S NOT YOUR JOB,
YOUR JOB IS TO INVESTIGATE AND DECIDE
WHETHER THERE’S, UH– TO HELP US DECIDE
IF THERE’S A VIOLATION OR NOT. THAT’S NOT OUR VIEW OF IT. OUR VIEW AND JULIE’S VIEW
IS THAT DISPUTE RESOLUTION IS AN INTEGRAL PART
OF WHAT WE DO AT ALL PHASES
OF WHAT WE DO BECAUSE IT MAKES US
MORE EFFICIENT AND IN THE LONG RUN, HELPS THE EFFICIENCY
OF GOVERNMENT AGENCIES AS WELL IN OUR VIEW. SO WE ACTUALLY AMENDED
THE REGULATIONS AS OF APRIL 1st AND THERE ARE NOW
SEVERAL REFERENCES IN THE UNFAIR LABOR
PRACTICE REGULATIONS TO ENCOURAGING
THE SETTLEMENT OF CASES. NOW THIS IS– IF THIS IS
WHAT PARTIES WANT TO DO. BUT OUR AGENTS ARE ENCOURAGED
TO HELP THE PARTIES TO SETTLE THEIR CASES
AND THEIR DISPUTES IF THAT’S WHAT THEY
INDICATE THAT THEY WANT TO DO. AND IN FACT, IN FACT, THE REGULATION SAY
THAT THIS IS POSSIBLE FOR AGENTS TO DO THIS
EVEN BEFORE A CHARGE IS FILED. IF A PARTY IS TO CALL,
IT CALLS A REGIONAL OFFICE AND SAYS, “LOOK, WE’RE
THINKING ABOUT FILING A CHARGE, BUT COULD YOU HELP US
JUST RESOLVE THIS DISPUTE?” OUR AGENTS WILL BE
AVAILABLE TO DO THAT, BUT THEY ARE ENCOURAGED
THROUGHOUT THE PROCESS AFTER A CHARGE
IS FILED AS WELL TO HELP THE PARTIES
TO SETTLE THEIR DISPUTES. AND NOW OUR AGENTS,
THEY DON’T COME TO US AS TRAINED MEDIATORS
THAT’S NOT, YOU KNOW, WHAT THEY COME TO US, MOST OF THEM COME
FROM LAW SCHOOL OR PROFESSIONAL SCHOOLS, BUT WE HAVE PROVIDED
TO THEM THIS YEAR, TRAINING IN PROBLEM SOLVING INTEREST-BASED ALTERNATIVE
DISPUTE RESOLUTION TECHNIQUES. WE HAVE, OF COURSE,
AVAILABLE TO US, MANY TRAINED MEDIATORS, WHO ARE ON THE
FEDERAL SERVICES IMPASSES PANEL. AND SO WE ENLISTED
A COUPLE OF THEM TO ACTUALLY GO AROUND
THE COUNTRY AND TRAIN ALL OF OUR AGENTS THROUGHOUT OUR REGIONS
IN THESE TECHNIQUES. AND THEY ARE ENCOURAGED
AND ASKED TO INTEGRATE THEM THROUGHOUT THE PROCESS
OF INVESTIGATING CASES IF THIS IS WHAT
THE PARTIES WANT. AND SO DISPUTE RESOLUTION
IS A PART OF WHAT WE DO. BUT SECONDLY, WHAT WE ARE NOW
IN THE PROCESS OF DOING IS LOOKING
AT OUR INVESTIGATING, OUR INVESTIGATIVE PROCESSES AND OUR REPRESENTATION CASE
PROCESSES FROM TOP TO BOTTOM. WE DO HAVE
A LOT OF EXPERIENCE OUT ON THE REGIONAL OFFICES, WE ARE GETTING THAT EXPERIENCE
THOSE PEOPLE TOGETHER, BOTH MANAGEMENT
AND FRONTLINE INVESTIGATORS. WE’RE GONNA GET THEM
TOGETHER, WE’RE GONNA SIT DOWN, AND, WELL, WE’RE IN
THE PROCESS OF DOING THIS NOW. JUST LOOKING AT THE PROCESS
FROM BEGINNING TO END AND SEEING
WHAT PART OF THE SYSTEM THAT WE CAN WORK ON
TO MAKE IT MORE EFFICIENT AND TO REDUCE
OUR CASE PROCESSING TIME. IT’S GONNA TAKE
A LITTLE BIT OF TIME, BUT THIS IS– WE FEEL TIME
THAT’S WELL INVESTED TO SHORTEN OUR TIME TARGETS. AND TO ENSURE THAT WE CAN MEET
THOSE TIME TARGETS THAT WE SET. SO THAT’S AN EFFORT
THAT I’M WORKING ON AND JULIE’S WORKING ON. WE’RE WORKING ON
WITH THE EXPERIENCE PEOPLE IN OUR REGIONS. IN THE PROCESS,
I WANT TO EMPHASIZE THAT THERE’S ALWAYS A BALANCE BETWEEN TIMELINESS
AND QUALITY. AND WE DON’T INTEND
TO GIVE SHORT THRIFT TO EITHER OF THOSE QUALITIES. WE WANT OUR INVESTIGATIONS
TO BE DONE THOROUGHLY AND IN A QUALITY MANNER
AS WELL AS IN A TIMELY MANNER. SO, UM, WE’RE GONNA LOOK
AT HOW WE CAN IMPROVE THE QUALITY
OF OUR INVESTIGATIONS AS WELL WITH QUALITY
AND THE THOROUGHNESS. AND IN THAT CONNECTION, WE ARE REGIONS– WE USE TO HAVE MUCH MORE OF A KIND OF
A QUALITY ASSURANCE SYSTEM WHERE WE LOOK AT
INVESTIGATIONS THAT WERE DONE, AND ON A KIND
OF A RANDOM BASIS TO ENSURE THAT THEY WERE DONE
ON A QUALITY MANNER, AND WE’RE REINSTITUTING THAT, AND WE’RE GONNA BE
DOING THAT AS WELL. IN THE PROCESS OF THIS, UH, WHOLE PROCESS OF LOOKING
AT OUR INVESTIGATIVE PROCESS. WE WANT TO BE OPEN
TO SUGGESTIONS FROM YOU AND FROM ALL PARTIES, YOU KNOW, ALL OF OUR STAKEHOLDERS
AND CUSTOMERS, AND SO TO SPEAK, ON HOW WE CAN IMPROVE IT. AND ONE OF THE THINGS
THAT I KNOW THAT I WANT TO LOOK AT IS, IS IT POSSIBLE FOR US
TO INSTITUTE SOMETHING, LIKE THE NLRB HAS, AND PRIORITIZE OUR CASES AND GIVE SHORTER TIME TARGETS
TO HIGHER IMPACT CASES. NOW IN ORDER TO DO THAT, OBVIOUSLY, WE HAVE
