October 20, 1995
TO: Regional Directors
FROM: Joe Swerdzewski, General Counsel
SUBJECT: Intervention Policy
This policy was developed after considering the recommendations of the Maximizing the Statute Work Group (which includes all Regional Attorneys, representatives selected by the Union of Authority Employees and Headquarters managers) and the Regional Directors. This policy will be made available to our customers. This policy will be implemented in conjunction with the General Counsel's Quality in Unfair Labor Practice Investigations Policy and Scope of Investigations Policy which have issued this date.
Regional Directors, under the direction and supervision of the General Counsel, conduct such investigations of unfair labor practice charges as the Regional Director deems appropriate to the totality of the circumstances surrounding the charge. Under certain criteria detailed in this policy memorandum, a Regional Director may utilize an alternative case processing technique by determining to intervene in the dispute underlying the charge, rather than initially investigating the particular facts and merits of the charge. The purpose of an intervention is to resolve the underlying dispute without the need to determine the merits of the charge. The role of the Office of the General Counsel is to assist the parties in that endeavor by facilitating an interest based problem solving approach. The intervention is a form of alternative dispute resolution which allows the parties an environment to use an interest based approach to resolve their dispute. Since the merits of the charge are not relevant to the intervention, no evidence on the unfair labor practice charge will be gathered during the intervention. The process and the role of the Office of the General Counsel will be fully explained to the parties.
This policy sets forth the criteria and conditions which the Regional Directors will consider when determining whether to intervene in a dispute rather than initially investigating the merits of the charge. This policy also sets forth the standards which the Regions will meet when intervening in a dispute. This policy will be evaluated to determine its effectiveness on a recurring basis, by reviewing the manner in which it is implemented and its results and by considering the views of our customers.
This policy seeks to establish an approach to be applied by all the Regions when determining whether a charge initially should be investigated, evidence and positions obtained and a determination made on the merits of the charge, or whether an alternative case processing approach should be initially utilized. This policy establishes criteria and conditions governing when certain charges should be processed under an alternative approach to resolve the underlying dispute. This policy will allow the Office of the General Counsel to proceed in a manner that affords the parties an opportunity to enhance their relationship regardless of whether a charge warrants a full investigation and issuance of a complaint or a dismissal letter. This policy encourages the parties to resolve their problems at the earliest stage possible after the filing with a third party. This policy will be evaluated to determine its effectiveness on a recurring basis.
Pursuant to the Federal Service Labor-Management Relations Statute, and the Authority and General Counsel implementing regulations, the Regional Directors are charged with investigating unfair labor practice charges to the extent they determine necessary. Regional Directors also are charged with assisting the parties in resolving the dispute giving rise to the charge throughout all stages of the process.
The Office of the General Counsel customer survey and survey on its facilitation, intervention, training and education programs reveals that the parties are interested in alternative case processing techniques which utilize an interest based approach and result in an early resolution of disputes while further enhancing the parties' relationship. This policy establishes criteria and conditions which allow all the Regional Directors to exercise their discretion in the same manner when deciding whether an alternative case processing technique should be undertaken by applying the same criteria in making those decisions.
Intervention is an alternative case processing technique which affords the Regions the opportunity to assist the parties in resolving the dispute underlying the charge rather than initially obtaining evidence and positions on the merits of the charge. If the intervention efforts do not result in a resolution of the dispute, the charge is then investigated, evidence and positions obtained and a determination on the merits rendered by the Regional Director.
Regional Directors will determine whether to offer intervention as an alternative case processing technique to the Charging and Charged Parties by applying the following seven criteria:
1. NUMBER OF PENDING CHARGES INVOLVING THE PARTIES
Is there a block of charges filed within the same time frame involving the parties?
Often the filing of a block of charges between the same parties within a short time frame is an indication that the dispute arises from a lack of communication and understanding between the parties rather than a legal dispute over statutory rights and obligations. This is one factor the Regional Directors will examine to determine whether to offer intervention as an alternative case processing technique.
2. AGREEMENT OF THE PARTIES TO PARTICIPATE
Do both parties agree to participate in an intervention?
A prerequisite to assisting the parties in resolving the dispute underlying the charge is the agreement of both parties to participate in an intervention. The Office of the General Counsel will not suspend an investigation and facilitate resolution of the dispute unless both parties agree to an intervention as the initial course of action.
3. COMMITMENT TO THE PROCESS AND AUTHORITY TO RESOLVE THE ISSUES
Are both parties committed to resolving their dispute and will both parties send representatives who are empowered to resolve the underlying dispute?
Another prerequisite to assisting the parties in resolving the dispute underlying the charge is the commitment of both parties to attempt to resolve the dispute and the empowerment of representatives who are authorized to resolve the matter. The Office of the General Counsel will not suspend an investigation and facilitate resolution of the dispute unless both parties are committed to attempting to resolve the dispute and send empowered representatives to the intervention session.
4. TYPE OF DISPUTE
What is the nature of the basis of the charge(s)?
