Department of Justice Request for General Statement of Policy or Guidance (Authority decision, September 10, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying a request for a general statement of policy or guidance. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Department of Justice asked the Authority for general guidance on the General Counsel's power to settle unfair labor practice allegations involving a union's call for or support of a strike, work stoppage, or slowdown. Justice also asked about notice-only settlements and the effect of a call for action without an actual stoppage. The Authority declined to issue the requested policy statement. It said the General Counsel has full authority to enter informal settlements when they serve the statute's purposes, and limiting that role would undermine the Authority's settlement policy. It also found that the issues arose too rarely to warrant guidance of general applicability.

Decision snapshot

• Authority: General Counsel settlement authority under 5 U.S.C. § 7104(f)(2) and guidance standards in 5 C.F.R. § 2427.5.
• Outcome: Request for general policy guidance denied.
• Key point: The General Counsel may settle unfair labor practice allegations informally without Authority approval when the settlement advances the statute's purposes.

Full text (FLRA public release)

[ v23 p342 ]

23:0342(45)PS

The decision of the Authority follows:

23 FLRA No. 45

Case No. 0-PS-29

DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR GUIDANCE

The Authority received a request from the Department of Justice (Justice) that the Authority issue a general statement of policy or guidance on the following questions:

(1) Whether the General Counsel of the Federal Labor Relations Authority, pursuant to his charter under 5 U.S.C. Section 7105 and 7118, is vested with the authority to unilaterally engage in the informal settlement of an unfair labor practice involving a violation of 5 U.S.C. Section 7116(b)(7); and, if so, whether and to what extent, this authority is limited.

(2) Whether a settlement agreement which merely provides for posting a notice is, in itself, sufficient to constitute "tak(ing) any other appropriate disciplinary action" as required by 5 U.S.C. Section 7120(f)(2).

(3) Whether the act of calling for, or condoning, a strike, work stoppage, or slowdown by a labor organization, in violation of 5 U.S.C. Section 7116(b)(7) is, in the absence of an actual strike, sufficient to require that the action set out at 5 U.S.C. Section 7120(f) be carried out.

The Authority has carefully considered this request and has determined that it does not satisfy the standards governing the issuance of general statements of policy or guidance set forth in section 2427.5 of the Authority's Rules and Regulations, which provides in pertinent part:

Section 2427.5 Standards governing issuance of general statements of policy or guidance.

In deciding whether to issue a general statement of policy or guidance, the Authority shall consider:

(c) Whether the resolution of the question presented would have general applicability under the Federal Service Labor-Management Relations Statute;

(f) Whether the issuance by the Authority of a general statement of policy or guidance on the question would promote constructive and cooperative labor-management relationships in the Federal service and would otherwise promote the purposes of the Federal Service Labor-Management Relations Statute.

Underlying Justice's request, in our view, is a desire to have the Authority examine the role of the General Counsel in investigating, prosecuting and remedying conduct which is alleged to violate section 7116(b)(7) of the Statute. /1/ Justice would apparently limit the role of the General Counsel in entering into unilateral informal settlement agreements in such cases.

Considering first the standard set forth in section 2427.5(f) of our Rules and Regulations, we find that issuance of a general statement of policy or guidance with respect to the limitation on the role of the General Counsel suggested by Justice would not promote constructive and cooperative labor-management relationships or otherwise promote the purposes of the Statute. Rather, issuance of the statement requested by Justice would have the opposite effect. It would impinge on the statutory duties and responsibilities of the General Counsel and would be inconsistent with the settlement policy articulated in the Authority's Rules and Regulations.

Section 7104(f)(2) of the Statute defines the duties and responsibilities of the General Counsel. Specifically, that section enpowers the General Counsel to "investigate alleged unfair labor practices, . . . file and prosecute complaints, . . . and exercise such other powers of the Authority as the Authority may prescribe." Among these "other powers" is the "full and final authority and responsibility, on behalf of the Authority . . . to enter into and approve the informal settlement of charges" as set forth in Appendix B of our Rules and Regulations. Where, upon investigation of an unfair labor practice charge, the General Counsel issues a complaint but subsequently determines that it will effectuate the purposes and policies of the Statute to settle the matter, the General Counsel may then decide to cease prosecuting the complaint and enter into an informal settlement agreement. Such agreement may be either bilateral or unilateral depending on whether or not the charging party to the complaint is also a party to the settlement agreement. Once the General Counsel enters into an informal settlement agreement, Authority approval of that agreement is not required. /2/ The determination by the General Counsel to cease prosecuting a complaint and enter into an informal settlement agreement is thus fully within his authority as expressed by Congress in enacting section 7104(f)(2) of the Statute. /3/

Moreover, efforts by the General Counsel to informally resolve an allegation that an unfair labor practice has been committed are fully consistent with Appendix B of the Rules and Regulations, noted above, and the Authority's settlement policy.

In exercising its leadership role under the Statute, /4/ the Authority has long maintained a policy of encourging the informal resolution of unfair labor practice charges. This policy, expressed in sections 2423.2 and 2423.11 of the Rules and Regulations, extends to any phase of an unfair labor practice proceeding where the purposes and policies of the Statute will be effectuated. /5/ The settlement policy was designed to foster constructive and cooperative labor-management relationships by encouraging parties involved in a labor-management dispute to communicate with one another in an attempt to resolve the matter and, hopefully, to forestall the occurrence of future disputes. It was also designed to resolve disputes expeditously without resort to possibly lengthy and costly litigation and, generally, to promote harmony at the workplace. No limitation on the "full and final authority and responsibility" of the General Counsel to effect informal settlements as expressed in Appendix B and elsewhere in the Authority's Rules and Regulations was stated or intended.

Therefore, based upon the role of the General Counsel set forth in section 7104(f)(2) of the Statute and the further delegation of duties as prescribed in our Rules and Regulations and given the considerations underlying the Authority's settlement policy, we find that the General Counsel, through his regional directors, clearly possesses the authority to informally settle all allegations of unfair labor practices where the offered settlement will effectuate the purposes and policies of the Statute. To grant Justice's request and resolve the questions raised in the manner suggested would not, in our view, promote constructive and cooperative labor-management relationships in the Federal Service.

We also find that the request does not meet the standard set forth in section 2427.5(c) in that resolution of the questions presented would not have general applicability under the Statute. As noted by Justice, there have been very few instances in which the General Counsel has entered into such settlement agreements and therefore very few instances in which such issues have arisen. Any questions concerning the authority of the General Counsel to act in this area have been addressed above.

Issued, Washington, D.C. September 10, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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(1) Section 7116(b)(7) provides as follows:

Section 7116. Unfair Labor Practices

(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization to;

(7)(A) to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations, or

(B) to condone any activity described in subparagraph

(A) of this paragraph by failing to take action to prevent or stop such activity(.)

(2) Formal settlement agreements, on the other hand, must be submitted to the Authority for approval. See generally section 2423.11 of the Rules and Regulations for a description of the different types of settlement agreements.

(3) Similarly, the General Counsel maintains the discretion to determine whether to issue a complaint in the first instance. Such action is not subject to review by the Authority and is generally not subject to judicial review. See Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982).

(4) Section 7105(a) of the Statute provides:

Section 7105. Powers and Duties of the Authority

(a)(1) The Authority shall provide leadership in establishing policies and guidance relating to matters under this chapter, and, except as otherwise provided, shall be responsible for carrying out the purpose of this chapter.

(5) See also Norfolk Naval Shipyard, 10 FLRA 641 (1982) and Veterans Adminstration Medical Center, Bath, New York and Veterans Administration, Washington, D.C., 12 FLRA 552 (1983).