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ASSOCIATION OF LABOR RELATIONS AGENCIES
THE FINAL REPORT OF
THE NEUTRALITY PROJECT
John E. Higgins, Jr., Chair
Deputy General Counsel
National Labor Relations Board
Professor Martin H. Malin, Reporter
Professor and Director
Institute for Law and the Workplace
Chicago-Kent College of Law
Illinois Institute of Technology
Robert Anderson, General Counsel, New Jersey PERC
John E. Higgins, Jr., Deputy General Counsel,
National Labor Relations Board
Professor Martin H. Malin, Chicago-Kent College
Dan Nielsen, Mediator, Wisconsin Employment
Reg Pearson, Director, Labour-Management
Programs, Ontario Ministry of Labour
Marvin Schurke, Executive Director, Washington
Public Employment Relations Commission (Retired)
Robert Anderson, General Counsel, New Jersey PERC
Bruce Archibald, Vice Chair, Nova Scotia Labour
Warren Edmondson, Chair, Canada Industrial
Marlene Gold, Chair, New York City Office of
Mary Johnson, General Counsel, National Mediation
Starr Knudson, Mediator, Washington Public
Employment Relations Commission
Dan Nielsen, Mediator, Wisconsin Employment
Arthur Pearlstein, General Counsel, Federal
Mediation and Conciliation Service
Reg Pearson, Director, Labour-Management
Programs, Ontario Ministry of Labour
Arnold Powers, Regional Director, Federal
Mediation and Conciliation Service - Canada
Marilyn Glenn Sayan, Chair, Washington Public
Employment Relations Commission
John Truesdale, National Labor Relations Board
Special Contributors to Chapter Four -
Scot Beckenbaugh, Federal Mediation and
Conciliation Service - US
Rick Curreri, New York Public Employment
Larry Gibbons, National Mediation Board
Paul Roose, California State Mediation and
Joel Weisblatt, NY-NJ Port Authority Employment
Luke Glisan, Chicago-Kent College of Law, Class of 2006
Acknowledgements and Dedication
Neutrality Project was made possible by the generous support of the member
agencies of ALRA, which allowed staff time and resources to be devoted to the
process of drafting and considering the Report, and lent collective expertise to
the content of the Report. The United States Federal Mediation and
Conciliation Service distinguished itself through the provision of not only
expertise, but critically needed grant support at the beginning of the process.
to agency support, three “outsiders” also made significant contributions to the
Project. ALRA is particularly grateful to Professor Martin Malin, Director of
the Institute for Law and the Workplace at the Chicago Kent College of Law, for
his scholarship, counsel and skilled assistance as the Reporter for the
Project. It is not an exaggeration to say that it would not have been
accomplished without his involvement. ALRA also extends its thanks to
Professor Malin’s Research Assistant, Luke Glisan, of the Kent Law School class
of 2006, for his invaluable assistance. The third individual is an “outsider”
only in the most technical sense. John Truesdale retired in 2001 after a
distinguished career as a staff attorney, Executive Secretary, Member, and Chair
of the National Labor Relations Board. John is the ideal that this Project
seeks to capture in its descriptions of the impartial public servant, and ALRA
is pleased to dedicate this Report in honor of John Truesdale’s long and
Table of Contents:
Preface……………………………………………………………………………………… page 6
Chapter 1 – Foundations of Neutrality……………………………………………… page 8
Section 1: IMPARTIALITY IS THE MOST
ESSENTIAL ATTRIBUTE OF A LABOR RELATIONS AGENCY
Section 2: AN IMPARTIAL LABOR RELATIONS
AGENCY SEEKS TO EFFECTUATE THE PUBLIC POLICY EMBODIED IN THE LEGAL
AUTHORIZATION FOR COLLECTIVE BARGAINING WITHIN THE LIMITS DEFINED BY THAT
AUTHORIZATION AND WITH STRICT IMPARTIALITY AS TO THE OUTCOME OF ANY PARTICULAR
Section 3: REGARDLESS OF AGENCY STRUCTURE,
BOARD MEMBERS OR COMMISSIONERS ARE CHARGED WITH THE DUTY TO SERVE AS
STATESPERSONS RATHER THAN PARTISANS, TO EMBRACE THE LABOR-MANAGEMENT RELATIONS
PROCESS, TO OBSERVE RECUSAL STANDARDS, AND TO DECIDE DISPUTES WITH INTEGRITY,
FROM THE LEGITIMATE PERSPECTIVE OF THE AGENCY.
Section 4: LABOR RELATIONS AGENCIES SHOULD
NOT SHY AWAY FROM EXERCISING THEIR DISCRETION WITHIN THE CONSIDERABLE ROOM FOR
INTERPRETATION ENTRUSTED TO THEM, BUT SHOULD DO SO WITHIN THE BOUNDS OF THEIR
Chapter 2 – Independence………………………………………………………………… page 14
Section 1: AGENCY OFFICIALS AND PERSONNEL
OWE THEIR ALLEGIANCE TO THE ENABLING AUTHORITY ON WHICH THE AGENCY IS FOUNDED,
AND MUST CARRY OUT THEIR FUNCTIONS INDEPENDENTLY OF POLITICAL INFLUENCES THAT
WOULD DISTORT THAT ALLEGIANCE, REGARDLESS OF WHETHER THEY ARE ADJUDICATING,
ADMINISTERING, INVESTIGATING OR MEDIATING.
Section 2: THE IDEAL AGENCY APPOINTEE IS
SELECTED FOR KNOWLEDGE AND EXPERIENCE IN LABOR RELATIONS OR CAPACITY TO ACQUIRE
EXPERTISE, AND NOT FOR IDEOLOGICAL PURITY OR POLITICAL LOYALTY.
Section 3: ADJUDICATIVE AGENCIES ARE
QUASI-JUDICIAL IN NATURE, AND MUST OPERATE
WITH A LEVEL OF INDEPENDENCE COMPARABLE TO THAT OF THE JUDICIARY.
Section 4: MEMBERS SHOULD STRIVE TO DECIDE
MATTERS BEFORE THEM IN A PRINCIPLED MANNER THAT PRESERVES THE INTEGRITY OF THE
AGENCY AS A WHOLE.
Section 5: AGENCY STAFFS HAVE A DUTY TO
ACT IN A PRINCIPLED MANNER AND PRESERVE THE AGENCY’S INTEGRITY, BUT MUST DO SO
IN A MANNER THAT GIVES DUE DEFERENCE TO THE ROLE OF THE AGENCY’S POLITICAL
Section 6: MEDIATION AGENCIES HOUSED IN
EXECUTIVE DEPARTMENTS OR MINISTRIES NEED NOT OPERATE COMPLETELY AT ARMS LENGTH
FROM SECRETARIES, MINISTERS OR OTHER DEPARTMENT HEADS, BUT MUST STILL ENSURE
THAT THE AGENTS CARRYING OUT THE AGENCY’S FUNCTIONS
MAINTAIN THE INDEPENDENCE NECESSARY TO PRESERVE AGENCY INTEGRITY.
Section 7: AGENCIES SHOULD NOT TAKE
IDEOLOGICAL POSITIONS ON PENDING OR PROPOSED LEGISLATION BUT MAY PROVIDE
TECHNICAL ADVICE AND MAY ADVISE THE
LEGISLATURE ON THE ADEQUACY OF FUNDING AND THE CONSEQUENCES OF INADEQUATE
FUNDING ON MANDATED AGENCY ACTIVITIES.
Chapter 3 – Conflicts and the Appearance of Conflicts of Interest ……………
1: ETHICS AND IMPARTIALITY ARE AFFIRMATIVE VALUES WHICH AGENCY PERSONNEL
MUST COMMUNICATE IN EVERYTHING THEY DO. THE AFFIRMATIVE COMMUNICATION OF THESE
VALUES, THE ON-GOING ACCEPTABILITY OF THE AGENCY AND ITS FULFILLMENT OF ITS
MISSION CRITICALLY DEPEND ON AVOIDING CONFLICTS OF INTEREST AND THE APPEARANCE
OF CONFLICTS OF INTEREST.
2: AGENCY PERSONNEL SHOULD REFRAIN FROM ENGAGING IN EX PARTE CONTACTS OR
GIVING THE APPEARANCE OF EX PARTE CONTACTS CONCERNING MATTERS PENDING BEFORE
3: AGENCY PERSONNEL SHOULD DISCLOSE MATTERS THAT MIGHT LEAD A REASONABLE
PERSON TO INQUIRE FURTHER.
4: AGENCY PERSONNEL MUST RECUSE THEMSELVES WHENEVER THEY ARE UNABLE TO
SAY WITH CONFIDENCE THAT THEY CAN ACT FAIRLY AND IMPARTIALLY IN A PARTICULAR
AGENCY PERSONNEL MUST RECUSE THEMSELVES WHENEVER THEY KNOW THAT THEIR
IMPARTIALITY MAY REASONABLY BE QUESTIONED.
6: AGENCY PERSONNEL MUST RECUSE THEMSELVES WHENEVER THEY, A CLOSE
RELATIVE, A MEMBER OF THEIR HOUSEHOLD OR A CLOSE FRIEND HAVE OR COULD HAVE AN
INTEREST THAT COULD BE DIRECTLY AFFECTED BY THE PROCEEDING.
7: AGENCY PERSONNEL MUST RECUSE THEMSELVES FROM ANY CASE WHERE THEY HAVE
APPLIED FOR OR ARE OTHERWISE BEING CONSIDERED FOR EMPLOYMENT WITH A PARTY OR THE
LAW FIRM OR OTHER REPRESENTATIVE OF A PARTY IN THE PROCEEDING.
8: AGENCY PERSONNEL MUST RECUSE THEMSELVES FROM ANY MATTER IN WHICH THEY
WERE INVOLVED AS A PRINCIPAL, REPRESENTATIVE OR WITNESS PRIOR TO JOINING THE
AGENCY, BUT AGENCY PERSONNEL ARE NOT AUTOMATICALLY OR PERMANENTLY DISQUALIFIED
FROM ACTING IN MATTERS INVOLVING THE INDIVIDUAL’S FORMER EMPLOYER OR CLIENT OR
BECAUSE A PARTY IS REPRESENTED BY THE INDIVIDUAL’S FORMER LAW FIRM.
9: AGENCY PERSONNEL WHO CONCURRENTLY SERVE AS ADVOCATES MUST RECUSE
THEMSELVES FROM ANY CASE IN WHICH THEIR EMPLOYER OR CLIENT IS A PARTY AS WELL AS
FROM ANY CASE WHICH HAS A DIRECT EFFECT ON THEIR EMPLOYER OR CLIENT’S PENDING
MATTERS. HOWEVER RECUSAL IS NOT MANDATED MERELY BECAUSE THEIR EMPLOYERS OR
CLIENTS WILL BE BOUND BY THE PRECEDENT ESTABLISHED IN A CASE.
10: AGENCY PERSONNEL REQUIRED TO RECUSE THEMSELVES MUST DO SO AS SOON AS
POSSIBLE AFTER THEY BECOME AWARE OF CIRCUMSTANCES THAT WOULD LEAD A REASONABLE
PERSON TO QUESTION THEIR IMPARTIALITY, REGARDLESS OF THE STATE OF THE PROCEEDING
11: WHERE DOUBTS EXIST CONCERNING WHETHER A PARTICULAR AGENCY EMPLOYEE OR
OFFICIAL SHOULD RECUSE, THE MATTER SHOULD BE REFERRED TO AN AGENCY OFFICIAL
OTHER THAN THE ONE WHOSE RECUSAL HAS BEEN SOUGHT.
12: THE DOCTRINE OF NECESSITY MAY ALLOW AGENCY PERSONNEL TO PARTICIPATE IN
MATTERS IN WHICH THEY WOULD OTHERWISE BE RECUSED WHERE THERE IS NO OTHER CHOICE,
BUT THE DOCTRINE SHOULD BE INVOKED SPARINGLY AND WITH SAFEGUARDS AGAINST BIAS OR
THE APPEARANCE OF BIAS TO THE EXTENT AVAILABLE.
13: AGENCIES MAY ESTABLISH TIME LIMITS FOR PARTIES TO OBJECT TO PARTICULAR
PERSONNEL PARTICIPATING IN THEIR CASES. PARTIES WHO FAIL TO COMPLY WITH SUCH
TIME LIMITS WITHOUT GOOD CAUSE WAIVE THEIR OBJECTIONS. PARTIES MAY ALSO
EXPRESSLY WAIVE THEIR OBJECTIONS. EVEN WHERE PARTIES HAVE WAIVED THEIR
OBJECTIONS, AGENCY PERSONNEL REMAIN OBLIGATED TO RECUSE THEMSELVES WHENEVER THEY
CANNOT SAY WITH CONFIDENCE THAT THEY CAN ACT FAIRLY AND IMPARTIALLY.
