Proposed change to unfair labor practice mediation rules draws fire

A proposal to revise the role the Federal Labor Relations Authority's general counsel has in mediating unfair labor practices disputes was met with criticism from an employees' union concerned that the change would limit opportunities for mediation.

In late December 2007, FLRA issued a Federal Register notice stating its Office of General Counsel "will not be involved in any way in resolving parties' disputes until after a determination has been made that a charge is meritorious." This means that neither the office nor an FLRA regional director could step in to mediate a dispute during the time when an unfair labor practices claim is being researched and investigated.

But Colleen Kelley, president of the National Treasury Employees Union, said removing the possibility of mediation before a finding makes it harder to reach negotiated solutions.

"The general counsel proposes to eliminate precisely the most promising opportunity for dispute resolutions, when the parties may be amenable to compromise," Kelley wrote to Jill Crumpacker, executive director of FLRA, on Jan. 22. "Once the region has made a determination to issue a complaint, the charging party has a significantly less incentive to settle for anything less than a full capitulation by the party charged with the offense."

FLRA's proposal suggests that the change is necessary to maintain the general counsel's neutrality and to avoid influencing any determination of the merits of the claim.

"To maintain complete neutrality, the general counsel may not be involved with such settlement discussions with the parties prior to a regional director determination on the merits," the Federal Register notice stated.

But Kelley said the neutrality claims are baseless.

"The current regulations ensure the general counsel's neutrality in merit determinations by prohibiting the regional representative involved in the alternative dispute resolution process from being involved in any subsequent investigation of the merits of the charge," Kelley wrote.

In fact, she argued, delaying the general counsel or regional office's involvement until after the merits have been determined means that "at [that] point in the negotiations, the parties would be dealing with a third party that is no longer neutral."

Kelley and other union leaders have sharply criticized the Federal Service Impasses Panel, the FLRA body that decides deadlocked disputes between federal employee unions and agencies. They have argued that the panel has negotiated fewer compromises and has decided more cases in favor of agencies since President Bush replaced the panel members in early 2002.