TO BEGIN TO THINK ABOUT IDENTIFYING
HOW WE MAKE THOSE CATEGORIES, AND HOW WE IDENTIFY, WHAT ARE THE MORE IMPORTANT
THAN HIGHER IMPACT CASES AND WE ARE GOING TO NEED
INPUT FROM YOU AND FROM ALL SIDES
AND ALL PARTIES TO MAKE THAT DETERMINATION. BUT WE, ALSO, ARE OPEN
TO SUGGESTION FROM EVERYONE ON HOW TO BETTER IMPROVE
OUR CASE PROCESSES. WE HAVE DEVELOPED
A KIND OF A TOP 10 LIST OF WAYS THAT PARTY CAN HELP US
TO IMPROVE OUR CASE PROCESSING, AND WE DIDN’T INCLUDE
THAT IN THE POWERPOINT, BUT IF YOU CONTACT ANY OF US, WE WOULD BE GLAD TO PROVIDE THAT TOP 10 LIST
OF SUGGESTIONS FOR YOU AS WELL. SO ANYWAY, THAT’S MY PART
OF OUR PRESENTATION. WHEN WE GET
TO THE END OF THE QUESTIONS, I’D LOVE TO HEAR
ANY OF YOUR SUGGESTIONS OR QUESTIONS
ON WHAT WE’RE DOING. BUT, UH, THIS IS
VERY IMPORTANT TO US TO MOVE AHEAD AND
TO IMPROVE OUR CASE PROCESSING TO DO IT BETTER
AND TO DO IT FASTER. MY NAME IS RICHARD ZORN
AS I’VE ALREADY BEEN INTRODUCED. AND BEFORE I GET INTO
THE PRESENTATION ABOUT CASE LAW, I JUST WANTED TO COVER
A FEW OTHER MATTERS. JULIE MENTIONED THAT
ONE OF MY RESPONSIBILITIES IS THE MANAGER
OF THE OGC WEBSITE. YOU CAN HELP ME MANAGE
THE WEBSITE EVEN BETTER. FIRST OF ALL,
IF YOU HAVE ANY SUGGESTIONS OR IF YOU FIND
THERE’S A BROKEN LINK OR ANYTHING RELATING
TO THE OGC’S PORTION OF THE WEBSITE
AT THE FLRA.GOV, SEND ME AN E-MAIL. MY E-MAIL ADDRESS
IS [email protected] ALSO, IF THERE’S ANYTHING
ABOUT THE PRESENTATION AND THE CASES
THAT I’M GOING TO DISCUSS, AND YOU HAVE AFTERWARDS, FEEL FREE TO SEND ME
AN E-MAIL ABOUT THAT. BEFORE I START
WITH THE SLIDES, I DO WANT YOU– FOR THOSE
OF YOU WHO HAVE THE HANDOUTS, THERE IS A CORRECTION TO SLIDE, IT’S EITHER 44 OR 45. YOU’LL SEE A CASE SITE
TO A PAGE 357, IT’S 337. IT’S PAGE 45. IT’S THE CITATIONS
AT THE BOTTOM OF THE PAGE. NOW WHAT I’VE TRIED TO DO
WITH THE CASES THAT I’VE COME WITH IS, I KNOW THE AUDIENCE
THAT I’M PRESENTING BEFORE, SO I TRIED TO PICK NEW CASES THAT MIGHT BE
OF INTEREST TO YOU. REMEMBER AS JULIE SAID, WE HAVE INDEPENDENT COMPONENTS
AT THE FLRA. THE THREE MEMBER AUTHORITY
IS AN INDEPENDENT COMPONENT AND THE OGC IS
AN INDEPENDENT COMPONENT. SO I’M HERE TO TRY
AND DISCUSS CASE LAW FROM AUGUST OF LAST YEAR
THROUGH THE PRESENT. I CAN’T ENTERTAIN
HYPOTHETICALS BECAUSE THAT WOULD
HAVE TO GO BEFORE THE AUTHORITY. BUT I’M HOPING TO PROVIDE ENOUGH INFORMATION FOR YOU
ABOUT THE CASE, SO THAT YOU CAN DETERMINE
IF YOU HAVE SOMETHING CURRENTLY THAT YOU’RE HANDLING,
THAT THE CASE MAYBE RELEVANT, OR WHEN YOU GO BACK
TO YOUR OFFICE AND, YOU KNOW,
A MONTH OR TWO FROM NOW, YOU OPEN YOUR DRAWER
AND YOU SEE THE SLIDES, MAYBE YOU’LL BE ABLE
TO REMEMBER THE CASE, SO THAT YOU DON’T HAVE
TO PLOW THROUGH. I’VE PLOWED THROUGH
THE CASES FOR YOU. YOU CAN WRITE NOTES
ABOUT THE CASE. AND HOPEFULLY,
WHEN YOU NEED IT, YOU’LL UNDERSTAND IT BETTER. I’VE TRIED TO TITLE
THESE SLIDES. I MEAN, I’VE BEEN
IN YOUR SITUATION MANY TIMES, AND THE MOST VALUABLE THING
FOR ME ABOUT A CONFERENCE IS WHAT I CAN TAKE
BACK THE SLIDES. SO I’VE TRIED
WITH THESE SLIDES TO PUT A TITLE
AT THE TOP OF THE SLIDES THE SUBJECT MATTER
OR THE ISSUE. AND WHAT I’LL DO HERE
IS I’LL GIVE YOU SOME CONTEXT, SOME OF THE FACTS
SURROUNDING THAT ISSUE. BUT I’M NOT GOING TO
BE READING EACH SLIDE FOR YOU. MOST OF THE CASES ARE REP, AND MOST OF THE CASES
ARE ULP CASES. THERE’S A COUPLE IN HERE, I THINK THERE’S
AN A… CASE AND AN… CASE, BUT THEY INVOLVE ISSUES
THAT I’M SURE YOU’VE DEALT WITH. OKAY, WITHOUT FURTHER ADO– ACTUALLY, LET ME BACK UP
ONE SECOND. I FORGOT TO TELL YOU
ONE LAST THING, I WILL GIVE YOU A COUPLE
OF TIPS ABOUT CERTAIN THINGS AS WE GET TO THE SLIDES, AND I’M ALSO GOING TO OPEN
THE PRESENTATION WITH A BONUS CASE. I SAID BONUS CASE
BECAUSE THE SLIDES WERE PREPARED LAST WEEK, I THINK,
WE SENT THE SLIDES OVER, AND THIS DECISION
JUST ISSUED ON FRIDAY. BUT I DO BELIEVE
IT WOULD BE OF INTEREST TO YOU. SO YOU DON’T HAVE A SLIDE,
I WILL GIVE YOU THE CITATION. THE CITATION IS 64 FLRA, NUMBER 158. THAT’S NUMBER 158.