14: TO AVOID GIVING AN APPEARANCE OF PREJUDGMENT, AGENCY PERSONNEL SHOULD
NOT MAKE PUBLIC STATEMENTS ABOUT MATTERS PENDING BEFORE THEM.
Chapter 4 – Special Considerations Regarding Mediation……………………… PAGE
1: THE MEDIATOR HAS AN AFFIRMATIVE OBLIGATION TO DISCLOSE ACTUAL OR
POTENTIAL CONFLICTS OF INTEREST PRIOR TO COMMENCING THE MEDIATION PROCESS. A
MEDIATOR MUST DECLINE THE ASSIGNMENT IF A CONFLICT WOULD PREVENT HIS OR HER
EVEN-HANDED PURSUIT OF A SETTLEMENT ON TERMS ACCEPTABLE TO BOTH PARTIES.
2: THE MEDIATOR’S ROLE NECESSARILY INCLUDES PRIVATE CONVERSATIONS WITH
PARTIES AND PROTECTION OF INFORMATION PROVIDED BY PARTIES ON A CONFIDENTIAL
BASIS. A MEDIATOR SHOULD NOT BREACH THE CONFIDENCES OF A PARTY UNLESS
SPECIFICALLY REQUIRED TO DO SO BY STATUTE, A FINAL COURT ORDER, OR A FORMAL
DIRECTIVE OF THE AGENCY EMPLOYING THE MEDIATOR.
3: THE MEDIATOR’S EFFORTS TO PERSUADE THE PARTIES TO REACH AGREEMENT MAY
NOT EXTEND TO MAKING MATERIAL MISSTATEMENTS OF FACT OR LAW.
4: MEDIATORS SHOULD NOT ALLOW THEIR PERSONAL VALUES OR OPINIONS TO
INTERFERE WITH REACHING AGREEMENT ON TERMS ACCEPTABLE TO THE PARTIES. MERE
DISAGREEMENT WITH THE OBJECTIVES OF ONE OR BOTH PARTIES DOES NOT EXCUSE THE
MEDIATOR FROM SEEKING TO FINALIZE AN AGREEMENT.
MEDIATORS OPERATE UNDER ENABLING AUTHORITIES WHICH GENERALLY ENDORSE THE PURSUIT
OF VOLUNTARY AGREEMENTS ON TERMS ACCEPTABLE TO BOTH PARTIES. MEDIATORS ARE
GENERALLY FREE TO FACILITATE ANY PROPOSAL THE PARTIES MAY CHOOSE TO ADVANCE.
MEDIATORS ARE NOT RESPONSIBLE FOR PROVIDING LEGAL ADVICE TO THE PARTIES OR FOR
INTERPRETING THEIR ENABLING AUTHORITIES OR OTHER PROVISIONS OF LAW. AGENCIES
SHOULD ESTABLISH POLICIES GUIDING MEDIATORS, WHERE A MEDIATOR KNOWS THAT THE
TERMS DESIRED BY THE PARTIES ARE CLEARLY PROHIBITED BY THE ENABLING AUTHORITY.
5: AS MEMBERS OF THE BROADER LABOR RELATIONS COMMUNITY, MEDIATORS MAY
PARTICIPATE IN THE PROFESSIONAL ACTIVITIES OF THAT COMMUNITY TO BETTER EXPRESS
THEIR UNDERSTANDING OF LABOR RELATIONS AND TO MAINTAIN ONGOING RELATIONSHIPS
WITH PARTIES THAT FURTHER THE OVERALL GOAL OF POSITIVE LABOR RELATIONS.
HOWEVER, MEDIATORS, LIKE ALL OTHER AGENCY PERSONNEL, SHOULD AVOID SOCIAL OR
PERSONAL INTERACTIONS THAT WOULD CAUSE OTHERS TO QUESTION THEIR IMPARTIALITY.
Appendix 1 – FMCS/ALRA Code of Professional Conduct for Labor Mediators… PAGE
The Association of Labor Relations Agencies (ALRA) is an organization of local,
state, provincial and national government agencies that are responsible for
administering labor-management relations systems and services. ALRA promotes
cooperative efforts to maintain high professional standards, to improve
employer-employee relationships, to foster the peaceful resolution of
labor-management disputes, and to facilitate the exchange of information
regarding the administration and delivery of agency services.
Neutrality Project pools the collective experience and expertise of ALRA’s
agencies on the subject most critical to their effectiveness – their neutrality.
The success of ALRA agencies depends on the public and the parties they serve
having confidence in the fairness of the process and the integrity of the
agencies operate under a wide range of statutes, executive orders, and
regulations, described collectively in this volume as “enabling authorities”.
They generally declare a public policy favoring employee free choice with
respect to representation for the purpose of collective bargaining, and
provide frameworks for that representation when employees so choose. A hallmark
of enabling authorities that have been successful in preventing or minimizing
labor-management disputes over the long term is that they create dispute
resolution mechanisms which are themselves neutral - rather than guaranteeing
success to either labor or management - and delegate authority to specialized
bodies (agencies) to administer those mechanisms. The “neutral third party”
terminology sometimes heard is something of a misnomer to the extent it suggests
that the ALRA agency is itself a party to any particular dispute between labor
and management parties. Depending on their enabling authorities,
ALRA agencies exercise quasi-judicial functions in adjudicating labor-management
disputes, conduct process-neutral procedures that enable employees to express
their choices on their representation, and facilitate collective bargaining
processes by providing or enabling mediation and arbitration services.
politically appointed members of ALRA agencies and their career staffs share a
common purpose in carrying out the will of the people as expressed in their
respective enabling authorities. They are dedicated to advancing the processes
established by those enabling authorities, notwithstanding their
professional backgrounds prior to assuming their roles within the agency.
They are neither pro-union nor pro-management. Their obligation is to be
impartial, and to appear to be so. Theirs, however, is not an obligation to
remain still. Agency leadership and staff play an active role in mediation,
investigation, administration or adjudication of labor-management disputes, and
enforcement of regulatory mandates. They serve to protect and advance the
process for resolving labor relations disputes without having (and
without being perceived as having) a stake in the outcome. Their duty is to
always act in accordance with the letter and spirit of the agency’s enabling
authority, without bias toward or against either side in the particular dispute.
balanced approach to the law and to the parties is the subject of the Neutrality
Project. The Project represents the combined efforts of scores of concerned
public servants who understand that the effective administration of enabling
authorities in the highly-charged as field of labor-management relations
requires that the parties respect the integrity of government representatives.
We at ALRA
see the Neutrality Project as a means of authoritatively restating the essential
principles and practices on this critical subject. We intend to provide
guidance for ALRA agencies and their personnel in carrying out their missions
and this document should be particularly helpful in the orientation of new
appointees and staff members. We also hope that our work product will be useful
to parties and practitioners, to legislators and policymakers, to students and
scholars, and to the public.
remembering that this a restatement of principles, and not a handbook for agency
operations. There are many and varied means of putting these principles into
practice, and the fact that a given agency or agency representative uses a
different approach to a problem than that described here is not itself
suggestive of an improper practice or a lapse in neutrality.
submitted, January 1, 2008.
Chapter 1 - Foundations of Neutrality
Section 1: IMPARTIALITY IS THE MOST ESSENTIAL
ATTRIBUTE OF A LABOR RELATIONS AGENCY
It is likely that disputes between labor and management have existed in the
workplace since the first employer hired the first employee, and that there
will always be a potential for disputes between labor and management.
Modern collective bargaining systems organize, channel, and regulate those
inevitable conflicts within an obligation of good faith and principled
standards, and with balanced rights that are intended to reduce or minimize
disruptions of the economy and public services for the benefit of the
Labor-management relations is one of the most highly-charged areas of human
activity and government regulation. The old song verse "Which Side
are You On" evidences how clearly and strongly views are held about labor
relations disputes. Parties involved in these disputes are seldom
dispassionate about their positions, or about adverse decisions by
A government agency charged with assisting in the resolution of
labor-management disputes must not have or be perceived as having a stake in
the outcome of its proceedings. At the same time, the agency has
responsibility for protecting the integrity of the dispute resolution
mechanisms associated with the collective bargaining process, regardless of
whether that the specific process being invoked is mediation, conciliation,
fact-finding, investigation, administration, adjudication or enforcement.
It is for this reason that the appropriate image for the agency is best
characterized as one of impartiality. The agency’s role must be marked by
clearly-communicated and unwavering fidelity to the objectives and
constraints of the enabling authority and by principled decision making.
Section 2: AN IMPARTIAL LABOR RELATIONS AGENCY SEEKS
TO EFFECTUATE THE PUBLIC POLICY EMBODIED IN THE LEGAL AUTHORIZATION FOR
COLLECTIVE BARGAINING WITHIN THE LIMITS DEFINED BY THAT AUTHORIZATION AND
WITH STRICT IMPARTIALITY AS TO THE OUTCOME OF ANY PARTICULAR DISPUTE.
Labor relations agencies administer a public policy that generally favors
allowing employees to choose whether they desire collective representation,
and promotes having a healthy collective negotiations process. ALRA
agencies foster the processes of employee free choice and of collective
bargaining where employees have opted for representation. They also foster
an understanding and acceptance of these processes among constituents and
the public. In so doing, agencies must act within the limits prescribed by
their enabling authorities, and must be scrupulously neutral as to the
results reached in negotiations or adjudications.
There is an inherent and unavoidable tension between an agency’s role as
protector of the legally authorized processes for resolving disputes and its
need to be impartial with respect to the outcomes resulting from
these processes. An agency’s reputation for impartiality and the
effectiveness of the collective bargaining system depend on how the agency
navigates that tension.
An agency’s duty is to aid in the resolution of labor disputes, and
agency personnel should not be paralyzed into inaction out of a fear of
being perceived as non-neutral. Agency personnel must, however, be careful
not to cross the line between assisting the process and assisting particular
Agency personnel must be mindful, in carrying out their roles, that they are
part of a larger governmental body that plays a pivotal role in effectuating
the public policy embodied in the agency’s enabling authority. Agency
personnel must carry out their roles in a principled manner, when viewed
from the perspective of the agency as a whole, including the legal
framework, regulations, guidelines, protocols and jurisprudence, regardless
of any individual’s personal or ideological proclivities.
A public sector collective bargaining statute prohibits strikes and related
job actions and provides for nonbinding fact-finding as a final step in its
impasse resolution procedures. In negotiations for a first contract, an
employer offered terms that an objective observer would view as extremely
harsh. Mediation did not produce much movement and the union demanded
fact-finding. The fact finder concluded that the bases for many of the
employer’s proposals were faulty and recommended settlement close to the
union’s proposals on many issues. Nevertheless, the employer refused to
move off its pre-fact-finding positions and unilaterally implemented its
final pre-fact-finding offer.
Such a case sharply illustrates the need to safeguard the collective
bargaining process with strict impartiality regarding the outcomes of
that process. The need to safeguard the process is greatest where the
process lacks a final method of impasse resolution, such as a right to
strike or a right to proceed to interest arbitration. If the agency
determines that the employer did not bargain in good faith (i.e.,
that it merely went through the motions with no intent to reach an
agreement), then the agency should not shy away from finding the employer to
have violated the law. On the other hand, the agency should not find a
violation merely because it does not agree with the bargaining proposals
made by the employer.
Section 3: REGARDLESS OF AGENCY STRUCTURE, BOARD
MEMBERS OR COMMISSIONERS ARE CHARGED WITH THE DUTY TO SERVE AS
STATESPERSONS RATHER THAN PARTISANS, TO EMBRACE THE LABOR-MANAGEMENT
RELATIONS PROCESS, TO OBSERVE RECUSAL STANDARDS, AND TO DECIDE DISPUTES WITH
INTEGRITY, FROM THE LEGITIMATE PERSPECTIVE OF THE AGENCY.
