COMMENTS BY PETER BROIDA

CONCERNING NOTICE OF PROPOSED RULEMAKING

FEDERAL LABOR RELATIONS AUTHORITY

FEBRUARY 1, 2010

5 CFR PART 2423

I take this opportunity to respond to the Federal Register notice of February 1, 2010, calling for comments on the proposed rulemaking affecting 5 CFR 2423.

A.         Settlement

First, I commend the Authority for reinstating its prior approach to settlement of ULP charges at the precomplaint stage.

Second, I suggest to the Authority that it modify its proposed rulemaking to expand rather than perpetuate pre-existing practice.

I recommend to the Authority that it make mandatory settlement discussions at the precomplaint stage unless the regional director concludes that the ULP charge on its face is either untimely or does not state a violation of the law within the Authority’s ULP jurisdiction.

Mandatory settlement discussions at the ULP intake stage would parallel efforts by agencies to utilize ADR during the EEO counseling stage, which is akin to the ULP charge stage of the ULP process.  Mandatory ADR during the EEO counseling stage has proved a significant benefit in resolving workplace disputes early and at minimum cost to the parties and, ultimately, to the adjudicator entrusted with the matter if early settlement is not achieved.

In order to avoid the appearance of prejudment of a case, I would suggest that early ADR efforts be undertaken by an ADR specialist at each region (or perhaps at the FLRA central office) so that the conversations are confidential (to the extent that confidential information provided to the ADR specialist will not find its way into the process of assessing the merit of the ULP charge or into the ULP litigation itself should the case go to complaint).

B.         ULP Charge Filing Requirements

I suggest that 5 CFR 2423.4(f) be clarified to plainly state that documents supporting the ULP charge need not be served upon the responding party and that the only document that must be served upon the responding party is the ULP charge form itself.

I thank you for your consideration of these comments, and I wish you well in your efforts to redesign the processes of the FLRA.

Peter B. Broida

Practitioner

February 11, 2010