Quality in Unfair Labor Practice Investigations Policy
TO: Regional Directors
FROM: Joe Swerdzewski, General Counsel
SUBJECT: Quality in Unfair Labor Practice Investigations Policy
This policy was developed after considering the recommendations of the Quality Work Group (which consists of Headquarters and Regional Office managers and representatives selected by the Union of Authority Employees), 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 Scope of Investigations Policy which also was issued this date. This quality policy applies to all Regional Office investigations of unfair labor practice charges.
This policy sets forth the standards of quality which each investigation will meet, regardless of its type and extent. All Regional Directors will ensure that each unfair labor practice investigation conforms as closely as possible to the standards discussed in this policy. Each Region is responsible for developing and implementing procedures which will:
- ensure that investigations and decision-making are conducted in a timely and efficient manner;
- enable all Regional Office employees to understand the importance of maintaining a high level of quality in investigations and to understand the standards for quality in the Office of the General Counsel;
- identify any assistance (such as additional training) which Office of the General Counsel employees may require to meet quality standards;
- assess the quality of the investigation in every unfair labor practice case;
- ensure that applicable quality standards have been met before taking any dispositive action; and
- provide that high levels of quality continue to be maintained in all investigations.
This policy also shifts the review of quality from the appeal stage at the end of the process to the Regional Offices at the beginning of the investigative process and prior to a Regional Director determination on the merits. Under this policy, the Regions will develop and implement procedures in the Regions to ensure that these quality standards have been met in each case prior to a Regional Director decision on the merits. This policy will be evaluated to determine its effectiveness on a recurring basis, by reviewing the quality of Regional Office investigations and by considering the views of our customers.
Every participant in the investigation of an unfair labor practice charge has a right to expect that the investigation undertaken will meet certain basic standards of quality, even though the investigatory method and the scope of all investigations need not be the same for each particular charge. Every participant also has a right to expect that those standards of quality will be the same, regardless of which Regional Office may be conducting the investigation. This policy is intended to establish the standards of quality for investigations which will be followed throughout all Regional Offices.
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 and determining whether the evidence establishes violations of the Statute. Regional Directors also are charged with assisting the parties in resolving the dispute giving rise to the unfair labor practice charge throughout all stages of the process.
The employees of the Authority's Regional Offices are highly regarded for their experience, ability and integrity. The General Counsel's customer survey reveals that nearly two thirds of all those customers responding gave high ratings to the professionalism of Regional employees. The Office of the General Counsel has always relied upon the competence and dedication of these employees to maintain the high quality of its investigations. This policy establishes uniform standards, available to the public, for achieving that quality.
These are the essential quality standards which every investigation should meet:
- Regardless of the investigative methodology, every investigation will meet the quality standards.
- The investigation will obtain the best possible evidence.
- All evidence will be relevant and assist the Regional Director in reaching a proper disposition of the case.
- The case file will contain all relevant evidence and information discovered or submitted during the investigation.
- All participants in the investigation will be treated fairly and equitably and the General Counsel's investigative methods will be explained to the participants.
- Charges will be processed as expeditiously as possible.
1. REGARDLESS OF THE INVESTIGATIVE METHODOLOGY, EVERY INVESTIGATION WILL MEET THE QUALITY STANDARDS
Regional Directors have discretion to utilize a variety of techniques to investigate unfair labor practice charges. However, regardless of which investigative technique is utilized, the quality standards in this memorandum remain applicable. Investigative techniques may include: the taking of affidavits and collection of documentary evidence in person; the taking of a sworn affidavit through the use of a telephone interview; the use of sworn interrogatories transmitted to and from the Region by mail; the use of unsworn questionnaires transmitted to and from the Region by mail; and the use of letters from the Regional Office confirming information obtained orally from a party.
2. THE INVESTIGATION WILL OBTAIN THE BEST POSSIBLE EVIDENCE
In investigating unfair labor practice charges, the Regions may obtain a variety of types of evidence and information: sworn testimonial evidence; documentary evidence; unsworn written testimonial information; unsworn oral information, and position statements and legal arguments. The Regions will explain to the participants why various types of evidence and information are appropriate to the investigation. Evidence obtained from Charged Parties should meet the same standards as evidence obtained from Charging Parties.
3. ALL EVIDENCE WILL BE RELEVANT AND ASSIST THE REGIONAL DIRECTOR IN REACHING A PROPER DISPOSITION OF THE CASE
All evidence, whether documentary or testimonial, should be relevant. The test for determining relevance during the investigation is whether it can reasonably be expected to assist the Regional Director in reaching a proper disposition of the case. Thus, otherwise significant hearsay statements may be accepted during the investigation even though their use would be limited at trial. Similarly, there is no obligation to accept evidence which clearly makes no independent contribution to an understanding of the case or its resolution or which merely duplicates evidence already obtained.
4. THE CASE FILE WILL CONTAIN ALL RELEVANT EVIDENCE AND INFORMATION DISCOVERED OR SUBMITTED DURING THE INVESTIGATION
The case file should contain all relevant documentary and testimonial evidence discovered and submitted during the investigation.
5. ALL PARTICIPANTS IN THE INVESTIGATION WILL BE TREATED FAIRLY AND EQUITABLY AND THE INVESTIGATIVE PROCESS WILL BE EXPLAINED TO THE PARTICIPANTS
The object of an unfair labor practice investigation is not only the formal disposition of a charge, but also assisting the parties in resolving their differences through cooperation rather than litigation. It is critical that the parties have faith in the investigative process, that they perceive the investigating agent as neutral and impartial, and that they accept the investigation as fairly identifying their interests and their views of the case. The manner in which the investigation is conducted therefore is as important as the evidence it obtains.
To achieve this standard, all investigating agents should
- clarify, whenever appropriate, the purposes and procedures of the investigation;
- answer any questions about how the Region has decided to conduct the investigation;
- avoid any impression of coercing a participant toward a particular result;
- give no indication of favoring one party's position over that of another; and
- conform to appropriate ethical standards of behavior at all times.
6. CHARGES WILL BE PROCESSED AS EXPEDITIOUSLY AS POSSIBLE.
Unfair labor practice charges should be processed as expeditiously as possible, taking into consideration the resources available to the Regional Office and the number of pending cases.