Some charges concern institutional and relationship issues, such as the duty to bargain and the duty to furnish information, while other charges are more focussed on individual statutory rights to engage in protected activity. The Regional Directors will examine the type of dispute and whether the dispute concerns a relationship matter as opposed to a legal issue in determining whether to offer intervention as an alternative case processing technique.
Similarly, some disputes are isolated in nature and others are more reoccurring. The Regional Director will examine whether the dispute is ongoing and represents an inability to resolve problems without assistance in deciding whether to offer intervention as an alternative.
5. EXPERIENCE OF THE PARTIES
Are the parties experienced in Federal sector labor-management relations?
Based on changes in union leadership and in agency management, the degree of experience of the parties varies. Intervention may be a helpful technique to educate the parties on their various rights and responsibilities under the Statute, as well introduce alternative dispute resolution techniques to afford the parties an alternative manner in which to resolve their disputes without the need for a third party. The Regional Directors will consider the experience of the parties when determining whether to offer intervention as an alternative case processing technique.
6. RIPENESS OF THE DISPUTE FOR RESOLUTION
Does the dispute lend itself to resolution within a reasonable period of time?
Some disputes are not ripe for resolution because of the necessity of having to wait for some future occurrence before the parties are willing or able to resolve the matter. For example, a union may chose not to resolve a matter until after a election of new officers. Similarly, an agency may not be in a position to resolve a matter until a new manager or labor relations adviser scheduled to join the agency joins the management team. In other situations, the parties may be unable to resolve the matter because of some event or force over which they have no control, such as an order from a higher level in the agency or union hierarchy. The Regional Directors will consider whether the dispute is ripe for resolution in determining whether to offer intervention as alternative approach to the charge.
7. OFFICE OF THE GENERAL COUNSEL ABILITY TO PROVIDE FOLLOW-UP
Can the Office of the General Counsel provide requested follow-up services to the parties?
Sometimes, after a successful intervention, the parties jointly request the Office of the General Counsel to continue to provide support to the parties' improving relationship. This could constitute a request for such services as interest based problem solving training, alternative dispute resolution design, or partnership facilitation. The Regional Directors will consider the ability of the Office of the General Counsel to provide these services when deciding whether to offer intervention as an option to the parties.
Office of the General Counsel employees engaging in intervention activities to assist the parties in resolving disputes underlying unfair labor practice charges will fully explain and disclose the role of the Regional Office agent. An intervention should not proceed unless both parties accept that role.
The Agent will fully explain that the purpose of the intervention is to resolve the underlying dispute without determining the merits of the charge. The role of the Agent is to assist the parties in that endeavor by facilitating an interest based problem solving approach. The intervention is a form of alternative dispute resolution which allows the parties an environment to use an interest based approach to resolve their dispute. Since the merits of the charge are not relevant to the intervention, the Agent will further clearly explain that no evidence on the unfair labor practice charge will be gathered during the intervention. Although some facts surrounding the dispute, of necessity, will probably be disclosed, no evidence will be received by the Agent. Similarly, no positions of the parties on the merits of the charge will be solicited or received by the Agent. The Agent will not make any notations in the Regional Office case file concerning the merits of the case or any other matters discussed during the intervention.
The Agent should fully explain that if the parties are unable to resolve the dispute, the Region will conduct a full investigation on the merits of the charge and process the case as if there had been no intervention efforts. In essence, the intervention is another form of resolution and the information disclosed during the intervention will be treated in the same manner as information disclosed and positions taken during settlement discussions. The parties should understand that the investigation would be separate and distinct from any resolution or intervention efforts. The parties should also be informed that if the intervention does not result in resolution of the dispute and an investigation on the merits is required, the Regional Director will strive to assign another Regional Office agent to the investigation, taking into consideration the parties' interests, although it is possible, but not probable, that the same Agent may be involved. In the limited situations where there is actual litigation of the dispute in an unfair labor practice process, the Region will strive to ensure that any Regional Office attorney facilitating the intervention will not be assigned to the trial.
The Agent should obtain the parties' agreement to basic groundrules. The parties must agree that the intervention will be viewed as a resolution discussion and that accordingly, there will be no attribution of what is said during the session. For example, the union will not publish a report in the union newsletter of what a particular management official or management in general said during the session and management will not discuss with a local newspaper reporter what a particular union official or the union in general said during the session. The Agent also should obtain the parties' agreement that neither party will take any reprisal for any statements made during the session. All participants are expected to conduct themselves within the range of acceptable behavior at the session. The parties should agree that no unfair labor practice charges, grievances etc. will be filed based on any occurrences at the session. The parties must similarly agree that "what's said in the room stays in the room." This is a continuation of the no attribution - no reprisal agreement so that all participants feel free to express their interests and honestly attempt to resolve the dispute.
Interventions should be conducted using interest based principles with both parties in the same room at the same time. "Shuttle mediation" and "party caucuses" to develop positions should be avoided. Rather, the parties should identify the interests which need to be satisfied to result in resolution of the dispute and the withdrawal of the charge(s).