THAT’S NOT PAGE 158. AS OF YESTERDAY, IF YOU GO TO OUR
DECISIONS PAGE ON THE WEBSITE, IT WAS THE FIRST
DECISION LISTED. AND THIS CASE INVOLVE– AN EMPLOYEE FILED
AN EEO COMPLAINT AND WAS VERY CLEAR
FROM THE GET-GO THAT HE DID NOT WANT
UNION REPRESENTATION. A MEDIATION SESSION OCCURRED AND THE UNION
WAS NOT NOTIFIED ABOUT THE MEDIATION SESSION, SO THE UNION FILED A CHARGE. THE AUTHORITY FOUND
A VIOLATION IN THIS CASE AND DISCUSSED
AT A FAIR LENGTH THE DC CIRCUIT’S DECISION
IN DOVER AIR FORCE BASE, WHERE THE COURT FOUND
NO INHERENT CONFLICT BETWEEN
AN EEO COMPLAINANT’S RIGHTS AND THE UNION’S RIGHTS
TO ATTEND A FORMAL DISCUSSION. IN DICTA IN THAT CASE, THOUGH, THEY DID SUGGEST THAT
IF THERE WAS A DIRECT CONFLICT, IT WOULD BE RESOLVED
IN FAVOR OF THE EMPLOYEE. IN THIS CASE, THE AUTHORITY
LOOKED AT THE FACTS OF THE CASE AND ALTHOUGH
THE EMPLOYEE OBJECTED, TO THE UNION’S PRESENCE, THERE WAS NO
DIRECT CONFLICT THAT WAS RAISED, SO IT WAS NOT SUFFICIENT
TO DEPRIVE THE UNION OF ITS RIGHT
TO ATTEND MEDIATION SESSION. SO IF SOMETHING COMES UP
ALONG THESE LINES, YOU HAVE THIS CASE HERE. AGAIN, YOU KNOW,
DIFFERENT FACTS MAY RESULT
IN A DIFFERENT OUTCOME. THE FIRST CASE, ACTUALLY,
THE SECOND CASE NOW, THAT I WANT TO TALK TO
INVOLVE THE– TALK ABOUT IS THE– A CASE INVOLVING AFGE
AND THE SSA. THE SSA ALLEGED FAILURE
TO BARGAIN IN GOOD FAITH REGARDING THE RELOCATION OF, WAS IT REGIONAL
QUALITY ASSURANCE OFFICE, AND THE OTHER
WAS A FIELD OFFICE. THEY HAVE A NATIONWIDE UNIT
AND A NATIONWIDE AGREEMENT. AND THEY HAVE AN ARTICLE 9, WHICH CONCERNS
HEALTH AND SAFETY. IN SECTION 20,
CONCERNS MOVES, EXPANSIONS, RELOCATIONS,
AND RENOVATIONS. REGARDING THE RELOCATION, ACTUALLY, THE RELOCATIONS
WERE VERY SIMILAR. THE ACTIVITY WAS WILLING TO
NEGOTIATE OVER THE FLOOR PLAN, BUT THEY THOUGHT
THEY HAD NO DUTY TO BARGAIN OVER ANYTHING ELSE AS IT WAS COVERED
BY THE NATIONAL AGREEMENT. THE UNION, IN TURN,
WANTED TO NEGOTIATE AN MOU. THE ACTIVITY SAID, NO. FIVE OF THE ARTICLES
ARE ALREADY COVERED IN THE NATIONAL AGREEMENT. THE ACTIVITY OFFERED
A VERSION THAT CONTAIN
MANY OF THE REVISIONS. AT ONE POINT, THE
UNION ABANDONED ITS INSISTENCE ON THE MOU. THEY MADE AN EXCHANGE, AND IT WENT TO MEDIATION. THEN THE UNION CHIEF NEGOTIATOR SAID “NO, WE REALLY DO
WANT AN MOU.” AND THE AGENCY SAID, “WE’RE MAKING
OUR LAST BEST OFFER, WE’RE GOING TO IMPLEMENT.” THE UNION REQUESTED
PANEL ASSISTANCE, BUT THE PANEL DECLINED
TO TAKE THE CASE, A CHARGE AGAINST
THE ACTIVITY, FILED A CHARGE
AGAINST THE ACTIVITY, AND THE ACTIVITY FILED
A CHARGE AGAINST THE UNION. THE SAME KIND
OF SCENARIO TOOK PLACE WITH THE REGIONAL
OFFICE EXPANSION. THIS CASE,
ULTIMATELY WENT TO AN ALJ. THE ALJ FOUND A VIOLATION, FOUND A VIOLATION
AGAINST THE UNION UNDER B-5 BASED ON BAD FAITH BARGAINING. WHAT’S THE BAD FAITH? THE BAD FAITH WAS THAT
THE UNION INSISTED ON ITEMS THAT WENT TO IMPASSE
ON ITEMS THAT WERE COVERED BY THE NATIONAL AGREEMENT. IN THIS CASE,
IT WAS THE FIRST TIME THAT THE AUTHORITY
DEALT SQUARELY WITH THE ISSUE OF WHETHER INSISTING
TO IMPASSE OVER A MATTER COVERED BY AGREEMENT, WAS A VIOLATION. BECAUSE THE DOCTRINE STATES THAT PARTIES DO NOT HAVE
TO BARGAIN OVER MATTERS COVERED BY THE AGREEMENT. IN SO DOING,
THE AUTHORITY FOUND THAT COVERED BY
IS A PERMISSIVE SUBJECT AND YOU CANNOT BARGAIN
TO IMPASSE OVER PERMISSIVE SUBJECTS. AN ARGUMENT WAS MADE
IN THIS CASE, THE AGENCY MADE AN ARGUMENT
ABOUT AGGRESSIVE BARGAINING BASED ON THE UNION PULLING BACK ON THEIR AGREEMENT
TO ABANDON THE MOU. AND THE AUTHORITY FOUND,
DID NOT NEED TO ADDRESS THAT CASE, THAT ISSUE. THE SECOND CASE IS ALSO
A COVERED BY CASE. IN THIS CASE, IT’S AN ALSO
A NEGOTIABILITY CASE. THERE WERE TWO PROPOSALS
AT ISSUE REGARDING
MIDTERM BARGAINING. AND THE EFFECT
OF BOTH PROPOSALS IS TO PRECLUDE APPLICATION
OF USING THE SECOND PRONG OF THE COVERED BY TEST. THE AUTHORITY INITIALLY
FOUND THAT THE PROPOSAL WOULD LIMIT
THE ABILITY TO RAISE– THE AUTHORITY INITIALLY FOUND
THAT THERE’S A STATUTORY RIGHT TO RAISE A COVER BY DEFENSE
THAT WENT TO COURT, THE DC CIRCUIT. AND THE CIRCUIT