Labor relations agencies have a variety of structures, both as specified in
their enabling authorities, and as established by practice. Some
enabling authorities specifically designate one or more members as
representatives of employers, others as representatives of employees and
still others as representatives of the public. Other enabling authorities
are silent on such matters, but practices have evolved whereby an
equal number of members are selected from the ranks of employer and labor
advocates, usually with one or more additional members selected as
representatives of the public. To the same end, some enabling authorities
limit the number of members who may be associated with the same political
party. Still other agencies do not have a tri-partite structure or a
guarantee of balance, either by tradition or legal mandate. Regardless of
whether a board member or commissioner is appointed as a labor
representative, a management representative, or a member of a particular
political party, all members must carry out their roles in a principled
manner, viewed from the perspective of the agency as a whole, as discussed
in Section 2, supra.
The standards governing recusal from agency cases when there is a either an
actual conflict of interest or the appearance of a conflict of interest
differ among jurisdictions, but members must know and strictly observe the
standards in their jurisdiction. Members should seek guidance from agency
counsel when they are unsure how the standards apply in a particular
instance. Members must approach each case with open minds regardless of
their backgrounds or predispositions, ready to rule on each issue and to
use their valuable labor relations experience and expertise in a manner
consistent with the enabling authority that they are charged to uphold and
the facts of the case at hand in their full context. Their actions must be
taken deliberately in good faith in their capacities as members, rather than
as advocates for particular parties or ideologies.
To the extent that they can be achieved in a principled manner, unanimous
decisions further the acceptability of the agency’s decisions within the
community and promote the agency’s neutrality. Impartiality is measured
over time by the reality of that impartiality, and by the perceptions
of the parties and the public the agency serves.
A tri-partite labor relations agency has before it two charges filed by an
employee. One charge alleges that the union breached its duty of fair
representation by failing and refusing to process grievances protesting an
alleged denial of equal opportunities to work overtime and an alleged
failure to abide by negotiated procedures for promotions. The second charge
alleges that agents of the employer retaliated and discriminated against the
employee for filing the grievances. The record supports both: (1) a
finding that the union breached its duty of fair representation and
interfered with the employee’s efforts to pursue grievances, and (2)
that the employer retaliated and discriminated against the employee because
of his protected activity.
A politically expedient way for the agency to resolve this case would be for
the labor members to join with the neutral(s) in ruling against the employer
while the employer members join with the neutral(s) in ruling against the
union. Such an approach might allow the agency to reach the “right” result
while the labor and employer members appear to remain loyal to their
respective constituencies, but such an approach would be
inappropriate. Members are not accountable to the communities from which
they came. Rather, they are accountable to the enabling authority under
which the agency operates, to the labor and management communities jointly,
and to the public as a whole. Their obligation is to serve as agency
officials, not as advocates for particular partisans or ideologies. Joining
together in a unanimous decision ruling against both the employer and union
would further the acceptability of the agency’s decisions as a whole and,
over the long term, promote the agency’s impartiality and
Section 4: LABOR RELATIONS AGENCIES SHOULD NOT SHY
AWAY FROM EXERCISING THEIR DISCRETION WITHIN THE CONSIDERABLE ROOM FOR
INTERPRETATION ENTRUSTED TO THEM, BUT SHOULD DO SO WITHIN THE BOUNDS OF
THEIR LEGITIMATE AUTHORITY.
Labor relations agencies administer bodies of law that leave considerable
room for interpretation. Phrases such as “concerted activity for mutual aid
and protection” and “terms and conditions of employment” and "meet and
confer in good faith” paint with broad brushes, and require the
exercise of agency expertise and discretion in applying them to particular
fact patterns and issues. In Pattern Makers League v. NLRB, 473 U.S.
95, 116 (1985), Justice White emphasized the discretion afforded to
the National Labor Relations Board (NLRB) when he concurred in the Court’s
decision upholding the NLRB’s interpretation that an employee has an
absolute right to resign from membership in a labor organization, but
made clear that alternative interpretations by the NLRB would also have
received judicial deference:
The Board has adopted a sensible construction of §§ 7 and 8 that is not
negated by the legislative history of the Act. That Congress eliminated
from the bill under consideration a provision that would have made certain
restrictions on resignation unfair labor practices falls short of indicating
an intention to foreclose the Board’s reading. By the same token, however,
there is nothing in the legislative history to indicate that the Board’s
interpretation is the only acceptable construction of the Act, and the
relevant sections are also susceptible to the construction urged by the
union in this case. Therefore, were the Board arguing for that
interpretation of the Act, I would accord its view appropriate deference.
Labor relations agencies should safeguard the discretion
entrusted to them by their enabling authorities, and must not
abdicate their responsibility to provide principled and reasoned bases for
the exercise of that discretion. For example, in Meyers Industries, Inc.,
268 N.L.R.B. 493 (1984), the NLRB overruled its prior doctrine of
constructive concerted activity on the ground that the NLRA mandated that
only activity engaged in with or on the authority of other employees was
protected by section 7 of the NLRA. The Board maintained that the NLRA left
no room for discretionary judgment, and did not state any reasons for
its position that were grounded in labor relations policy. The D.C. Circuit
reversed holding that the Board’s interpretation of the NLRA was erroneous
and that the Board had discretion to construe section 7 with respect to
constructive concerted activity, and remanded the case so that the NLRB
could exercise its discretion and explain the reasons behind its choices.
Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985). On remand, the Board
exercised its discretion and explained why, as guardian of the statute, it
had concluded that the individual employee’s conduct was not protected.
Meyers Industries, Inc., 281 N.L.R.B. 882 (1986). The D.C.
Circuit then affirmed, deferring to the NLRB’s expertise, 835 F.2d 1481
(D.C. Cir. 1987).
Chapter 2 – Independence
Section 1: AGENCY OFFICIALS AND PERSONNEL OWE THEIR
ALLEGIANCE TO THE ENABLING AUTHORITY ON WHICH THE AGENCY IS FOUNDED, AND
MUST CARRY OUT THEIR FUNCTIONS INDEPENDENTLY OF POLITICAL INFLUENCES THAT
WOULD DISTORT THAT ALLEGIANCE, REGARDLESS OF WHETHER THEY ARE ADJUDICATING,
ADMINISTERING, INVESTIGATING OR MEDIATING.
A critical component in maintaining an agency’s impartiality, both in
appearance and in fact, is the agency’s independence from external
factors that are irrelevant to the principled resolution of the particular
dispute that is before the agency. It is inappropriate for any
person, party or official to exert political pressure on an agency,
either directly or indirectly, to have a matter handled in a
particular manner. The integrity and impartiality of an agency and the
effectiveness of its services may be destroyed if the agency is not
independent from political pressure.
Independence of agency officials is particularly important in public sector
labor relations, where the authority that appointed agency members
may be a named party to the dispute the agency is adjudicating or
mediating. As the party to a pending case, that appointing authority’s sole
legitimate expectation is that the agency will treat it like any other
party. Status as an appointing authority may not be used to influence the
handling of the case.
Independence of agency officials is of paramount importance for agencies
created by executive orders or regulations, as well as for agencies
established by statutes. The importance of independence applies equally
without regard to the nature or source of the agency’s enabling authority.
The State unilaterally implemented a policy requiring that all applicants
for employment and for promotion sign a statement agreeing that any claimed
debts to the State will be repaid through payroll deductions in an amount up
to 10% of the employee’s salary. The covered debts included, among other
things, unpaid taxes and overpayments of welfare benefits. The policy did
not contain, at least initially, a procedure by which an employee subject to
the repayment agreement could dispute whether a debt really was owed, or the
amount thereof. Several unions challenged the imposition of the repayment
agreements on the ground that the compulsory agreements affected wages,
which is a mandatory subject of bargaining. The State defended its actions,
arguing that repayment of debt owed to the State was a “qualification” for
employment and promotion which management could determine and impose
unilaterally. The State argued that requiring bargaining over the repayment
agreement would violate the State Personnel Director’s statutory right to
determine qualifications for employment. The labor relations agency must
determine whether the repayment requirement is a “qualification” as claimed
by the employer or a “condition of employment” as claimed by the unions. It
must decide whether the evidence shows that the disputed policy was intended
as an economic measure to collect monies from State employees and not as a
test of character and reputation, as argued by the State. The record will
support a finding that the policy does not fit the definition of a
“qualification” for employment. As a matter of law, the labor relations
agency can hold that as the agreements involved deductions from wages, a
mandatory subject of bargaining, the State could not unilaterally impose
this condition of employment without first bargaining.
As in this example, public sector agencies, in particular, may face
politically sensitive cases that must be decided by members appointed by the
employer. Agency acceptability and integrity depend on political
impartiality, as well as labor relations impartiality, and
decisions must be free of any reasonable perception of political bias or
favoritism. A decision that rules for the State as employer must be as
credible as a decision that rules against the State. That can only occur if
the agency is committed to political impartiality in principle and
independence in decision-making.
Section 2: THE IDEAL AGENCY APPOINTEE IS SELECTED FOR
KNOWLEDGE AND EXPERIENCE IN LABOR RELATIONS OR CAPACITY TO ACQUIRE
EXPERTISE, AND NOT FOR IDEOLOGICAL PURITY OR POLITICAL LOYALTY.
Some enabling authorities require that agency appointees have expertise in
labor relations. Regardless of whether a jurisdiction has such a mandate,
the ideal agency appointee is selected for experience and background in
labor relations rather than for loyalty to the political party of the
official making the appointment. In some situations, particularly smaller
jurisdictions, it may not be possible to appoint
ing only individuals
with established backgrounds in labor relations. In these instances, ideal
appointees will be individuals displaying the capacity to learn and the
capacity to listen before reaching a decision, and they should, upon
assuming office, educate themselves to develop the necessary expertise in
It is never appropriate for an appointing authority to condition an
appointment on the appointee’s commitment to decide particular cases in a
manner that contravenes the legal principles on which the agency is founded.
Section 3: ADJUDICATIVE AGENCIES ARE QUASI-JUDICIAL IN
NATURE, AND MUST OPERATE WITH A LEVEL OF INDEPENDENCE COMPARABLE TO
THAT OF THE JUDICIARY.
Once members assume offices charged with exercising quasi-judicial
functions, their relationships with the officials that appointed them or
other political officials should be at arms length. The Ontario Court of
Appeals succinctly stated the importance of such independence:
[T]he Ontario Labour Relations Board in its quasi-judicial functions must of
necessity maintain a public perception of independence from government if
the public is to have any respect for its decisions. Indeed, it is
difficult to imagine how any tribunal with quasi-judicial functions could
maintain the appearance of integrity to those who appear before it, without
some degree of independence.
Hewat v. The Queen in Right of Ontario, 37 O.R. (3d) 161, 169, 1998
Ont. Rep. LEXIS 115, at **21 (Ct. App. Ont. 1998).
Agency personnel faced with inappropriate attempts by appointing
officials or others to influence the outcome of a particular case or the
direction of agency decisions should rebuff them and report them to agency
counsel or the designated ethics officer. Agency officials are
trustees of the enabling authorities under which their agencies operate, and
their agencies’ reputations, and can only carry out their fiduciary
obligations by safeguarding their independence.
Section 4: MEMBERS SHOULD STRIVE TO DECIDE MATTERS
BEFORE THEM IN A PRINCIPLED MANNER THAT PRESERVES THE INTEGRITY OF THE
AGENCY AS A WHOLE.
Upon appointment, agency members become agents of their agencies’ enabling
authorities, and are no longer agents of particular political or
ideological viewpoints. Giving great weight to the principle of stare
decisis preserves agency integrity and promotes labor relations stability, a
goal of the labor relations systems administered by ALRA agencies. A party
who lost a case as a respondent yesterday must have a reasonable expectation
that it will win on identical facts as a charging party tomorrow, and
the reasonableness of that expectation should not be affected by a change in
the composition of agency membership unless there is a principled basis for
distinguishing the two cases.
In deciding a case, an agency writes the next chapter in the evolving body
of law under the enabling authorities. Agency members should strive to
decide each case in a manner that maintains the coherence and integrity of
the body of law as a whole. Deviations from precedent should be based on
principle, rather than on political expediency. Maintenance of a
coherent body of decisional authority promotes integrity and public
confidence in agency impartiality.
Independence from political or ideological expediency does not, however,
mean isolation from philosophical change. Agency members must
balance how a decision in a particular case fits within the body of law that
has already developed against the principles that support moving the
development of that body of precedent in a new or different direction.
Agency members should realize that too frequent ideologically-based changes
in agency doctrine will undermine the agency’s effectiveness. No agency
member should come into such a leadership role with a pre-established agenda
to remake agency decisional precedents. Members should approach potential
departures from established precedent as labor relations statespersons,
rather than ideologically-based instruments of doctrinal overhaul.
