AI’S “ChatGPT” CAN HELP UNION REPS NOW
How often have you been frustrated trying to find someone in the union who knew the answer to a question? Either you can’t find them or they do not know the answer when you need it. Well, those days are coming to an end thanks to artificial intelligence programs like ChatGPT. Although it has some work to do before it takes our breath away with its expertise, here is an example of what it can already do for federal employee union reps.
We signed up for it, which is currently free unless you want to upgrade. Once enrolled we tested it with some typical questions the average union rep might have. We wanted to see whether it was not just correct, but also the detail and depth of its answer. The first question we asked it was, “How does FLRA define a past practice?” Here is the answer we got back in seconds.
The Federal Labor Relations Authority (FLRA) is an independent agency of the United States government that administers the Federal Service Labor-Management Relations Statute (FSLMRS). Under the FSLMRS, a past practice is a course of conduct that has consistently been followed by an agency and a labor organization over a significant period of time and that the parties have come to rely on as a established way of conducting their relations.
In order for a past practice to be considered binding, it must be clear, contemporaneous, and accepted by both parties. In other words, the practice must have been consistently followed and understood by both the agency and the labor organization, and it must have been accepted by both parties as the way in which they conduct their relations.
The FLRA may consider past practices when interpreting the provisions of a collective bargaining agreement or when determining the parties’ rights and obligations under the FSLMRS. However, past practices are not automatically binding and may be changed by the parties through negotiation or other means.
Not bad at all.
So, then we wondered whether it could give us an answer with citations to specific cases. We asked it, “Cite the FLRA decisions which explain what an illegal bypass of the union is.” Here is what we got back in seconds.
The Federal Labor Relations Authority (FLRA) is an independent federal agency that administers the labor-management relations program for federal agencies and employees. The FLRA is responsible for interpreting and enforcing the Federal Service Labor-Management Relations Statute (FSLMRS), which sets out the rights and responsibilities of federal agencies, unions, and employees in the federal workplace.
There are several FLRA decisions that provide guidance on what constitutes an illegal bypass of a union under the FSLMRS. Here are a few examples:
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- In Department of the Army, Fort Sill, Oklahoma and American Federation of Government Employees, Local 1417, 35 FLRA 572 (1990), the FLRA held that an agency violated the FSLMRS when it entered into a memorandum of understanding with a group of employees that directly affected their terms and conditions of employment, without first providing the union with notice and an opportunity to negotiate over the terms of the agreement.
- In Department of the Army, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 36 FLRA 687 (1990), the FLRA found that an agency violated the FSLMRS when it communicated directly with a group of employees about a proposed change to their work schedule, rather than communicating with the union as the exclusive representative of the employees.
- In Department of the Army, U.S. Army Aviation and Missile Command, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, 38 FLRA 573 (1990), the FLRA ruled that an agency violated the FSLMRS when it bypassed the union and entered into a collective bargaining agreement with a group of employees, without providing the union with notice and an opportunity to negotiate over the terms of the agreement.
These decisions demonstrate that an illegal bypass of a union occurs when an agency or supervisor deals directly with employees represented by a union, rather than negotiating or communicating with the union itself, in matters that concern terms and conditions of employment. The FLRA has the authority to investigate allegations of illegal bypass and, if it finds that an agency or supervisor has violated the FSLMRS, it can issue an order requiring the agency or supervisor to stop the illegal conduct and take any necessary corrective action.
Frankly, that is damn good. It may not be as detailed an answer as an experienced national rep or attorney provides, but then again we got the answer in seconds.
It also handled questions we had about MSPB by providing the following when we asked it to explain how MSPB defines a similarly-situated employee.
In the context of personnel decisions, a similarly-situated employee is someone who holds a similar position and has similar job duties and responsibilities as the employee who is appealing a decision. When evaluating an appeal, the MSPB may consider whether the employee was treated differently from similarly-situated employees in similar circumstances. This may involve comparing the employee’s situation to that of other employees who were involved in similar incidents or who were subject to similar disciplinary actions.
The MSPB may also consider whether the employee was treated differently from similarly-situated employees who were not involved in the same incident or who were not subject to the same disciplinary action. In these cases, the MSPB may consider whether there were any differences between the employee and the similarly-situated employees that would justify different treatment.
It is important to note that the MSPB’s definition of a similarly-situated employee may vary depending on the specific circumstances of the case and the issues that are being raised in the appeal.
Ditto for the EEOC on that question.
In the context of employment discrimination cases, a similarly-situated employee is someone who holds a similar position and has similar job duties and responsibilities as the employee who is alleging discrimination.
When evaluating an employment discrimination claim, the EEOC may consider whether the employee was treated differently from similarly-situated employees in similar circumstances. This may involve comparing the employee’s situation to that of other employees who were involved in similar incidents or who were subject to similar actions or decisions by the employer.
The EEOC may also consider whether the employee was treated differently from similarly-situated employees who were not involved in the same incident or who were not subject to the same actions or decisions by the employer. In these cases, the EEOC may consider whether there were any differences between the employee and the similarly-situated employees that would justify different treatment.
It is important to note that the EEOC’s definition of a similarly-situated employee may vary depending on the specific circumstances of the case and the issues that are being raised in the discrimination claim.
Of course, AI is still new and it has its limits. For example, we asked it the following: “In which decisions issued since 2010 does FLRA define a past practice?” only to be told the following:
I’m sorry, but I am unable to access specific decisions issued by the FLRA or provide a list of decisions in which the FLRA has defined a past practice. As a language model, I do not have access to current events or the ability to browse the internet. My responses are based on my training data, which has a knowledge cutoff date of 2021.
But if we had to provide a bottom-line recommendation as to whether it is time for unions to start using AI tools to boost their representation efforts we have to say YES with a caution. In any significant situation you ultimately should track down that experienced national rep for her thoughts, but you no longer have to wait to get started in the general direction of a solution. And don’t think you can start laying off paid staff. But you should expect that your national leaders are thinking about how they can build AI into the culture of the union. If all you get back when you ask a national elected leader about AI is a big DUHHHH, you got problems.
P.S. Don’t forget that you have the three web sites below if you want to do some free online research yourself into FLRA, MSPB or EEOC case law:
https://www.flra.gov/decisions