WAS CRITICAL OF THE AUTHORITIES
INITIAL DECISION. IT REMANDED IT BACK,
SPECIFICALLY WANTING IT TO LOOK AT THE STATUTE, AND HAVE THE AUTHORITY TO SAY WHERE THE UNILATERAL RIGHT
TO RAISE COVERED BY IS. AND ALSO, WANTED THE AUTHORITY
TO DISTINGUISH PRIOR CASES, WHERE THEY FOUND
REOPENER PROPOSALS ARE MANDATORY SUBJECTS
OF BARGAINING. ON REMAND,
THE AUTHORITIES SAID THAT THERE’S A PRESUMPTION
THAT ALL MATTERS REGARDING CONDITIONS
OF EMPLOYMENT ARE MANDATORY, UNLESS THE STATUTE EXPLICITLY
OR UNAMBIGUOUSLY IMPLIES VESTING A UNILATERAL RIGHT. THEY LOOK AT THE STATUTE
AND THEY BASICALLY SAID, “IT’S NOT THERE.” SO AND THEY SAID THAT CONGRESS KNOWS HOW WRITE
PERMISSIVE PROVISIONS AND IT’S JUST NOT THERE
IN THIS CASE. THE AUTHORITY SAID
THAT HAVING– THAT IT FURTHERS THE POLICY, THAT PARTIES
WILL KNOW WHAT’S EXPECTED IF THEY NEGOTIATE
OVER PRONG 2. IF THEY NEGOTIATE
OVER PRONG TWO DURING NEGOTIATIONS, THEN DURING THE LIFE
OF THE CONTRACT, THEY KNOW
WHAT THE EXPECTATION ARE. AND AGAIN THEY SAID THAT
WHEN THEY LOOKED AT REOPENER, THEY SAID,”YES, THIS IS
VERY MUCH LIKE REOPENER,” WHICH THEY FOUND PREVIOUSLY
TO BE NEGOTIABLE. OKAY. THIS CASE IS AN IMPORTANT CASE. IT WAS BASICALLY
A UNILATERAL CHANGE CASE REGARDING OFFICE RELOCATION
AND IMPLEMENTATION. A VIOLATION
WAS FOUND IN THE CASE. THE IMPORTANT THING
ABOUT THIS CASE IS THAT ONE OF THE EXCEPTIONS
QUESTIONED THE STANDARD REVIEW OF AN ALJ’S DECISION
BEFORE THE AUTHORITY. I ENCOURAGE YOU TO READ THIS. BASICALLY, THE AUTHORITY SAID
THAT THE PREPONDERANCE OF THE EVIDENCE STANDARD
IS GROUNDED IN THE STATUTE, AND THAT IS THE STANDARD
THAT THEY WILL REVIEW. THAT’S HIGHER STANDARD
THAN SUBSTANTIAL EVIDENCE, WHICH IS WHAT THE DECENT
HAD ARGUED IN THIS CASE AND WHICH IS WHAT
THE EXCEPTION WAS BASED ON. SUBSTANTIAL EVIDENCE
IS MORE THAN SCINTILLA, BUT CERTAINLY LESS
THAN PREPONDERANCE OF EVIDENCE. SO THIS IS DEFINITELY
AN IMPORTANT CASE. AND IF YOU PRACTICE
AND YOU WRITE BRIEFS BEFORE THE AUTHORITY, YOU WILL WANT TO KNOW THIS
BECAUSE YOU’LL PROBABLY WANT TO STATE WHAT THE STANDARD
OF REVIEW IS IN YOUR BRIEF. THERE’LL PROBABLY BE
A SEPARATE SECTION FOR THAT. THIS CASE ALSO HAD AN ISSUE
REGARDING FORMAL DISCUSSION. IN THIS CASE, THE RESPONDENT
DID NOT GIVE THE UNION NOTICE OF A MEETING CALLED
TO DISCUSS REORGANIZATION. THE RESPONDENT
CHARACTERIZED THE MEETING TO PROVIDE INFORMATION
ABOUT THE REORGANIZATION. THE AUTHORITY FOUND THAT
IT WAS REASONABLY FORESEEABLE THAT THE EFFECTS
OF THE REORGANIZATION ARE REASSIGNMENTS, RELOCATIONS,
CHANGES IN ASSIGNED DUTY WHEN THE AUTHORITY FOUND
IT WAS A FORMAL DISCUSSION, AND THUS, A VIOLATION. THIS CASE, THE NEXT CASE CONCERN IN A PRIOR CASE. THERE WAS A CONCURRENCE
WRITTEN ABOUT WORKING CONDITION AND HOW WORKING CONDITIONS
ARE DIFFERENT THAN CONDITIONS
OF EMPLOYMENT. THIS CASE WAS A
ROUTINE UNILATERAL CHANGE CASE. THE AUTHORITY FOUND, UM– WELL, WHAT HAPPENED
IN THIS CASE, THIS WAS A ROUTINE– THIS WAS A VAN DRIVER WHO– HIS JOB WAS TO PICK UP
A FUEL AND OIL SAMPLES FROM VARIOUS LOCATIONS. THEN HE WAS ASSIGNED
ALL OF A SUDDEN, HE WAS ASSIGNED
SECURITY CHECKS AND HE– A CHARGED WAS FILED
IN UNILATERAL CHANGE BEFORE THE AUTHORITY. THE ACTIVITY ARGUED
THAT THE ASSIGNMENT WAS NOT A CONDITION
OF EMPLOYMENT. THE AUTHORITY– THE ACTIVITY RELIED ON
A CONCURRENCE IN A PRIOR CASE AND TRIED TO SAY
THAT IT WAS A CHANGE IN WORKING CONDITION, BUT NOT A CONDITION
OF EMPLOYMENT. THE AUTHORITY FOUND, LOOKED
AT THE STATUTE 7103, A-13, AND FOUND THAT
WHICH STATES PERSONAL POLICIES PRACTICES AND MATTERS
WHETHER ESTABLISHED BY RULE, REGULATION OR OTHERWISE,
AFFECTING WORKING CONDITIONS. THE AUTHORITIES SAID,
WORKING CONDITIONS IS NOT DEFINED ELSEWHERE
IN THE STATUTE AND THEREFORE, IT SHOULD NOT BE
CONSIDERED OUTSIDE THE CONTEXT OF THE DEFINITION
OF CONDITION OF EMPLOYMENT. SO AT LEAST
FOR THE TIME BEING, THAT ISSUE
SEEMS TO BE CLOSED. IN THIS CASE, WHICH IS AN ARBITRATION CASE,
BY THE WAY, BARGAINING WAS CONCLUDED. AND THE PARTIES DETERMINED
THAT ARTICLE 13 ROLLED OVER
TO THE NEW AGREEMENT. IT CONCERNED, BASICALLY,
FACTORS FOR ASSIGNING POINTS FOR PROMOTION. AND THE AGENCY HAD