The greater the degree to which interpretation and application of
enabling authorities has been established, in terms of tenure of that body
of law and parties’ reliance on it, the greater the caution that should be
exercised before changing it. If and when long-standing policies or
precedents are changed, clear articulation of a weighty rationale for change
helps to preserve an agency’s reputation for integrity. The use of a
transparent public deliberative and consultative process can protect the
agency’s integrity in the face of changes in agency direction in the
development of the law. Focus groups and other input forums prior to
rulemaking can provide such a deliberative and consultative process,
but are not the only means of accomplishing changes in direction with
Section 5: AGENCY STAFFS HAVE A DUTY TO ACT IN A
PRINCIPLED MANNER AND PRESERVE THE AGENCY’S INTEGRITY, BUT MUST DO SO IN A
MANNER THAT GIVES DUE DEFERENCE TO THE ROLE OF THE AGENCY’S POLITICAL
It is inappropriate for political authorities or others to pressure the
staff of a labor relations agency concerning the outcome in any particular
case. When faced with attempts to exert inappropriate pressure, staff
members are obligated to rebuff them or report them to agency counsel or
A key function of some agency staff is to provide appointed members with the
advice necessary to facilitate their duties to maintain the agency’s
integrity. For example, staff charged with advising members should apprise
them about the degree to which a particular body of precedent is
well-established, the degree to which parties have come to rely on a
particular body of precedent, and the effects that contemplated
changes of policy or precedent are likely to have on labor relations in
general. Staff should realize, however, that they are not the appointees of
the elected governmental leaders and their role is to implement the
decisions made by those appointees.
Section 6: MEDIATION AGENCIES HOUSED IN EXECUTIVE
DEPARTMENTS OR MINISTRIES NEED NOT OPERATE COMPLETELY AT ARMS LENGTH FROM
SECRETARIES, MINISTERS OR OTHER DEPARTMENT HEADS, BUT MUST STILL ENSURE THAT
THE AGENTS CARRYING OUT THE AGENCY’S FUNCTIONS MAINTAIN THE
INDEPENDENCE NECESSARY TO PRESERVE AGENCY INTEGRITY.
When exercising mediation functions, labor relations agencies need not
maintain the same arms length relationship with their appointing authorities
that is required of agencies exercising quasi-judicial functions. Thus, an
appointing authority can properly advise the head of a mediation agency that
intervention in and resolution of a particular labor dispute is a high
priority for the administration. Thereafter, however, the labor relations
agency must carry out its mediation function independently of political
pressure, and it would be inappropriate for an appointing authority or any
other individual to pressure the agency to mediate in such a way as to
achieve a particular outcome of a given labor dispute. Furthermore, the
agency head within the labor relations agency should protect agency
acceptability by serving as a buffer between appointing authorities and
front-line mediators, to insulate the mediators from political
Section 7: AGENCIES SHOULD NOT TAKE IDEOLOGICAL
POSITIONS ON PENDING OR PROPOSED LEGISLATION BUT MAY PROVIDE TECHNICAL
ADVICE AND MAY ADVISE THE LEGISLATURE ON THE ADEQUACY OF FUNDING AND THE
CONSEQUENCES OF INADEQUATE FUNDING ON MANDATED AGENCY ACTIVITIES.
Proposed changes in the enabling authority of a labor relations agency are
almost always highly controversial. Even when appearing on their own behalf
before the legislature, agency personnel should realize that they
will be regarded as speaking for the agency.
It is generally not appropriate for a labor relations agency to take an
ideological position on pending or proposed legislation, and doing so can
create an appearance of partiality. The implications of this appearance of
partisanship can have disastrous consequences for the agency’s image as the
neutral administrator of dispute resolution mechanisms.
It follows naturally that agency members and staffs should refrain from
taking public positions on proposed legislation or proposed amendments to
other enabling authority. It is appropriate, however, for an agency to
provide fiscal estimates and technical advice to the legislative and
executive bodies responsible for establishing the enabling authorities the
agency will administer. Such a role is in keeping with the agency’s role as
technical expert in the field. Technical advice can include explaining how
a proposal is likely to operate or integrate with existing provisions of the
agency’s enabling authority, pointing out technical flaws in an existing
procedure that may not be operating as intended, and addressing the adequacy
of agency funding and the consequences of inadequate funding for
SEQ CHAPTER \h \r 1Chapter
3 - Conflicts and
the Appearance of
Conflicts of Interest
Section 1: ETHICS AND IMPARTIALITY ARE AFFIRMATIVE
VALUES WHICH AGENCY PERSONNEL MUST COMMUNICATE IN EVERYTHING THEY DO. THE
AFFIRMATIVE COMMUNICATION OF THESE VALUES, THE ON-GOING ACCEPTABILITY OF THE
AGENCY AND ITS FULFILLMENT OF ITS MISSION CRITICALLY DEPEND ON AVOIDING
CONFLICTS OF INTEREST AND THE APPEARANCE OF CONFLICTS OF INTEREST.
The impartiality of an agency is greater than the sum of the individuals who
serve as the agency’s members and staff. Consequently, agency personnel
should affirmatively communicate this value in all interactions with parties
subject to the agency’s jurisdiction and with the public.
Agency personnel should recognize that labor relations agencies differ from
many other public bodies. Labor relations agencies deal with a limited
clientele who frequently have on-going relationships with each other and
with the agency. Positive on-going relationships serve agency missions
which include promoting the peaceful settlement of labor-management
Agency personnel should always be mindful that little things potentially
mean a great deal. Agency personnel must comply with the technical rules of
their jurisdictions governing gifts and favors but must also recognize that
even conduct that complies with the technical rules may give the appearance
of partiality or otherwise impede agency acceptability. An agency’s
reputation for impartiality can be lost as easily in an advocate’s
hospitality suite as in an agency’s hearing room. Even in ministerial
matters, written communications should be addressed to both parties
When engaging in activities which further the agency’s mission outside the
context of specific cases, agency personnel should always ensure that they
communicate an ethic of impartiality. For example, agency personnel who
agree to provide training or to speak at a function sponsored by one
clientele group should be willing to provide a similar service to
constituents who sit on the opposite side of the bargaining table. When
speaking at a clientele group’s function, the agency representative should,
where accurate, refer to having made or being scheduled to make a similar
presentation to the opposing clientele group’s meeting.
While the values of impartiality set forth in this Chapter apply with equal
force to all agency personnel, there is a substantial difference between the
roles of a mediator and other agency personnel, and this leads to different
applications of those values. As an example, the effective performance of
mediation will often require extensive ex parte contacts, and that is
expected and proper. In the same vein, the lack of any power of compulsion
in most mediation models does not relieve a mediator of the duty to disclose
apparent conflicts, but may result in a substantially different analysis of
whether recusal is mandated. These and other distinctions are more fully
explored in Chapter 4.
While this Chapter illustrates the application of the governing principles
with caselaw from the United States, these principles are, in general,
equally applicable in Canada. As Brown and Evans state in Judicial
Review of Administrative Action in Canada at 11-4 to 11-11(loose-leaf,
updated July 20076):
The rule against interest and bias is designed to ensure that statutory
decision-makers are not subject to improper influences or consideration when
performing their duties and that they base their decisions on an assessment
of the evidence and the statute in question. . . . Accordingly, an
adjudicator who is not impartial either because of a pecuniary interest or
because of some improper predisposition to the outcome of the matter will,
if challenged, be disqualified. [citing in a footnote Energy Probe v.
Canada (Atomic Energy Control Board) (1985) 11 Admin. L. R. 287 AT 302
FCA), leave to appeal to SCC refd (1985), 15 D.L.R. (4th) 48(n).
And see Benedict v. Ontario (2000) 51 O.R.(3d) 47 (Ont. CA);. . .]
As well, the rule against bias is designed to preclude conduct
by officials that will undermine public confidence in the integrity of the
decision-making process, and hence reduce the legitimacy of decisions. Thus,
the law requires not only that adjudicative decision-makers be impartial in
fact, but also that they appear to be impartial, so that parties can have
confidence that their participation in the process was meaningful which in
turn will enhance the acceptability of the resulting decision. [footnote
omitted] . . . Accordingly, the rule against bias asks the question whether
in all the circumstances, there is a “reasonable apprehension of bias.”
[citing in a footnote Szilard v. Szasz,  S.C.R. 3;
Newfoundland Telephone Co. v. Newfoundland Public Utilities Board,
 1 S.C.R. 623.]
. . . . .
Although the categories of relationships, events, and conduct
that may give rise to a reasonable apprehension of bias are never closed,
some of the more common include:
Kinship, friendship, partisanship, particular professional or business
relationship with one of the parties, animosity towards someone interested
[and a] predetermined mind as to the issue involved . . . (citing in a
footnote Energy Probe v. Canada (Atomic Energy Control Board) (1985)
11 Admin. L. R. 287 at 302 per Marceau J. (FCA), leave to appeal to SCC refd
(1985), 15 D.L.R. (4th) 48(n).
Whether any particular set of circumstances will disqualify a decision-maker
on the ground of reasonable apprehension of bias depends on the following
The apprehension of bias must be a reasonable one, held by reasonable and
right-minded persons, applying themselves to the question and obtaining
thereon the required information. In the words of the Court of Appeal, that
is “what would an informed person, viewing the matter realistically and
practically – and having thought the matter through – conclude”. [citing in
a footnote, Committee for Justice and Liberty v. Canada (National Energy
Board) (1978) 1 S.C.R. 369 at 394095, per de Grandpre J. dissenting.
Section 2: AGENCY PERSONNEL SHOULD REFRAIN FROM
ENGAGING IN EX PARTE CONTACTS OR GIVING THE APPEARANCE OF EX PARTE CONTACTS
CONCERNING MATTERS PENDING BEFORE THEM.
An adjudicator’s actual receipt of ex parte communications or the appearance
of such undermines the perception of impartiality. The party excluded from
the communication may reasonably question whether the recipient of the
communication has been biased by it. Agency adjudicators must take care to
avoid ex parte communications. Where such communications are inadvertently
received, they should be shared with the excluded party. For example, when
the representative of one party sends an e-mail to an agency adjudicator
without copying the opposing representative, the adjudicator should respond
to the e-mail with a copy to the opposing representative politely but firmly
instructing the sender to copy the opposing representative on all
communications, including e-mails.
Even the appearance of ex parte contacts in seemingly innocuous settings may
undermine the appearance of impartiality. For example, if one
representative offers an agency adjudicator a ride to the airport at the
conclusion of a hearing, the adjudicator should not accept the ride unless
the opposing representative consents to it after being assured that
objection will not be held against her and the opposing representative is
assured by the adjudicator and the representative offering the ride that
there will be no discussion of the case. Similarly, if while a proceeding
is pending, an adjudicator is approached by one representative in a
restaurant or airport snack bar, the adjudicator should politely but firmly
ask the representative to sit elsewhere or should move himself.
As indicated in the Commentary to Section 1, above, mediation often requires
extensive ex parte communications to be effective. Consideration of ex
parte communications by mediators is deferred until Chapter 4.
Section 3: AGENCY PERSONNEL SHOULD DISCLOSE MATTERS
THAT MIGHT LEAD A REASONABLE PERSON TO INQUIRE FURTHER.
There is a rich tradition of liberal disclosure among neutrals involved in
resolving labor-management disputes. Disclosure furthers openness and
transparency and protects an agency’s reputation for impartiality and
integrity. When matters which might lead a reasonable party to inquire
further are not disclosed, a party which discovers the information later may
infer nefariousness where none exists.
For example, an adjudicator’s impartiality could not be reasonably
questioned merely because the adjudicator and the advocate representing one
of the parties have served together on the board of a charitable
organization unrelated to labor relations. However, the party opposing the
advocate’s client would not be expected to know of such prior relationship
and might reasonably want to inquire further into it. In such a situation,
the prior relationship should be disclosed.
Disclosure by agency personnel serves a different function than disclosure
by labor arbitrators. Arbitrators are selected by and accountable to the
parties. They derive their authority from the parties’ agreement to be
bound by the decision of the arbitrator that the parties mutually selected.
When arbitrators disclose additional information that was not generally
known, parties may, in light of such disclosure, reconsider their decision
to select the particular arbitrator. Under these circumstances, an
arbitrator faced with a timely objection is obligated to step aside.
Agency personnel, however, are not selected by the parties and are not
accountable to the parties. They are accountable to the statutes they
administer and to the public at large. Disclosure furthers openness and
transparency, rather than more informed selection by the parties.
