[ v23 p405 ]
23:0405(57)MC
The decision of the Authority follows:
23 FLRA No. 57
PETITION FOR AMENDMENT OF RULES Case No 0-MC-10
DECISION ON PETITION FOR
AMENDMENT OF RULES
The Petition for Amendment of Rules was filed pursuant to 5 U.S.C.
Section 553(e) and 5 U.S.C. Section 7134 and seeks an amendment to three
provisions in the Authority's Rules and Regulations, specifically 5 CFR
Sections 2423.5, 2424.5 and 2424.10.
I. Establishment of Deadlines for Deciding Scope of
Bargaining Issues Under Section 7117(c)
Petitioner proposes the following amendment to section 2424.10(a) of
the Authority's Rules and Regulations to provide a deadline for issuance
of Authority negotiability decisions:
Except in cases in which hearings are held, decisions in cases
arising under 5 U.S.C. Section 7117(c) shall be issued within 60
days of the submission of the union's response to the agency's
statement of position.
In support of this proposed revision, the Petitioner relies on
section 7117(c)(6) of the Federal Service Labor-Management Relations
Statute (the Statute) which requires the Authority to expedite
negotiability proceedings.
The Authority rejects the proposal to establish a regulatory time
limit for the issuance of negotiability decisions. While the timely
resolution of negotiability disputes is essential to the effective
administration of the Federal labor-management relations program, we do
not believe that the establishment of a 60-day time limit applicable to
all negotiability appeals will assist in accomplishing that goal.
Negotiability cases vary substantially. The length of time it takes to
decide a particular case depends upon such factors as the number and
complexity of the proposals at issue; the relationship of the disputed
proposals to other cases; the size and composition of our case docket;
the need to give priority consideration to some cases; and the
availability of resources. The assumption that all negotiability
decisions could be issued within a fixed regulatory time limit would
ignore the existence of all these factors and might well reduce the
operational flexibility necessary to enable us to effectively carry out
our other responsibilities under the Statute.
The Authority has established goals which will significantly reduce
the time taken to issue all of our decisions. Our immediate goal is to
decide all cases within six months of their receipt. As of April 1,
1986, there were 512 cases that would be six months old on September 30,
1986; as of August 31, 1986 that figure was reduced to 232. We will
continue our efforts until the goal is met.
II. Recognition of the Relationship Between Scope of
Bargaining Disputes and Failure to Bargain Disputes.
The petitioner proposes that sections 2423.5 and 2424.5 of the
Authority's Rules and Regulations should be replaced by the following:
(a) If a union files an unfair labor practice charge over an
agency's failure to bargain over a matter, and the union has
already filed an appeal of the agency's allegation that the duty
to bargain does not extend to that matter, a complaint shall be
issued and the agency required to answer, but further proceedings
concerning the unfair labor practice charge will be suspended
pending decision on the duty to bargain issue.
(b) If during the investigation of a charge that an agency has
failed to bargain in good faith, the agency alleges as a defense
that the duty to bargain in good faith does not extend to the
matter sought to be bargained, the agency will be instructed to
submit its allegation in writing to the union. If the union files
a timely appeal of the allegation, a complaint on the unfair labor
practice charge will be issued and an answer required, but further
proceedings concerning the unfair labor practice charge will be
suspended pending decision on the duty to bargain issue.
(c) If at any time after issuance of the complaint the agency
alleges as a defense that the duty to bargain in good faith does
not extend to the matter sought to be bargained, the agency will
be instructed to submit its allegation in writing to the union.
If the union files a timely appeal of the allegation, further
proceedings concerning the unfair labor practice charge will be
suspended pending decision on the duty to bargain issue.
(d) Upon issuance of the Authority's decision on the duty to
bargain issue, the proceedings on the unfair labor practice case
will be resumed in a manner consistent with that decision.
The petitioner asserts that adoption of this proposal is necessary to
allow for the pursuit of unfair labor practice remedies in situations
where an agency simply refuses to negotiate over contract proposals on
the basis that they are outside the duty to bargain.
The Authority rejects this proposal for the following reasons.
Sections 2423.5 and 2424.5 of the Authority's Rules and Regulations
provide, in pertinent part, that where a labor organization files an
unfair labor practice charge which involves a negotiability issue and
also files a petition for review of the same negotiability issue, it is
required to choose which procedure to pursue first. Cases which involve
only an agency's allegation that the duty to bargain in good faith does
not extend to the matter proposed to be bargained, and which do not
involve alleged unilateral changes in conditions of employment, must be
processed exclusively under the negotiability procedures in part 2424 of
the Authority's Rules and Regulations. In our view, these regulations
are consistent with the language of sections 7117 and 7118 of the
Statute, which specify separate procedures for resolving negotiability
and unfair labor practice cases, respectively. They are also consistent
with the legislative history of the Statute, which indicates that
Congress considered but rejected a provision which would have required
all negotiability disputes to be resolved in unfair labor practice
proceedings. /*/
Unfair labor practice remedies are available in appropriate refusal
to bargain situations, such as (1) where the refusal to negotiate is
accompanied by unilateral changes in conditions of employment (Veterans
Administration, Washington, D.C., 22 FLRA No. 69 (1986)); and (2) where
an agency refuses to bargain over a proposal substantially identical to
one which the Authority has previously determined to be negotiable under
the Statute. See Department of the Air Force, U.S. Air Force Academy, 6
FLRA 548 (1981), affirmed sub nom. Department of the Air Force, United
States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983);
Department of Treasury, Internal Revenue Service, Memphis Service
Center, 15 FLRA 829 (1984). We conclude that Petitioner's suggestion to
provide for unfair labor practice remedies beyond these circumstances,
such as where an agency is merely alleging -- in the absence of clear
precedent to the contrary -- that a disputed proposal is nonnegotiable,
would be contrary to the language and legislative history of the Statute
as well as Authority precedent.
III. Conclusion
For the reasons stated above, the proposed amendments to the
Authority's Rules and Regulations contained in the Petition for
Amendment of Rules must be rejected. Accordingly, the Petition is
denied.
Issued, Washington, D.C., September 23, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) See 124 Cong. Rec. 29184 (1978), reprinted in Sub-comm. on Postal
Personnel and Modernization of the House Comm. on Post Office and Civil
Service, 96th Cong., 1st Sess., Legislative History of the Federal
Service Labor-Management Relations Statue, Title VII of the Civil
Service Reform Act of 1978, at 927 (Comm. print No. 96-7).