DISAPPROVED THREE PORTIONS PERTAINING TO ASSIGNING
POINTS FOR INCENTIVE AWARDS. A NEGOTIABILITY APPEAL
WAS FILED AND WAS SUBSEQUENTLY DISMISSED. THE AGENCY THEN
DETERMINED TO REVISE PORTIONS OF ARTICLE 13, CONCERNING
CONSIDERATION OF AWARDS. AND THE AGENCY SAID, IF NO AGREEMENT ,
THE AGENCY WOULD IMPLEMENT AND THEN ENGAGE A
POST-IMPLEMENTATION BARGAINING. SO THE AGENCY IMPLEMENTED. THE UNION FILED A GRIEVANCE ARGUING
THAT THE AGENCY COMMITTED A ULP. THE ARBITRATOR FOUND
THAT THE AGENCY WAS PERMITTED TO IMPLEMENT CHANGES
BECAUSE IT WAS NECESSARY FOR THE FUNCTIONING
OF THE AGENCY, WHICH WAS
THE AGENCY’S DEFENSE TO
THE UNILATERAL IMPLEMENTATION. AND THE AUTHORITY
DID NOT DISTURB THIS. WHY DIDN’T THE AUTHORITY
DISTURB THIS? THERE WAS PLENTY
AMONG OTHER REASONS. THERE WAS PLENTY OF EVIDENCE. THE ACTIVITY DID
A VERY GOOD JOB OF DOCUMENTING, THE LUMINOUS MATERIALS
WERE SUBMITTED BY THE AGENCY SHOWING WHY
THEY NEEDED TO FILL MISSION CRITICAL
POSITIONS PROMPTLY. THEY WERE UNDERGOING
WAVE HIRING AND THEY WERE RECRUITING
HUNDREDS OF EMPLOYEES, SO THAT’S WHAT
THE AUTHORITY LOOKED AT. THEY LOOKED
AT THE RECORD VERY CAREFULLY AND FOUND THAT
THE NECESSARY FUNCTIONING OF THE AGENCY DEFENSE
WAS ESTABLISHED IN THIS CASE. THE NEXT CASE
CONCERNS OFFICIAL TIME. IN THIS CASE,
THE CHARGE WAS FILED WHEN THE AGENCY INSTRUCTED
UNION REPRESENTATIVES NOT TO USE OFFICIAL TIME
TO DISTRIBUTE FLYERS. REGARDING– THIS WAS
A PROPOSED REGULATORY CHANGE. THEY WERE IMPLEMENTING NSPS, AND MOST OF YOU KNOW,
THIS WAS THE HR SYSTEM THAT GOVERNS PAY, STAFFING AND CLASSIFICATION
IN THE DEFENSE DEPARTMENT. THE CHARGING PARTY
HAD BEEN DISTRIBUTING FLIERS IN NON-WORK AREAS AND ENCOURAGING EMPLOYEES
TO SUBMIT COMMENTS DURING THE NOTICE
AND COMMENT PERIOD. THE AGENCY POINTED
TO ARTICLE 6 OF THE CONTRACT REGARDING OFFICIAL TIME, WHICH STATED THAT
THE DISTRIBUTION OF LITERATURE WAS OKAY IF CONDUCTED OUTSIDE
OF REGULAR WORK HOURS IN NON-DUTY STATUS. THIS WENT BEFORE AN ALJ,
AND THE ALJ FOUND THAT THE RIGHT TO OFFICIAL
TIME WAS GROUNDED IN 7102, SECTION 7102. THEREFORE,
IT WAS A STATUTORY RIGHT. HE– I DON’T REMEMBER
WHETHER IT WAS A HE OR SHE, SO I’LL JUST SAY HE. HE BASICALLY SAID
THAT THIS WAS– THAT OFFICIAL TIME IS
THE EQUIVALENT OF NON-WORK TIME AND THAT THE CHARGING PARTY
HAD A RIGHT TO DISTRIBUTE FLYERS ON OFFICIAL TIME. AND THEN, HE FOUND THAT THE PARTY’S AGREEMENT
RESTRICTED RIGHTS, ONLY WITH RESPECT
TO INTERNAL MANAGEMENT OF THE UNION. AND FLYERS WERE UNRELATED
TO INTERNAL UNION MANAGEMENT. THE CASE CAME
BEFORE THE AUTHORITY AND THE AUTHORITY SAID,
“NO, THERE IS NO STATUTORY RIGHT TO OFFICIAL TIME HERE.” THE AUTHORITY WENT THROUGH
ALL THE DIFFERENT SUBSECTIONS OF 7131, AND BASICALLY SAID
THAT THIS FELL UNDER 7131(D). AND IT’S A CONTRACT RIGHT. AND INCLUDING THE RIGHT
TO DISTRIBUTE FLYERS IN THIS CASE WAS NOT INCLUDED
IN THE CONTRACT. SO THE AUTHORITY REVERSED
THE ALJ IN THIS CASE. THE NEXT CASE
IS AN INFORMATION CASE. AND THOSE OF YOU
WHO HAVE BEEN WITH THE PROGRAM KNOW THAT WE’VE HAD MANY,
MANY DECISION ON INFORMATION, INCLUDING A COUPLE THAT
WENT ON HIGH TO THE TOP COURT. IN THIS CASE,
BARGAINING UNIT EMPLOYEE RECEIVED A PROPOSED DECISION
TO TERMINATE HER. THE DECISION
IN THIS TERMINATION CASE WAS BASED ON AN INVESTIGATION
CONDUCTED BY THE TREASURY OIG FOR TAX ADMINISTRATION. IT’S A BUREAU
OF THE TREASURY DEPARTMENT. SO IN REPRESENTING
THIS INDIVIDUAL, THE UNION MADE REQUESTS
FOR INFORMATION INCLUDING
THE INVESTIGATORY DOCUMENTS. THE AGENCY DID PROVIDE
SOME OF THE DOCUMENTS, BUT NOT ALL
OF THE DOCUMENTS WERE PROVIDED INCLUDING POLICY DOCUMENTS
IN THE INVESTIGATION MANUAL. AND THE AGENCY SAID
THEY DON’T HAVE CONTROL OVER THE RELEASE
OF THE INFORMATION. THE ALJ FOUND–
OBVIOUSLY, A CHARGE WAS FILED. THE ALJ FOUND
THAT THE INFORMATION WAS NOT NORMALLY
MAINTAINED BY THE IRS. THEREFORE, A CHARGE
WAS DISMISSED. AND BASICALLY FOUND
THAT THE TREASURY OIG FOR TAX ADMINISTRATION
IS A SEPARATE BUREAU AND IT’S INDEPENDENT. THE AUTHORITY– THIS IS A GOOD CASE
FOR YOU TO LOOK AT IF YOU’RE INTERESTED IN SOME