Consequently, post-disclosure objections to agency personnel’s continued
involvement in a case should not automatically result in recusal. The
relevant inquiry remains whether an individual’s impartiality may reasonably
Section 4: AGENCY PERSONNEL MUST RECUSE THEMSELVES
WHENEVER THEY ARE UNABLE TO SAY WITH CONFIDENCE THAT THEY CAN ACT FAIRLY AND
IMPARTIALLY IN A PARTICULAR MATTER.
A threshold question that all agency personnel must confront in every case
is whether they can preside fairly and impartially. Having confidence in
one’s ability to be fair and impartial is essential. Even if the
circumstances do not per se mandate recusal, an individual must
remove himself or herself from any case where the individual does not feel
confident that he or she can preside impartially. For example, as developed
below, the involvement of an individual’s former employer or law firm in a
matter may not per se disqualify the individual. Nevertheless, in a
particular case, an individual may consider the former relationship “too
close for comfort.” In such instances, agency personnel are obligated to
Section 5: AGENCY PERSONNEL MUST RECUSE THEMSELVES
WHENEVER THEY KNOW THAT THEIR IMPARTIALITY MAY REASONABLY BE QUESTIONED.
It is not sufficient that agency personnel have confidence in their own
ability to preside impartially. They also must be perceived as impartial.
Justice must not only be done -- it must also be seen as being done.
The parties, as autonomous actors, are entitled to respect which includes a
reasonable assurance that their disputes are resolved on the merits and not
corrupted by irrelevant factors. Parties are denied that assurance when a
reasonable person would question the impartiality of the agency personnel
assigned to process a case.
Agency personnel also have a responsibility to safeguard the agency’s
reputation for integrity. Recusal when a party could have a reasonable
basis to question their impartiality is essential to maintaining the
Agency personnel must remove themselves from a case whenever there is bias
or the appearance of bias regardless of whether the source of the bias arose
out of the proceeding itself or was independent of the proceeding. Much
information acquired in the course of a proceeding, however, will not
provide a reasonable basis for questioning the impartiality of agency
personnel. Opinions arising during the course of the proceeding serve as a
basis for recusal only where they display such deep-seated antagonism or
favoritism that a reasonable person would conclude that fair judgment is not
possible. See Liteky v. United States, 510 U.S. 540 (1994).
Section 6: AGENCY PERSONNEL MUST RECUSE THEMSELVES
WHENEVER THEY, A CLOSE RELATIVE, A MEMBER OF THEIR HOUSEHOLD OR A CLOSE
FRIEND HAVE OR COULD HAVE AN INTEREST THAT COULD BE DIRECTLY AFFECTED BY THE
Even though agency personnel believe that they can discharge their
responsibilities fairly or impartially, a reasonable person would question
their impartiality where they, a close relative or a member of their
household have an interest that could be directly affected by the
proceeding. For example, agency adjudicators should recuse themselves
whenever a party is an entity of which the adjudicator, a close relative or
a member of the adjudicator’s household is a shareholder or other partial
The appearance of a conflict of interest similarly arises where a close
relative or member of an agency official or employee’s household is an
employee or representative of one of the parties. Thus, agency adjudicators
should recuse themselves where their spouse is an officer of a union
involved, a member of the bargaining unit involved, employed by a law firm
representing one of the parties involved, or a manager of the employing
entity directly involved in the proceeding.
Agency personnel must initiate their own exclusions, or at least make full
disclosures and exclude themselves on the request of any party, whenever the
appearance of a conflict of interest arises due to one of the employees or
representatives in a dispute being a close friend or having a personal
antagonism to the person assigned to conduct the proceedings.
On the other hand, agency personnel need not recuse themselves where their
potential interests in the outcome of a proceeding are so indirect or
attenuated that a reasonable person would not question their impartiality.
For example, personnel of a public sector labor relations agency need not
recuse themselves from hearing cases in which the state or province is a
party merely because they are residents of that state or province. Along
these same lines, agency personnel need not remove themselves from cases
involving one or more parties that the individual has ruled for or against
while serving as an impartial resolver of labor-management disputes.
Section 7: AGENCY PERSONNEL MUST RECUSE THEMSELVES
FROM ANY CASE WHERE THEY HAVE APPLIED FOR OR ARE OTHERWISE BEING CONSIDERED
FOR EMPLOYMENT WITH A PARTY OR THE LAW FIRM OR OTHER REPRESENTATIVE OF A
PARTY IN THE PROCEEDING.
When an agency member or agency employee has applied for or is being
considered for any form of employment or consultancy with a party to a
proceeding, the employee or board member must not participate in the
proceeding. There is nothing short of complete isolation of the individual
from the proceeding which will preclude a reasonable person from questioning
the individual’s impartiality in such circumstances.
Illustrative is Voeltz v. John Morrell & Co., 564 N.W.2d 315 (S.D.
1997). An administrative law judge presided over an adjudication of a claim
for workers compensation against Morrell. After the hearing concluded but
before the decision was issued, the ALJ responded to a blind newspaper ad
seeking a Director of Workers Compensation. A representative of Morrell
responded, inviting the ALJ to apply for the position. Subsequently, the
ALJ was interviewed for the job. Shortly after the interview, the ALJ
informed Morrell that she did not wish to discuss the job further while the
case was pending before her. After issuing her decision, which was
favorable to Morrell, the ALJ advised Morrell that she was able to discuss
the position. Morrell eventually offered the position to the ALJ, who
accepted it. The South Dakota Supreme Court observed that the ALJ
“apparently believed forestalling an offer from Morrell was a sufficient,
ethical course of action in this case.” Id. at 319. The court
rejected that notion, holding that “an unacceptable risk of bias . . . [was]
clearly present when an ALJ is negotiating employment with a party to a
pending case.” Id. Thus, the concern ran deeper than the status of
the transaction at any particular moment and the court ordered that the
matter be remanded to the agency for a new hearing.
Similarly, in Chicago, Milwaukee, St. Paul and Pacific RR Co. v.
Washington State Human Rights Commission, 557 P.2d 307 (Wash. 1977), the
Washington Supreme Court held that the Railroad was denied due process when
one member of a tribunal hearing a discrimination complaint against the
Railroad simultaneously had an application for employment pending before the
Commission which was prosecuting the complaint. The court reasoned:
There is no direct evidence that Ms. Ammeter was prejudiced or motivated in
favor of the Commission and we do not suggest that she performed her duties
as a tribunal member in less than an exemplary manner. It is the fact of
her pending application for a job with the very Commission appearing before
the tribunal as advocate that strips the proceeding of the appearance of
Id. at 313.
Section 8: AGENCY PERSONNEL MUST RECUSE THEMSELVES
FROM ANY MATTER IN WHICH THEY WERE INVOLVED AS A PRINCIPAL, REPRESENTATIVE
OR WITNESS PRIOR TO JOINING THE AGENCY, BUT AGENCY PERSONNEL ARE NOT
AUTOMATICALLY OR PERMANENTLY DISQUALIFIED FROM ACTING IN MATTERS INVOLVING
THE INDIVIDUAL’S FORMER EMPLOYER OR CLIENT OR BECAUSE A PARTY IS REPRESENTED
BY THE INDIVIDUAL’S FORMER LAW FIRM.
A reasonable person would justifiably question the fairness and impartiality
of a person acting in a matter if that person was involved in the same
matter prior to joining the agency. Such a change in roles is clearly
distinguishable from prior involvement in the matter on behalf of the agency
in a neutral capacity which does not automatically disqualify the individual
from acting further in the matter. Agencies should employ effective
screening procedures to ensure that agency personnel are not assigned to
cases in which they were involved prior to joining the agency.
Prior experience in labor-management relations and the dispute resolution
mechanisms associated with collective bargaining is an asset for agency
personnel and should not be turned into a handicap by imposing a long-term
exclusion of experienced personnel from serving in cases involving their
former colleagues or adversaries. Cf. FTC v. Cement Institute, 333
U.S. 683, 702 (1948). Subject to specific rules that may apply in a
particular jurisdiction (such as a rule precluding agency personnel for a
specific period of time after joining the agency from involvement in matters
in which their former employers, clients or law firms were involved), agency
personnel should be permitted to bring their accumulated experience and
expertise in resolving disputes involving their former employers, clients or
law firms, so long as other concerns about ethics, fairness and impartiality
are met. For example, the former chief labor lawyer for a state or province
or the former in-house attorney for a union would not be permanently
disqualified from involvement in a case before the agency in which their
former employers were parties, provided that they had not been involved in
the matter in their prior positions.
Section 9: AGENCY PERSONNEL WHO CONCURRENTLY SERVE AS
ADVOCATES MUST RECUSE THEMSELVES FROM ANY CASE IN WHICH THEIR EMPLOYER OR
CLIENT IS A PARTY AS WELL AS FROM ANY CASE WHICH HAS A DIRECT EFFECT ON
THEIR EMPLOYER OR CLIENT’S PENDING MATTERS. HOWEVER RECUSAL IS NOT MANDATED
MERELY BECAUSE THEIR EMPLOYERS OR CLIENTS WILL BE BOUND BY THE PRECEDENT
ESTABLISHED IN A CASE.
Many labor relations agencies are established as tri-partite in nature, with
specific board members or commissioners designated or recommended by labor
or management. Agency members filling these positions often serve part-time
while continuing to serve as advocates for employers or employee
organizations subject to the agency’s jurisdiction. Where their employers
or clients are parties to an agency proceeding, such individuals have an
interest that could be directly affected by the proceeding and should remove
themselves from any participation in the proceeding.
Illustrative is Central Missouri Plumbing Co. v. Plumbers Local 35,
908 S.W.2d 366 (Mo. App. 1995), which concerned the Missouri Labor and
Industrial Relations Commission’s determination of the prevailing wage rate
for plumbers in Cole County, Mo. The Missouri Division of Labor Standards
issued an order setting the rate. Pursuant to the statutory procedure,
Local 35 filed an objection to the rate with the Commission. The statute
required that one member of the Commission be an individual “who on account
of his previous vocation, employment, affiliation or interests shall be
classified as a representative of employees.” That member was the president
of Local 35. The court held it was improper for him to participate in the
agency’s consideration or decision of the case. It observed:
The Commissioners of the Labor and Industrial Relations Commission . . .
occupy quasi-judicial positions. Each one is to bring a particular
perspective, representative of a particular constituency, to the
Commissioner’s determination. But all of them must also, as quasi-judicial
officers, strive to conscientiously apply the law.
Id. at 370. The court held that it was improper for the president of
Local 35 to sit on the case and that he should have disclosed his union
position and either recused himself or obtained from all parties consent to
his participation. Id. at 371.
Agency personnel who concurrently serve as advocates must also recuse
themselves when their employers or clients are not parties to a specific
case but the outcome of the case will likely affect pending matters to which
their employers or clients are parties. An analogous situation arose in
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986). Aetna refused to
pay part of Lavoie’s medical insurance claim and the Lavoies sued for breach
of contract and for the tort of bad faith refusal to pay an insurance
claim. After losing twice in the trial court and having both losses
reversed by the Alabama Supreme Court, the Lavoies proceeded to a jury
trial. The jury returned a verdict of $3.5 million in punitive damages
which Aetna appealed to the Alabama Supreme Court. The Alabama Supreme
Court affirmed by a vote of 5 to 4, in an unsigned per curium opinion.
While the case was pending in the Alabama Supreme Court, the justice who
authored the per curiam opinion filed bad faith refusal to pay law suits
against two other insurers: one for failure to pay for the loss of a mink
coat and a class action on behalf of all Alabama state employees (including
the other members of the Alabama Supreme Court) for an alleged intentional
plan to withhold payment on valid health insurance claims. The U.S. Supreme
Court held that the justice’s failure to recuse himself from the Lavoie
case violated Aetna’s due process rights. The Court reasoned:
When Justice Embry cast the deciding vote, he did not merely apply
well-established law and in fact quite possibly made new law . . .
The decision under review firmly established that punitive damages could be
obtained in Alabama in a situation where the insured’s claim is not fully
approved and only partial payment of the underlying claim had been made.