OF THE SUPREME COURT LITIGATION BECAUSE THERE IS
A LOT OF DISCUSSION ABOUT IT. THE PARTIES ARGUED
THESE CASES AND THEIR EXCEPTIONS AND THE AUTHORITY
DISCUSSED IT IN THEIR DECISION. BUT BASICALLY, WHAT
YOU TAKE AWAY FROM THIS CASE IS IF THEY DON’T HAVE CONTROL, THEN IT’S NOT
NORMALLY MAINTAINED. OKAY. I DON’T KNOW WHETHER
I HAVE THE SENSOR OR NOT, BUT YOU CAN READ
FOR YOURSELF. THIS IS PRETTY
SELF-EXPLANATORY. THE COMPLAINT IN THIS CASE
ALLEGED IN A1 AND 2 BASED ON THE FAA, ORDERING THE LOCAL PRESIDENT
REMOVE FROM THE PREMISES BECAUSE HE ENGAGED
IN PROTECTIVE ACTIVITY. WHAT HAPPENED HERE
IS THE PRESIDENT– THE PRESIDENT OF THE UNION
AND THE SUPERVISOR DID HAVE
A VERY HEATED DISCUSSION ABOUT STAFFING LEVELS, AND THE PRESIDENT
HAD A STRONG BELIEF THAT THE STAFFING LEVELS
WERE INSUFFICIENT. AND THE PRESIDENT WANTED
AN IMMEDIATE DECISION. SO HE SAID WHAT HE SAID,
WHAT YOU CAN READ. AS A RESULT, A SECURITY GUARD
WAS SUMMONED TO ESCORT HIM OFF THE PREMISES,
BACK TO THE OPERATIONS ROOM. AND HE WAS PLACED
ON ADMINISTRATIVE LEAVE AND ESCORTED OFF THE PREMISES. THE ALJ APPLIED
THE LETTERKENNY ANALYSIS AND I’M SURE,
PROBABLY ALMOST ALL OF YOU KNOW WHAT THAT IS. AND HE DETERMINED
THAT THE PRESIDENT WAS ENGAGED IN PROTECTIVE ACTIVITY. HE FOUND A VIOLATION. IN LOOKING AT THE LEGITIMATE
JUSTIFICATION, WHICH AS YOU KNOW, THE
AGENCY HAS THE BURDEN TO PROVE. THEY LOOKED
AT PRIOR CASE DEFENSE MAPPING, WHICH SETS THE STANDARD
THAT WHAT YOU LOOK TO DETERMINE WHETHER
THERE WAS A FLAGRANT MISCONDUCT AND THERE’S FOUR CRITERIA. THE PLACE AND SUBJECT MATTER
OF DISCUSSION WHETHER THE OUTBURST
WAS IMPULSIVE OR DESIGNED, WHETHER PROVOKED
BY THE EMPLOYER’S CONDUCT, AND THE NATURE
OF THE INTEMPERATE LANGUAGE. AND THE ALJ FOUND
THAT IT DID NOT FALL OUTSIDE THE BOUNDS OF PROTECTION
AND THE AUTHORITY AGREED. NOW I DO HAVE A BONUS,
ANOTHER BONUS CASE FOR YOU IF YOU’RE REALLY INTO
FLAGRANT MISCONDUCT CASES. SO I’LL GIVE YOU THIS SITE. IT’S 64 FLRA 661. IT’S AN ARBITRATION CASE,
AS I SAID, CONCERNING
FLAGRANT MISCONDUCT. AND IN THIS CASE,
THE UNION REP INTERRUPTED AN INVESTIGATORY HEARING
AND TOLD THE EMPLOYEE TO LEAVE, AND THEN SCREAMED
AT HER TO LEAVE. THE AUTHORITY FOUND
IT WAS NOT FLAGRANT MISCONDUCT. THAT CASE, AS THE
PRIOR CASE, BOTH HAVE A DESCENT. OKAY. HOW AM I FOR TIME? THE NEXT CASE
IS A REPRESENTATION CASE, THIS IS A QUICK ONE. CASE CONCERNED A CLARIFICATION
OF A UNIT PETITIONED THAT WAS FILED BY THE AGENCY ALLEGING THAT AN INTERN
SHOULD BE OUTSIDE THE UNIT BECAUSE THE INTERN
WAS CONFIDENTIAL WITHIN THE MEANING
OF 7103 (A)(13). THE AGENCY ARGUED
FOR THE FIRST TIME, THEY HAD A HEARING, AND THEN IN
THE POST-HEARING BRIEF, FOR THE FIRST TIME,
THE AGENCY SAID, “WELL, REALLY THE PERSON
SHOULD BE EXCLUDED BECAUSE HE OR SHE
WAS ENGAGED IN INVESTIGATION AND AUDIT FUNCTIONS, ALSO EXCLUDED
WITHIN 7112 (B)(7). THE RD REFUSED TO CONSIDER
THE EXCLUSION CLAIM BECAUSE IT WAS LATE. THE AUTHORITIES SAID, IT WAS
A CASE OF FIRST IMPRESSION. BUT THE AUTHORITY
ANALOGIZED TO ANOTHER CASE, WHERE IT SAID THAT AN EXCLUSION
RAISED FOR THE FIRST TIME IN RESPONSE TO AN ORDER
TO SHOW CAUSE WAS OKAY. SO IN THIS CASE,
IT WAS ALSO OKAY. RAISING FOR THE FIRST TIME
IN THE POST-HEARING BRIEF. THE NEXT TWO CASES CONCERN
REPUDIATION OF A CONTRACT TERM. IN THIS CASE, I’LL START– THIS IS THE CASE
THAT ULTIMATELY WENT TO THE D.C. CIRCUIT
AND THEN WAS REMANDED. IT WAS REMANDED
FOR CONSIDERATION OF THE SECOND PRONG. THE CASE CONCERNED
AN AGREEMENT PURSUANT
TO THE EXECUTIVE ORDER ON DRUG-FREE
FEDERAL WORKPLACE. THE PARTIES HAD SECTIONS
IN THEIR AGREEMENT THAT WERE PRETTY
SPECIFIC ABOUT THIS. IN PARTICULAR ARTICLE 27
OF THE AGREEMENT, THAT REHAB
IS THE ULTIMATE OBJECTIVE OF THE DRUG
AND ALCOHOL ABUSE PROGRAM AND REFERRAL FOR
TREATMENT SHOULD NOT JEOPARDIZE THE EMPLOYEES’ JOB SECURITY
OR PROMOTION. IN THIS CASE, I THINK
IT WAS TWO EMPLOYEES WERE TERMINATED, AND
THE CHARGE ALLEGED REPUDIATION. INITIALLY,
THE AUTHORITIES FOUND THAT THE CONTRACTUAL PROVISIONS WERE NOT CLEAR ON THEIR FACE AND THEY FOUND
A REASONABLE INTERPRETATION AND THAT THEY UPHELD– THEY DID NOT FIND