Prior to the decision under review, the Alabama Supreme Court had not
clearly recognized any claim for tortious injury in such circumstances;
moreover, it had affirmatively recognized that partial payment was evidence
of good faith on the part of the insurer. [citation omitted] The Alabama
court also held that a bad-faith-refusal-to-pay cause of action will lie in
Alabama even where the insured is not entitled to a directed verdict on the
underlying claim, a conclusion that at least clarified the thrust of an
earlier holding. [citation omitted] Finally, the court refused to set aside
as excessive a punitive damages award of $3.5 million. The largest punitive
award previously affirmed by that court was $100,000 . . . . [citation
All of these issues were present in Justice Embry’s lawsuit
again Blue Cross. His complaint sought recovery for partial payment of
claims. Also, the very nature of Justice Embry’s suit placed in issue
whether he would have to establish that he was entitled to a directed
verdict on the underlying claims that he alleged Blue Cross refused to pay
before gaining punitive damages. Finally, the affirmance of the largest
punitive damages award ever (by a substantial margin) on precisely the type
of claim raised in the Blue Cross suit undoubtedly “raised the stakes” for
Blue Cross in that suit, to the benefit of Justice Embry. Thus, Justice
Embry’s opinion for the Alabama Supreme Court had the clear and immediate
effect of enhancing both the legal status and the settlement value of his
Id. at 823-24. Thus, adjudicators must remove themselves whenever a
case will establish legal precedent that may directly impact pending
litigation in which that adjudicator is a party. Similarly, adjudicators
concurrently serving as advocates must recuse themselves where the case will
establish legal precedent that may directly impact pending litigation
involving their employer or client.
On the other hand, it must be recognized that agencies structured to have
equal numbers of members designated by labor and management are intended to
benefit from the expertise that those advocates bring to bear on agency
decisions. Consequently, a requirement that such advocates disqualify
themselves from any action that would set a precedent binding on their
employers or clients could effectively disqualify them from all cases before
the agency and undermine the rationale behind the tri-partite structure.
The critical issue for agency personnel who also serve as advocates is
whether the effect of a particular case on their employers or clients is so
direct that their impartiality could reasonably be questioned or so
attenuated or speculative that their participation would not be suspect.
Section 10: AGENCY PERSONNEL REQUIRED TO RECUSE
THEMSELVES MUST DO SO AS SOON AS POSSIBLE AFTER THEY BECOME AWARE OF
CIRCUMSTANCES THAT WOULD LEAD A REASONABLE PERSON TO QUESTION THEIR
IMPARTIALITY, REGARDLESS OF THE STATE OF THE PROCEEDING AT ISSUE.
Agency personnel usually will be aware of matters requiring their recusal
from the outset of their involvement in a case. They should take action to
remove themselves, or to at least make inquiry and offer to remove
themselves, as soon as possible. It is not good practice for agency
personnel to wait until one of the parties advances an inquiry or objection,
as that type of conduct is capable of being misinterpreted as an attempt to
slip one by the parties.
Where agency personnel first become aware of disqualifying matters after the
case has begun, they remain obligated to recuse themselves promptly,
regardless of how far along the case has come. For example, in Voeltz v.
John Morrell & Co., supra, the ALJ learned after the hearing had
concluded but before she issued her decision that the company whose blind ad
she had responded to was a party in a matter pending before her. Although
her recusal probably would have disrupted the proceedings, her recusal was
nonetheless required. See also Teslaar v. Bender, 365 F.
Supp. 1007 (D. Md. 1973) (approving recusal of hearing examiner after one
party completed its case).
An Illinois case illustrates that it is never too late to be concerned about
the ethics of impartiality. In Bd. of Educ. v. IELRB, 518
N.E.2d 713 (Ill. App. Ct. 1987), during negotiations for a new collective
bargaining agreement, an employer sought to exclude certain secretaries from
the bargaining unit. The union opposed the proposal but the parties agreed
to exclude the secretaries while the union filed a unit clarification
petition with the Illinois Educational Labor Relations Board. The union did
so and the hearing officer ordered the secretaries included in the unit.
The employer filed exceptions and the IELRB, by 2 to 1 vote, reversed the
hearing officer and held that the secretaries were confidential employees.
After the IELRB issued its decision, one of the Board members in the
majority who had previously been a management advocate, moved to recuse
himself because he had participated in the underlying collective bargaining
negotiations; he further indicated that he had forgotten about this prior
work and that it had been brought to his attention since the decision
issued. The IELRB then vacated its prior decision and held that because the
two remaining Board members were equally divided, the hearing officer’s
decision would stand but without precedential value. The Illinois Appellate
Court upheld the IELRB’s action.
Section 11: WHERE DOUBTS EXIST CONCERNING WHETHER A
PARTICULAR AGENCY EMPLOYEE OR OFFICIAL SHOULD RECUSE, THE MATTER SHOULD BE
REFERRED TO AN AGENCY OFFICIAL OTHER THAN THE ONE WHOSE RECUSAL HAS BEEN
Referral of a question of recusal to a different agency official strengthens
the credibility of the ultimate decision reached. Good agency practice
would designate a specific agency official, such as a general counsel, as
the person to handle all such referrals.
Section 12: THE DOCTRINE OF NECESSITY MAY ALLOW AGENCY
PERSONNEL TO PARTICIPATE IN MATTERS IN WHICH THEY WOULD OTHERWISE BE RECUSED
WHERE THERE IS NO OTHER CHOICE, BUT THE DOCTRINE SHOULD BE INVOKED SPARINGLY
AND WITH SAFEGUARDS AGAINST BIAS OR THE APPEARANCE OF BIAS TO THE EXTENT
The rule of necessity basically states that if all are disqualified, none
are disqualified. The U.S. Supreme Court discussed the rule extensively in
United States v. Will, 449 U.S. 200 (1980). The case involved a
class action brought on behalf of all federal judges attacking the
constitutionality of appropriation acts for four fiscal years, on the ground
that the acts’ taking away automatic cost of living salary adjustments
violated the Constitution’s prohibition on reducing the compensation of
Article III judges. The Supreme Court characterized the rule of necessity
as “a well-settled principle at common law that . . . ‘although a judge had
better not, if it can be avoided, take part in the decision of a case in
which he has any personal interest, yet he not only may but must do so if
the case cannot be heard otherwise.’” Id. at 213 (quoting F. Pollack,
A First Book of Jurisprudence 270 (6th ed. 1929)).
Whether an agency should invoke the rule of necessity depends on the
circumstances of a particular case. Often, the rule will be invoked as an
added justification for agency personnel to preside where other
justifications are primary. For example, the rule may justify an agency
considering unfair labor practice charges against a state or province even
though all board members or commissioners are residents of the state or
province. However, the primary justification is the attenuated nature of
their interest in the outcome of the proceeding by virtue of their
Before invoking the rule of necessity, the agency should examine
alternatives such as empanelling a substitute board. Where there is no
authority to empanel a substitute board, the law of a particular
jurisdiction may allow the agency to sit as a matter of necessity. See
Emerson v. Hughes, 90 A.2d 910, 915 (Vt. 1952) (“Under [the rule of
necessity] . . . an administrative officer exercising such functions may act
in a proceeding wherein he is disqualified by bias or prejudice if his
jurisdiction is exclusive and there is no legal provision for calling in a
substitute.”). Even in such cases, the agency should consider obtaining an
advisory ruling from a special independent review officer. The utility of
such a procedure in safeguarding the agency’s reputation for integrity is
illustrated by a comparison of several cases.
In Gibson v. Berryhill, 411 U.S. 564 (1973), members of the Alabama
Optometric Association filed charges before the Alabama Board of Optometry
seeking to revoke the licenses of optometrists employed by a corporation on
the grounds, inter alia, that the optometrists were aiding and
abetting the corporation in the unlawful practice of optometry. Two days
later, the Board filed suit against the corporation to enjoin its alleged
unlawful practice of optometry. The Board stayed its license revocation
proceedings pending outcome of the law suit. The trial court agreed with
the Board and enjoined the corporation from practicing optometry and from
employing licensed optometrists. The Board then reactivated the license
revocation proceedings. The charged optometrists sued to enjoin the license
revocation hearings and a three-judge district court issued the injunction.
The U.S. Supreme Court affirmed.
The Court expressly based its affirmance on the district court’s finding of
bias. The district court had found that the Board was comprised of only
optometrists who were in private practice for their own accounts and that
the license revocation proceedings were designed to revoke the licenses of
all optometrists in the state who worked for corporations such as Lee
Optical. “[S]uccess in the Board’s efforts would possibly redound to the
personal benefit of members of the Board, sufficiently so that in the
opinion of the District Court the Board was constitutionally disqualified .
. .”Id. at 578. The Supreme Court simply stated, “As remote as we
are from the local realities underlying this case and it being very likely
that the District Court has a firmer grip on the facts and of their
significance to the issues presented, we have no good reason on this record
to overturn its conclusion and we affirm it.” Id. at 579.
In contrast, two courts have distinguished Gibson as not applying
where the interested commissioners appointed an independent hearing officer
to hear the case and where the commission’s decision was subject to
independent judicial review. Massangale v. Okla. Bd. of Examiners in
Optometry, 30 F.3d 1325 (10th Cir. 1994) (optometrists in practice for
themselves sitting on case seeking to discipline optometrists working for
corporations); Ford Motor Co. v. Arkansas Motor Vehicle Commission,
161 S.W.2d 788 (Ark. 2004) (automobile dealer members of the Motor Vehicle
Commission sitting in a case challenging Ford’s rejection of a Ford dealer’s
sale of its dealership to another party); but see Yamaha Motor Corp. v.
Riney, 21 F.3d 793 (8th Cir. 1994) (holding commissioner of
Arkansas Motor Vehicle Commission who was President of the Arkansas
Motorcycle Dealers’ Ass’n and a Harley Davidson dealer could not
constitutionally sit on case concerning whether Yamaha violated a state
statute in not compensating its dealer at the retail parts price for
warranty work the dealer performed).
Jurisdictions differ over whether the doctrine of necessity allows an
otherwise disqualified agency member to cast a tie-breaking vote.
Compare Bd. of Ed. v. IERLB, supra, with Barker v. Sec’y of
State, 752 S.W.2d 437 (Mo. App. 1988). The alternative is to affirm the
ruling of the subordinate official by an equally-divided vote on a
non-precedential basis. Even where legally permissible in a particular
jurisdiction, the affected member must still decide whether to participate,
taking into consideration whether the individual can decide the issue with
integrity, and, if so, whether the degree and appearance of conflict,
weighed against the importance of the issue to be decided, militates in
favor of participation, notwithstanding the likelihood of lessened
acceptability of the result.
Section 13: AGENCIES MAY ESTABLISH TIME
LIMITS FOR PARTIES TO OBJECT TO PARTICULAR PERSONNEL PARTICIPATING IN THEIR
CASES. PARTIES WHO FAIL TO COMPLY WITH SUCH TIME LIMITS WITHOUT GOOD CAUSE
WAIVE THEIR OBJECTIONS. PARTIES MAY ALSO EXPRESSLY WAIVE THEIR OBJECTIONS.
EVEN WHERE PARTIES HAVE WAIVED THEIR OBJECTIONS, AGENCY PERSONNEL REMAIN
OBLIGATED TO RECUSE THEMSELVES WHENEVER THEY CANNOT SAY WITH CONFIDENCE THAT
THEY CAN ACT FAIRLY AND IMPARTIALLY.
Many of the rules concerning recusal are designed to prevent the appearance
of bias even though there is no bias in fact. Parties may waive objections
of the participation of agency personnel in situations where such
participation may give the appearance of bias. Waivers may be express or
may result from failure to object in a timely manner. It is important,
however, to distinguish between recusal for matters that may give the
appearance of bias and recusal because personnel cannot say with confidence
that they are able to preside fairly and impartially. In the latter
situation, agency personnel remain obligated to step aside even though the
parties have waived objections and could not base an appeal on the
objections that were waived.
Section 14: TO AVOID GIVING AN APPEARANCE OF
PREJUDGMENT, AGENCY PERSONNEL SHOULD NOT MAKE PUBLIC STATEMENTS ABOUT
MATTERS PENDING BEFORE THEM.
Public statements about pending matters should be avoided because they can
give the appearance of prejudgment and can lead to recusal in circumstances
where recusal might otherwise not be required. For example, in
Cindarella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C.
Cir. 1970), the FTC charged Cindarella with false advertising, including
making false claims that it was a college and that its courses would qualify
students for jobs as flight attendants. After a lengthy hearing, the
hearing examiner dismissed the complaint and FTC complaint counsel appealed
to the full Commission. With the appeal pending, the FTC Chairman gave a
speech to the Government Relations Workshop of the National Newspaper
Association in which he challenged newspapers to refuse to accept
advertisements that appeared to be deceptive. Among the examples of clearly
deceptive ads he cited were those offering college educations in five weeks
and those promising prospective students that they could become flight
attendants by attending charm school. The court held that the speech
evidenced prejudgment of the case and that the FTC Chair should have recused
Similarly, in Charlotte County v. IMC-Phosphates Co., 824 So. 2d 298
(Fla. App. 2002), the Florida Court of Appeal issued a writ of prohibition
disqualifying the Secretary of the Florida Department of Environmental
Protection from ruling on the appeal of an ALJ’s decision to grant a permit
to conduct phosphate mining that the county had opposed. On the day the ALJ
issued the decision, the Secretary issued a statement that provided:
We have felt all along that our actions were fully consistent with state
laws and Department rules. The public can feel comforted in the knowledge
that a totally impartial arbiter has found that the will of their elected
representatives is being carried out by the executive branch. The
professionals at DEP have dedicated their careers to protecting the
environment and their good-faith efforts have been affirmed. As the same
time, we constantly look at ways to do better in all areas. As we pledged
to the Chairman of the House Natural Resources and Environmental Protections
Committee, Rep. Harrington, an internal review of the phosphate mining
process is ongoing. With the guidance now provided by Judge Stampelos, that
review can now be targeted and accelerated. In the end, we hope to have a
process that will serve the public even better.
Id. at 300. The court ordered the Secretary disqualified from
hearing the county’s appeal from the ALJ’s decision. The court reasoned:
The timing and content of Secretary Stuhs’ statements are of particular
significance to our conclusion that Charlotte County is entitled to have the
secretary recused. At the time the statements in question were made, the
secretary was not acting in the role of investigator, prosecutor or a person
responsible for determining probable cause. The statement was made on the
day the ALJ issued the recommended order and the statement specifically
addressed the merits of the ultimate decision whether the agency had
followed the applicable law in granting the permit. The statement given at
this time was not mandated as part of any of the secretary’s statutory
duties, but can only be classified as a statement made as part of his
political duties. A gratuitous statement such as this is far different from
an agency making a statutorily mandated preliminary determination involving
different standards of proof and persuasion than those involved in the
Id. at 301.
Chapter 4 – Special Considerations Regarding Mediation
A substantial difference between the roles of mediators and the roles of
other agency personnel has been touched on in previous chapters. While
mediators are expected to conduct themselves impartially and with the same
close attention to even-handed public service as all other agency personnel,
fundamental differences in roles between government mediators on the one
hand, and the policy makers and adjudicators in an agency on the other hand,
can lead to different expressions of the principles of impartiality. This
Chapter explores the application of the previously reviewed principles, as
well as certain principles unique to the mediator’s role, to the practice of
mediation by a neutral government agency.
The labor mediation process has existed for a very long time, and mediation
has been provided by government agencies since the 1880’s. The Association
of Labor Relations Agencies (ALRA) and its member agencies promulgated the
“Code of Professional Conduct for Labor Mediators” in 1971and have updated
it from time to time. The basic principles set down a generation ago in the
Code remain valid, and this document is not intended to supersede the Code
of Conduct. /
The fact that mediation has, in the meantime, become a valued method
for resolving other types of disputes does not detract from those basic
Section 1: THE
MEDIATOR HAS AN AFFIRMATIVE OBLIGATION TO DISCLOSE ACTUAL OR POTENTIAL
CONFLICTS OF INTEREST PRIOR TO COMMENCING THE MEDIATION PROCESS. A MEDIATOR
MUST DECLINE THE ASSIGNMENT IF A CONFLICT WOULD PREVENT HIS OR HER
EVEN-HANDED PURSUIT OF A SETTLEMENT ON TERMS ACCEPTABLE TO BOTH PARTIES.
As with any other employee or agent of a neutral agency, a mediator must be
sensitive to the existence of conflicts of interests and to the possible
perception of conflicts of interests. A mediator should fully disclose any
such real or possible conflicts to the agency and to the parties. The
disclosure should be made promptly upon the mediator’s realization of the
problem, and disclosure should never be delayed pending an inquiry by one of
the parties. As noted in Chapter 3, §3, supra, “When matters which
might lead a reasonable party to inquire further are not disclosed, a party
which discovers the information later may infer nefariousness where none
The lack of any power of compulsion by the mediator might, on its face,
suggest a looser standard of disclosure of conflicts than in the case of an
adjudicator. However, the retention of party free choice in deciding
whether to enter into an agreement is offset by the lack of transparency in
the mediation process, and the absence of any procedural checks or
safeguards on the conduct of the mediator. The mediator’s influence on the
substantive agreement resulting from mediation is often invisible, even to
the parties, but it is nonetheless real in many cases. The choices a
mediator makes in the presentation of offers help to shape the final
agreement. These choices include what to emphasize or de-emphasize, what to
question or let go by, and what options and alternatives to aggressively
explore. Thus, while a mediator cannot dictate the final outcome as an
adjudicator might, a party cannot as easily identify the misconduct of a
mediator as it can the misconduct of an adjudicator, and often lacks any
effective remedy for an undisclosed conflict discovered after the mediation
While the obligation to disclose conflicts is the same for a mediator as for
any other agency staff member, the analysis of whether the mediator must
recuse from the case is slightly different. The mediator does have
opportunities to influence the outcome of the mediation, but if both parties
have been advised of the potential conflict they have the opportunity to
safeguard themselves through their ability to withhold agreement.
Therefore, a mediator is not required to recuse from a case in which a
reasonable question of a conflict might be raised, but in which the mediator
does not objectively have a conflict. A mediator is only required to recuse
from a case where the nature of the conflict is such that a reasonable
person in the position of the mediator could not say with confidence that
the mediator is able to even-handedly pursue a settlement on terms
acceptable to both parties.
This section is not intended to impair an agency’s ability to
exercise judgment in assigning mediators in ways that maximize their
effectiveness. Thus, nothing compels an agency to assign a particular matter
to a mediator where one or both parties object. Nor does this section compel
an agency to refuse to assign or to remove a mediator where there are
objections to the mediator’s service but there is no objective basis for the
mediator’s recusal. Agencies have the discretion to balance concerns with
mediator effectiveness against a desire not to encourage parties to engage
in “mediator shopping.”
Section 2: THE MEDIATOR’S ROLE NECESSARILY INCLUDES
PRIVATE CONVERSATIONS WITH PARTIES AND PROTECTION OF INFORMATION PROVIDED BY
PARTIES ON A CONFIDENTIAL BASIS. A MEDIATOR SHOULD NOT BREACH THE
CONFIDENCES OF A PARTY UNLESS SPECIFICALLY REQUIRED TO DO SO BY STATUTE, A
FINAL COURT ORDER, OR A FORMAL DIRECTIVE OF THE AGENCY EMPLOYING THE
The effectiveness of labor mediation results, in large measure, from its
being a confidential process. There is a general expectation that there will
be no revelation to parties external to the mediation process of the
substance of the discussions had during the mediation and no
characterization by the mediator of the status of the process or the conduct
of the parties, except as may be agreed by the parties. For example, while
the parties may agree on the wording of a public statement to be issued by
the mediator at the end of a session, it would be improper for the mediator
to disclose anything said or done in the confidential mediation session
without the parties’ consent. This does not preclude a mediator from
providing a general description of how the process of mediation works, or
from providing information that is public record. Mediator communication
with the press should be confined to the boundaries shaped by the reasonable
expectations of the parties.
The restrictions on discussions of mediations with third parties does not
preclude the mediator from advising the agency that a mediation has been
held, or that another session will or will not be held, or other information
necessary for the administration of the agency and the management of the
agency’s personnel and caseload. It does not prevent a mediator from
seeking professional advice on the conduct of the mediation from a colleague
within the agency, including discussion of the specific issues, proposals
and postures of the parties. The duty of confidentiality as to non-parties
in binding on the agency itself and all employees of the agency, as they
stand in the shoes of the mediator with respect to disclosure of information
regarding the mediation.
In the event that an outside party seeks to compel disclosure of
confidential information from a mediator, the mediator should immediately
advise the parties and the agency. The interest of the agency in protecting
the integrity of the mediation process is distinct from the interests of the
parties in protecting the confidentiality of communications during a
particular mediation, and the agreement of the parties to a forced
disclosure of information does not control the mediator’s course of
action. Ultimately, the mediator is bound to abide by the directives of
the agency, as the agency is entrusted by the enabling authority with
responsibility for the mediation process, and the mediator acts as the
agency’s instrument in implementing the process. Unless some other protocol
is established by a statute or rule which is directly on point, the agency
should not direct the mediator to disclose such information unless given
permission by the parties and unless the agency is satisfied that disclosure
will not compromise the integrity and effectiveness of the mediation process
as a whole. In the event that the agency and/or the mediator is ordered by
a court to disclose confidential information, and the agency determines that
such disclosure would compromise the integrity or the effectiveness of the
mediation process as a whole, the agency should seek every appropriate means
of relief from the order, including an appeal, and/or stay pending appeal,
and/or a request for modification in the order to make it consistent with
the mediation process as envisioned by the enabling authority. The
obligation to defend the integrity and effectiveness of the mediation
process begins with the mediator, but rests finally with the agency, and
this Chapter does not require the individual mediator to suffer court
sanctions in order to comply with the obligation to maintain
Mediators routinely, and properly, have separate conversations with the
parties on substantive issues that they could never discuss ex parte with an
adjudicator. The parties’ confidence that the statements they make to the
mediator will not be divulged without permission is what allows, and even
encourages, them to speak honestly to the mediator. Full disclosure from
the parties allows the mediator to gain the understanding and insight
necessary to bring the case to a successful conclusion. A mediator must
respect the participants’ confidence that statements they make will not be
divulged without permission. Mediators walk a fine line between maintaining
confidences and facilitating agreement. Mediators have a variety of
techniques to reconcile the tension between these two roles. No particular
technique is mandated, but it is imperative that the mediator ensure that
all participants, at the outset, understand the ground rules and that the
mediator conform to the ground rules throughout the mediation.
Section 3: THE MEDIATOR’S EFFORTS TO PERSUADE THE
PARTIES TO REACH AGREEMENT MAY NOT EXTEND TO MAKING MATERIAL MISSTATEMENTS
OF FACT OR LAW.
A wide variety of techniques and approaches are available for use in
mediation, but mediators typically and generally attempt to persuade parties
to accept compromises on their own proposals and to accept proposals that
may further the interests of the other party. All parties understand that
the process of negotiating and mediating involves persuasion, and that the
parties must depend upon their own assessments of the merits and demerits of
a proposal or an overall agreement.
At the same time that the parties to a mediation can be expected to
overstate their cases in support of their demands and offers, the success of
a mediation is predicated on the honesty of the mediator, and the parties’
perception that the mediator is honest. While the settlement of a case may
be premised on statements that might not meet the “truth, the whole truth,
and nothing but the truth” standard imposed on sworn testimony, a reputation
for dishonesty will be harmful to the mediator’s effectiveness in future
cases. Moreover, a reputation for dishonesty will harm the agency’s
effective pursuit of the goals established by the enabling authority. A
mediator must not knowingly make a material misstatement of fact or law,
including a knowingly false statement as to the likely interpretation or
effect of proposed contract language, in order to persuade a party to reach
agreement. A mediator may avoid answering a question in order to avoid the
choice between giving an honest answer which would damage the prospects of
voluntary settlement and giving a dishonest answer. Further, the mediator
is not the guarantor of a party’s understanding of the agreement, and the
duty to refrain from false statements does not extend to fully informing a
party of the implications of a given proposal, nor to correcting the party’s
own incorrect statements about the effect of agreeing to a proposal. A
mediator should avoid, however, being the source or conveyor of
disinformation, or ratifying or endorsing any party’s patently incorrect
statements about a proposal.
Section 4: MEDIATORS SHOULD NOT ALLOW THEIR PERSONAL
VALUES OR OPINIONS TO INTERFERE WITH REACHING AGREEMENT ON TERMS ACCEPTABLE
TO THE PARTIES. MERE DISAGREEMENT WITH THE OBJECTIVES OF ONE OR BOTH
PARTIES DOES NOT EXCUSE THE MEDIATOR FROM SEEKING TO FINALIZE AN AGREEMENT.
MEDIATORS OPERATE UNDER ENABLING AUTHORITIES WHICH GENERALLY ENDORSE THE
PURSUIT OF VOLUNTARY AGREEMENTS ON TERMS ACCEPTABLE TO BOTH PARTIES.