THAT THERE WAS A REPUDIATION, SO THEY NEVER GOT TO PRONG 2. THE CASE GOES TO THE– THE CASE WENT
TO THE D.C. CIRCUIT AND THE D.C. CIRCUIT FOUND THAT THERE WAS
A CLEAR PATENT BREACH, SO THE D.C. CIRCUIT REMANDED
IT BACK TO THE AUTHORITY TO LOOK AT PRONG 2
IN THIS CASE. PAGE 357 OF THIS CASE,
YOU MAY WANT TO JOT THAT DOWN, IS A REALLY GOOD DISCUSSION, A LIST OF MANY PRONG
2 CASES BEFORE THE AUTHORITY. SO, YOU KNOW,
IF YOU’RE PRESSED FOR TIME AND YOUR CASE TURNS ON PRONG 2
IN THE REPUDIATION ANALYSIS, I ENCOURAGE YOU
TO LOOK AT PAGE 357. AND BASICALLY,
THE AUTHORITY DID FIND THAT THERE WAS
A REPUDIATION ON REMAND. THE NEXT CASE ALSO
CONCERNS REPUDIATION, A REPUDIATION
OF AN ORAL AGREEMENT. THIS CASE CONCERN
AN ORAL AGREEMENT CONCERNING ADMINISTRATIVE
RANK ADVANCEMENT OF CERTAIN EMPLOYEES
TO HIGHER BANDS UNDER THE FACULTY
PERSONNEL SYSTEM. THE GOAL HERE WAS NOT
TO DISADVANTAGE THOSE EMPLOYEES WHO SWITCH FROM GS
TO THIS NEW SYSTEM. THE AGREEMENT
WAS NEGOTIATED ORALLY BETWEEN THE UNION
AND THE PRIOR CHANCELLOR. THE ACTING CHANCELLOR REFUSED
TO HONOR THE AGREEMENT STATING THAT
IT WAS NOT IN WRITING. THE CASE TURNED ON,
ESSENTIALLY, AGENCY CASE LAW. SO AGAIN,
MARK THIS DOWN AS A CASE WHERE THERE’S A GOOD
DISCUSSION OF AGENCY CASE LAW. AND SO THERE WAS A DISCUSSION ABOUT WHETHER
THE PRIOR CHANCELLOR HAD ACTUAL OR APPARENT AUTHORITY
TO ENTER INTO THE AGREEMENT. AND THE AUTHORITY FOUND
BASED ON– AGAIN, A RECORD
WAS CREATED IN THIS CASE THAT THE AUTHORITY LOOKED AT AND FOUND THAT
THE PRIOR CHANCELLOR DID HAVE ACTUAL AUTHORITY, AND FOUND IN THE ALTERNATIVE
THAT THE PRIOR CHANCELLOR HAD APPARENT AUTHORITY. IT’S A QUESTION OF FACT, THEY’RE GONNA LOOK
TO THE RECORD ON THIS. THE UNION– I’M RUNNING OUT OF TIME. WE’LL MOVE TO THE NEXT CASE. ONE LAST THING
ABOUT THIS ONE. AGAIN, PRACTITIONER’S TIPS. THERE’S A GOOD DISCUSSION
ABOUT MOTION TO STRIKE AND TO TAKE OFFICIAL NOTICE. SO IF YOU’RE WRITING PLEADINGS, YOU MAY WANT
TO STAR THIS CASE AND LOOK AT WHAT
THE AUTHORITIES SAID ABOUT THOSE TWO MATTERS. DO YOU HAVE QUESTIONS? (female) I DON’T HAVE ANY. YOU HAVE NO QUESTIONS? OKAY, THEN I’LL PROCEED. OKAY, THIS CASE, AS THOSE OF YOU
WHO DEAL WITH REP ALL THE TIME, THE FACTS AND REPS CASES
CAN GET REALLY INVOLVED. IF I COULD DO
THIS SLIDE OVER AGAIN, I WOULD DO IT BY DIAGRAM TO MAKE IT MUCH EASIER
FOR YOU TO UNDERSTAND. BUT I’LL JUST TRY
AND TELL YOU ABOUT IT, AND HOPEFULLY,
YOU CAN FOLLOW IT. IF I WERE SITTING WHERE
YOU ARE, I PROBABLY WOULD NOT. THERE ARE TWO BARGAINING
UNITS INVOLVED IN THIS CASE. NAGE REPRESENTS
A UNIT OF EMPLOYEES AT LANGLEY AIR FORCE BASE
IN VIRGINIA AND AFGE REPRESENTS UNIT IN RANDOLPH AIR FORCE BASE. THEIR EACH SERVICED
BY THEIR RESPECTIVE CENTRAL CIVILIAN
PERSONNEL OFFICE. OKAY, A REORGANIZATION
TOOK PLACE. WHAT HAPPENED DURING
THE REORGANIZATION IS THAT FIVE
MAN POWER REQUIREMENTS SQUADRONS WERE CREATED. THE SECOND SQUADRON
IS LOCATED AT LANGLEY. REMEMBER, NAGE HAS LANGLEY. THE FIRST SQUADRON
IS LOCATED AT RANDOLPH. INITIALLY, THE EMPLOYEES
IN EACH OF THOSE SQUADRONS REPORTED THERE, LOCALLY. THEN THE EMPLOYEES OF THE– IN AUGUST OF 2007,
ALL FIVE OF THE SQUADRONS BEGAN RECEIVING
THEIR PERSONNEL SERVICING FROM RANDOLPH AIR FORCE BASE. SO THE AGENCY FILED
A PETITION ASSERTING THAT DUE TO THE CHANGE, THE EMPLOYEES
AT THE SECOND SQUADRON, THAT’S THE ONES AT LANGLEY, THEY SHOULD BE UNDER
RANDOLPH AIR FORCE BASE. THEY GO BACK
TO THE CERTIFICATION FOR THEIR ARGUMENT. THEY WERE SERVICED
BY RANDOLPH, NOT LANGLEY. AFGE ARGUED THAT UNDER
FORT DIX, A PRIOR CASE, ONCE THE CENTRAL CIVILIAN
PERSONNEL OFFICE AT RANDOLPH BEGAN SERVICING
THE SECOND SQUADRON, THEY WERE AUTOMATICALLY
INCLUDED IN AFGE’S UNIT. RANDOLPH AND– EXCUSE ME. NAGE ARGUED
THAT IT SHOULD REMAIN AS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES BECAUSE THEY ARE THERE. THEY’RE NOT AT RANDOLPH,
SO THEY SHOULD REMAIN. THE RD CONCLUDED
THAT IT WAS INAPPROPRIATE TO APPLY FORT DIX
IN THIS CASE. SO THE PETITION
WAS DISMISSED IN THIS CASE. THE AUTHORITY CONCLUDED THAT THE AUTOMATIC
INCLUSION PRINCIPLE IN FORT DIX APPLIED. THE CASE ULTIMATELY WAS
REMANDED TO THE RD TO DECIDE IF INCLUSION OF THE UNIT
AT LANGLEY IN THE AFGE UNIT, REMEMBER THAT WAS
THE ONE AT RANDOLPH, WOULD RENDER
AFGE’S UNIT INAPPROPRIATE. THE LAST CASE
IS A 7116 (D) CASE, AND IT’S
A PRETTY STRAIGHTFORWARD ONE. IN THIS CASE,
THE COMPLAINT ALLEGED AN (A)(1) VIOLATION WHEN A UNIT EMPLOYEE
WAS REPRESENTED BY THE UNION
AT A MEETING. IT WAS TOLD
TO THIS EMPLOYEE THAT HE WOULD HAVE GOTTEN LESS– HE WOULD HAVE BEEN
TREATED LESS HARSHLY HAD HE NOT GONE TO THE UNION
TO PROVIDE A RESPONSE TO A PROPOSED
FIVE-DAY SUSPENSION. SO AS YOU CAN IMAGINE,
ULP WAS FILED. AND BASICALLY– THERE WAS A HEARING
OVER THE THREE-DAY SUSPENSION. THERE WAS–
A GRIEVANCE WAS FILED, AND LATER, ULP. THE GRIEVANCE MERELY CONCERNED
A CONTRACT ARTICLE, AND THE EVIDENCE
WAS VERY CLEAR ON THAT. THE ULP CONCERN
A STATUTORY ISSUE AND THE AUTHORITY FOUND THAT THERE WAS NO 7116 (D) BAR
IN THIS CASE. AGAIN, YOU KNOW
TESTIMONY WAS VERY IMPORTANT, SO, YOU KNOW, IF I CAN
GIVE YOU A STRONG TIP, MAKE SURE
YOU DEVELOP YOUR CASE ‘CAUSE THE AUTHORITIES
IS NOT GONNA FIND SOMETHING THAT’S NOT THERE. AND THAT CONCLUDES
MY PRESENTATION. I’M SORRY
IF I RUSHED THROUGH IT. IF YOU HAVE ANY QUESTIONS, AGAIN, MY E-MAIL ADDRESS
IS [email protected] AND I’M VERY GOOD WITH E-MAIL. IF I’M IN THE OFFICE,
I’LL RESPOND THE SAME DAY. UNLESS, YOU KNOW, JULIE
HAS ME DOING SOMETHING ELSE. BUT ANYWAY,
IT’S BEEN A PLEASURE. THIS IS ACTUALLY MY FIRST
TIME IN A WEBCAST NATIONALLY. OKAY, WE ARE AVAILABLE NOW TO ANSWER
ANY OF YOUR QUESTIONS IF ANYONE HAS ANY. DO WE HAVE ANY
FROM THE WEBCAST? NO. THANK YOU. YEAH, YOU’LL HAVE TO SPEAK
INTO THE MICROPHONE FOR THEM. UM, AS PART OF THE GOING
TO ELECTRONIC FILING… YES? WOULD THAT INCLUDE US
GETTING CHARGES ELECTRONICALLY AS WELL? UH, YES. TO FILE– YEAH, IT WILL INCLUDE
THE FILING OF CHARGES. I MEAN, SO THE CHARGES
INSTEAD OF COMING IN THE MAIL, THEY’LL COME ELECTRONICALLY? OH, YOU MEAN, WILL THEY BE
SERVED ELECTRONICALLY? SERVED ELECTRONICALLY, EXACTLY. I DON’T KNOW THAT
THAT’S BEEN DETERMINED YET. OKAY. THANK YOU. ALL OF IT IS GONNA REQUIRE SOME REGULATORY CHANGES
IN TERM– THE E-FILING ITSELF
IS GONNA REQUIRE US TO REDO OUR REGULATIONS BECAUSE THE REGULATIONS SET HOW THINGS ARE
TO BE FILED AND SERVED. SO ONCE WE GET
THE E-FILING GOING AND WE GET THE REGULATIONS, THEN YOU’LL HAVE THE GUIDANCE
ON HOW THEY ARE TO BE SERVED. ANY OTHER QUESTIONS? OKAY, THANK YOU VERY MUCH. [applause] THANK YOU. WELL, THANKS. THANK YOU, PANEL, FOR A
REALLY INFORMATIVE PRESENTATION. WE LEARNED ABOUT
SOME OF THE CHANGES THE AUTHORITIES
HAVE BEEN GOING THROUGH AND HOW YOUR OFFICE
HAS BEEN RESPONDING AND MAKING SOME CHANGES. THEY’RE ACTUALLY VERY HELPFUL TO THE LABOR
RELATIONS COMMUNITY. SO YOU’RE TRAINING IN EDUCATION,
CASE PROCESSING ACTIVITIES, EVEN COMING
AND REACHING OUT FOR INPUT, I THINK IS VERY COMMENDABLE AND A REFRESHING CHANGE
FOR ALL OF US. SO WE LOOK FORWARD
TO WORKING WITH YOU AND WISH YOU WELL. FOR THOSE OF YOU
WHO ARE HERE ON THE AUDITORIUM, PLEASE FILL OUT
YOUR EVALUATION FORMS, LEAVE THEM
WITH A STAFF MEMBER AS YOU GO. AND THOSE OF YOU BY WEBCAST, YOU CAN SEND THAT
TO [email protected] OR FAX IT
TO 202-606-2613. AND PLEASE BE SURE
TO LET US KNOW WHAT KINDS OF PRESENTATIONS YOU’D BE INTERESTED
IN THE FUTURE. I DO WANT TO MAKE
A CALL TO YOUR ATTENTION. OUR NEXT FORUM SERIES WHICH IS GOING TO BE
ON USERRA AND THAT’S JULY 21st. AND THIS ONE
WILL COVER SOME AREAS THAT ARE PREVIOUS
USERRA PRESENTATIONS DID NOT COVER. IT WILL INCLUDE
A DISCUSSION OF DOCUMENTATION FOR BOTH DEPARTING
AND RETURNING SERVICE MEMBERS, THE FIVE-YEAR RULE,
ENFORCEMENT MECHANISMS USING THE DEPARTMENT
OF LABOR VETS AND MERIT-BASED PROMOTIONS
AND ASSIGNMENTS. ALSO NOTE THAT USERRA TRAINING IS REQUIRED
FOR THOSE INDIVIDUALS WHO ARE AUTHORIZED TO TAKE
OR RECOMMEND PERSONNEL ACTIONS. SO, UH, THOSE OF YOU HERE, REMEMBER YOU NEED TO BE ESCORTED
AS YOU LEAVE THE BUILDING. AND THANK YOU AND WE’LL LOOK FORWARD
TO HAVING YOU AT THE NEXT PRESENTATION.

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