MEDIATORS ARE GENERALLY FREE TO FACILITATE ANY PROPOSAL THE PARTIES MAY
CHOOSE TO ADVANCE. MEDIATORS ARE NOT RESPONSIBLE FOR PROVIDING LEGAL ADVICE
TO THE PARTIES OR FOR INTERPRETING THEIR ENABLING AUTHORITIES OR OTHER
PROVISIONS OF LAW. AGENCIES SHOULD ESTABLISH POLICIES GUIDING MEDIATORS,
WHERE A MEDIATOR KNOWS THAT THE TERMS DESIRED BY THE PARTIES ARE CLEARLY
PROHIBITED BY THE ENABLING AUTHORITY.
Labor mediators typically view their responsibility as being to the parties
and to the settlement, and have no stake in the substance of the agreement,
so long as it is acceptable to the parties. This course of action is
generally inferred from the enabling
authorities which, in most instances, speak to process issues in mediation
while stating little or nothing about any proactive responsibility
for content by the mediator. In some cases, the enabling authority mandates
or prohibits inclusion of specific items in a collective bargaining
agreement. For example: A contract provision conferring a right to strike
would undoubtedly contravene the Taylor Law in New York; a contract
provision concerning pensions would undoubtedly contravene the Personnel
System Reform Act applicable to state employees in Washington.
In most circumstances, the mediator has an affirmative obligation not to
interfere with the content of a proposal, merely because the mediator finds
the proposal ill-advised, or personally offensive, or inconsistent with the spirit as
opposed to the letter of some relevant legal or social principle. The
substance of the agreement remains the province of the parties. A party is
free to make an agreement that is unfair or even foolish, and the mediator's
disagreement with or reservations about the substance of a
given proposal or an overall agreement
does not relieve the mediator of
the obligation to truthfully communicate offers and use his or her
best efforts to aid the parties in reaching agreement.
The mediator is not to act as or hold him or herself out as legal counsel to
the parties. However, the demands of neutrality include fidelity to the
statute or other enabling authority, and a mediator does have a professional
responsibility to be familiar with the
terms of the enabling authority under which he or she acts, and with the
policies of the agency concerning illegal and prohibited bargaining
proposals. An agency has a responsibility to provide guidance to its
mediators as to how the agency intends them to
respond in a situation where the mediator
is confronted with a proposal that is in dispute in the course of the
mediation, which the mediator knows to a certainty is directly prohibited by
the enabling authority.
Such guidance may take the form of a standing policy or it may be
directions as to who in the agency should be contacted for ad hoc direction
in any given case. The mediator has a responsibility to conduct him or
herself in accordance with such policies or directions. If consistent with
such policies or directions, the mediator may, for example, direct the
parties to confer with their legal counsel regarding the proposal, assist
the parties in finding alternatives which do not pose the same legal
difficulties, or, if the parties refuse to modify the clearly illegal
proposal, may decline to facilitate agreement on that portion of the
dispute. Whatever course of action or inaction is directed by the agency,
the mediator should take care to avoid the appearance that the agency is in
any fashion endorsing the illegal proposal.
Section 5: AS MEMBERS OF THE BROADER LABOR RELATIONS
COMMUNITY, MEDIATORS MAY PARTICIPATE IN THE PROFESSIONAL ACTIVITIES OF THAT
COMMUNITY TO BETTER EXPRESS THEIR UNDERSTANDING OF LABOR RELATIONS AND TO
MAINTAIN ONGOING RELATIONSHIPS WITH PARTIES THAT FURTHER THE OVERALL GOAL OF
POSITIVE LABOR RELATIONS. HOWEVER, MEDIATORS, LIKE ALL OTHER AGENCY
PERSONNEL, SHOULD AVOID SOCIAL OR PERSONAL INTERACTIONS THAT WOULD CAUSE
OTHERS TO QUESTION THEIR IMPARTIALITY.
The process of mediation is facilitated not only by the mediator’s active
role in particular cases but also by the mediator’s active role in the labor
relations professional community as a whole. Mediator involvement in the
community that conveys the mediator’s understanding of labor relations works
to the advantage of the agency and the process. However, mediators must walk
a fine line between positive professional relationships that are developed
in an impartial manner and social or personal activities that can impair the
mediator’s acceptability as an impartial agent of the agency. This is
particularly so in agencies where the same personnel mediate and serve as
adjudicators. Mediators must be mindful of Section 3 of the Code of
Professional Conduct for Labor Mediators:
Mediators should not use their position for private gain or advantage, nor
should they engage in any employment activity, or enterprise which will
conflict with their work as mediators, nor should they accept any money or
thing of value for the performance of their duties - other than their
regular salary [or compensation] - or incur obligations to any party which
might interfere with the impartial performance of their duties.
APPENDIX 1 TO CHAPTER FOUR
Code of Professional Conduct for
Adopted jointly by the Federal Mediation and Conciliation Service of the
United States and the Association of Labor Relations Agencies.
Federal Mediation and Conciliation Service (FMCS)
Created by the Labor Management Relations Act of 1947, the Federal Mediation
and Conciliation Service (FMCS) is an independent agency of the U.S. Government.
The Service is mandated to use mediation and other forms of dispute resolution
to promote labor-management peace in the United States. Specifically, FMCS is
responsible to prevent or minimize labor-management conflict in the private and
public sectors of the American economy, exclusive of the railroad and airline
industries. The agency’s national headquarters is in Washington, DC with
regional offices located in New York, Atlanta, Chicago, Los Angeles, and
Minneapolis. In addition, there are field offices located throughout the nation.
Association of Labor Relations Agencies (ALRA)
The Association of Labor Relations Agencies (ALRA), founded in 1952, is
comprised of nearly 100 impartial governmental and private nonprofit agencies in
the United States and Canada. These agencies are responsible for the
administration of labor-management relations laws or services including, but not
limited to, mediation, conciliation, fact-finding, arbitration, and
adjudication. The member agencies of ALRA include all of the major federal,
state, provincial, and municipal/local agencies in the United States and Canada.
The practice of mediation is a profession with ethical responsibilities and
duties. Those who engage in the practice of mediation must be dedicated to the
principles of free and responsible collective bargaining. They must be aware
that their duties and obligations relate to the parties who engage in collective
bargaining, to every other mediator, to the agencies which administer the
practice of mediation, and to the general public.
Recognition is given to the varying statutory duties and responsibilities of
the city, state, and federal agencies. This Code, however, is not intended in
any way to define or adjust any of these duties and responsibilities nor is it
intended to define when and in what situations mediators from more than one
agency should participate. It is, rather, a personal code relating to the
conduct of the individual mediator.
This Code is intended to establish principles applicable to all professional
mediators employed by city, state or federal agencies and to mediators privately
retained by parties.
The mediation process helps to promote economic freedom in assisting labor
and management resolve collective bargaining controversies. The practitioners of
labor mediation, therefore, have a high professional responsibility to the
parties, to the public, and to mediator colleagues.
Representatives of the Federal Mediation and Conciliation Service and the
Association of Labor Relations Agencies, in consideration of these requirements,
decided at a meeting held in November 1963 in Hollywood, Florida to attempt to
write a set of canons embodying the moral and professional duties and
responsibilities of mediators.
Liaison Committees representing the FMCS and the ALRA were established and,
after a series of meetings, this Code was drafted and thereafter adopted by the
two organizations in Minneapolis, Minnesota in September 1964.
The text of this Code remains basically unchanged from its adoption in 1964
except for the addition of graphics to reflect today’s more diverse workforce
and the use of gender neutral language. It is being printed by FMCS with the
thanks and permission of ALRA.
Code of Professional Conduct for
1. The Responsibility of Mediators Toward the Parties
The primary responsibility for the resolution of a labor dispute rests upon the
parties themselves. Mediators at all times should recognize that the agreements
reached in collective bargaining are voluntarily made by the parties. It is the
mediator’s responsibility to assist the parties in reaching a settlement.
It is desirable that agreement be reached by collective bargaining without
mediation assistance. However, public policy and applicable statutes recognize
that mediation is the appropriate form of governmental participation in cases
where it is required. Whether and when mediators should intercede will normally
be influenced by the desires of the parties. Intercession by mediators on their
own motion should be limited to exceptional cases.
The mediators must not consider themselves limited to keeping peace at the
bargaining table. Their role should be one of being a resource upon which the
parties may draw and, when appropriate, they should be prepared to provide both
procedural and substantive suggestions and alternatives which will assist the
parties in successful negotiations.
Since mediation is essentially a voluntary process, the acceptability of the
mediator by the parties as a person of integrity, objectivity, and fairness is
absolutely essential to the effective performance of the duties of the mediator.
The manner in which mediators carry out their professional duties and
responsibilities will measure their usefulness as a mediator. The quality of
their character as well as their intellectual, emotional, social, and technical
attributes will be revealed by the conduct of the mediators and their oral and
written communications with the parties, other mediators, and the public.
2. The Responsibility of Mediators Toward Other Mediators
Mediators should not enter any dispute which is being mediated by another
mediator or mediators without first conferring with the person or persons
conducting such mediation. The mediator should not intercede in a dispute merely
because another mediator may also be participating. Conversely, it should not be
assumed that the lack of mediation participation by one mediator indicates a
need for participation by another mediator.
In those situations where more than one mediator is participating in a
particular case, each mediator has a responsibility to keep the others informed
of developments essential to a cooperative effort and should extend every
possible courtesy to fellow mediators.
The mediators should carefully avoid any appearance of disagreement with or
criticism of their mediator colleagues. Discussions as to what positions and
actions mediators should take in particular cases should be carried on solely
between or among the mediators.
3. The Responsibility of Mediators Toward Their Agency and Their Profession
Agencies responsible for providing mediation assistance to parties engaged in
collective bargaining are a part of government. Mediators must recognize that,
as such, they are part of government. Mediators should constantly bear in mind
that they and their work are not judged solely on an individual basis but they
are also judged as representatives of their agency. Any improper conduct or
professional shortcoming, therefore, reflects not only on the individual
mediator but also upon the employer and, as such, jeopardizes the effectiveness
of the agency, other government agencies, and the acceptability of the mediation
Mediators should not use their position for private gain or advantage, nor
should they engage in any employment activity, or enterprise which will conflict
with their work as mediators, nor should they accept any money or thing of value
for the performance of their duties - other than their regular salary - or incur
obligations to any party which might interfere with the impartial performance of
4. The Responsibility of Mediators Toward the Public
Collective bargaining is in essence a private, voluntary process. The primary
purpose of mediation is to assist the parties to achieve a settlement. Such
assistance does not abrogate the rights of the parties to resort to economic and
legal sanctions. However, the mediation process may include a responsibility to
assert the interest of the public that a particular dispute be settled; that a
work stoppage be ended; and that normal operations be resumed. It should be
understood, however, that the mediators do not regulate or control any of the
content of a collective bargaining agreement.
It is conceivable that mediators might find it necessary to withdraw from a
negotiation, if it is patently clear that the parties intend to use their
presence as implied governmental sanction for an agreement obviously contrary to
It is recognized that labor disputes are settled at the bargaining table;
however, mediators may release appropriate information with due regard (1) to
the desires of the parties, (2) to whether that information will assist or
impede the settlement of the dispute, and (3) to the needs of an informed
Publicity shall not be used by mediators to enhance their own position or that
of their agency. Where two or more mediators are mediating a dispute, public
information should be handled through a mutually agreeable procedure.
5. The Responsibility of Mediators Toward the Mediation Process
Collective bargaining is an established institution in our economic way of life.
The practice of mediation requires the development of alternatives which the
parties will voluntarily accept as a basis for settling their problems. Improper
pressures which jeopardize voluntary action by the parties should not be a part
Since the status, experience, and ability of mediators lend weight to their
suggestions and recommendations, they should evaluate carefully the effect of
their suggestions and recommendations and accept full responsibility for their
honesty and merit.
Mediators have a continuing responsibility to study industrial relations and
conflict resolution techniques to improve their skills and upgrade their
Suggestions by individual mediators or agencies to parties, which give the
implication that transfer of a case from one mediation "forum" to another will
produce better results, are unprofessional and are to be condemned.
Confidential information acquired by mediators should not be disclosed to others
for any purpose or in a legal proceeding or be used directly or indirectly for
the personal benefit or profit of the mediator.
Bargaining positions, proposals, or suggestions given to mediators in confidence
during the course of bargaining for their sole information should not be
disclosed to the other party without first securing permission from the party or
person who gave it to them.