[Federal Register: December 2, 1998 (Volume 63, Number 231)]
[Rules and Regulations]
[Page 66405-66418]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de98-1]
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Rules and Regulations
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2424
Negotiability Proceedings
AGENCY: Federal Labor Relations Authority.
ACTION: Final rule.
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SUMMARY: The Chair and Members of the Authority component (the
Authority) of the Federal Labor Relations Authority (the FLRA) revise
the regulations concerning negotiability proceedings. The revisions are
designed to expedite these proceedings and facilitate dispute
resolution.
EFFECTIVE DATE: April 1, 1999.
ADDRESSES: Written comments received are available for public
inspection during normal business hours at the Office of Case Control,
Federal Labor Relations Authority, 607 14th Street, NW., Washington,
D.C. 20424-0001.
FOR FURTHER INFORMATION CONTACT: Peter Constantine, Office of Case
Control, at the address listed above or by telephone # (202) 482-6540.
SUPPLEMENTARY INFORMATION:
Background
In an effort to improve its decision-making processes, the Chair
and Members of the Authority established an internal task force to
study and evaluate the policies and procedures in effect concerning
negotiability proceedings under 5 U.S.C. 7117. To this end, the
Authority published a Federal Register notice (63 FR 19413) (April 20,
1998) inviting the public to submit written comments on several
subjects relevant to negotiability proceedings, and to participate in a
focus group held in May 1998 to discuss these matters.
Subsequently, the Authority proposed revisions to part 2424 of the
Authority's regulations concerning negotiability proceedings. The
proposed rule was published in the Federal Register and public comment
was solicited on the proposed changes (63 FR 48130) (September 9,
1998). The Authority invited comment on the proposed rule in two ways:
by convening meetings in October 1998 in Chicago, IL, Oakland, CA, and
Washington, DC, and by offering the public an opportunity to submit
written comments. Formal written comments were submitted by seven
agencies, six exclusive representatives, and two individuals. In
addition, over 80 individuals, representing many agencies and exclusive
representatives, participated in meetings to discuss the proposed
regulations. All comments, whether expressed orally in a meeting or
submitted in writing, have been considered prior to publishing the
final rule, and most comments are specifically addressed in the
section-by-section analysis below. Revisions to the proposed rule have
been made, for the most part, in response to suggestions and comments
received.
Significant Changes
The final rule, like the proposed rule, involves important changes
in the processing of negotiability appeals. The final rule incorporates
significant changes from the proposed rule, based on consideration of
comments received. The most significant change is that the Authority
determined not to include in the final rule requirements that: (1) An
exclusive representative file with the Authority a notice of intent to
institute a negotiability appeal; and (2) parties participate in a
conference with a representative of the FLRA prior to the filing of a
petition for review by the exclusive representative concerning a
proposal for bargaining. These proposed requirements would have applied
only to bargaining proposals; they were not proposed to apply to
disputes involving provisions that had been disapproved by agency heads
under 5 U.S.C. 7114(c). The proposed notice of appeal and prefiling
conference requirements were intended to provide an opportunity to
explore resolution of the dispute, and narrow and clarify issues
remaining to be resolved on appeal.
Many of the commenters to the proposed rule objected to the
proposed notice of appeal and prefiling conference requirements. The
reasons for these objections included comments that the notice of
appeal and prefiling conference would lead to unnecessary delay in
resolution of the negotiability appeal, and comments that the Authority
did not have a sufficient interest in a prefiling dispute to warrant
these regulatory requirements. Commenters generally agreed, however,
that a conference that included representatives of the parties and the
FLRA would be useful during the processing of a negotiability appeal.
In response to these comments, the final rule does not include the
notice of appeal and prefiling conference requirements. Instead, the
final rule provides for a ``post-petition conference'' to be held in
cases involving a proposal or provision after the exclusive
representative has filed its petition for review but before the agency
files its statement of position. The purpose of the post-petition
conference, which may be held in person or telephonically, is to ensure
that the parties have a common understanding of the meaning and impact
of the proposal or provision at issue; to determine whether there are
factual disputes concerning the proposal or provision; and to discuss
other relevant matters, including whether the parties wish to explore
alternative dispute resolution.
The final rule also differs from the proposed rule by eliminating
the provision that would have precluded parties from raising new
arguments after the close of the filing conferences. The final rule
requires that the agency raise and support in its statement of position
all of its arguments that a proposal or provision is outside the duty
to bargain or contrary to law, respectively. The exclusive
representative, in its response, is required to raise and support any
arguments opposing arguments made in the agency's statement of
position. The agency is then provided with a right to file a submission
not previously proposed: a reply to arguments raised for the first time
in the exclusive representative's response. This submission is limited
to replying to new arguments in the exclusive representative's
response.
In other respects, the final rule retains significant aspects of
the proposed rule. In particular, it establishes procedures designed to
facilitate the resolution in one proceeding of all issues raised in
[[Page 66406]]
connection with a petition for review, including those issues
previously processed exclusively under unfair labor practice or
grievance procedures. Among other things, with one exception, the final
rule retains the portion of the proposed rule that results in dismissal
without prejudice of a petition for review where an unfair labor
practice charge or grievance is pending over issues directly related to
the petition.
The proposed rule has also been modified in many other respects,
primarily in response to specific comments. All of the changes from the
proposed rule are described in the following sectional analysis of the
final rule.
Sectional Analyses
Sectional analyses of the amendments and revisions to part 2424,
Negotiability Proceedings, are as follows:
Part 2424--Negotiability Proceedings
Subpart A--Applicability of This Part and Definitions
Section 2424.1
Commenters recommended that the Authority change the effective date
of the rule to allow parties sufficient time to train employees and
develop procedures to protect their respective interests under the
revised rule. To address these concerns, the final rule establishes an
April 1, 1999 effective date.
Section 2424.2
Numerous commenters responded favorably to the addition of a
definition section to this part. Several changes have been made to
particular definitions, in response to suggestions offered by
commenters.
Changes have been made in subsection (a) and (c) to clarify and
distinguish the two types of disagreements over the duty to bargain,
which the proposed rule identified as ``bargaining disputes'' and
``negotiability disputes.'' Several commenters suggested that the term
``bargaining dispute'' was confusing in that it commonly is used to
apply to a broader range of disputes than contemplated by the
definition of the term in the proposed regulations, and other
commenters suggested alternative terms. To address these concerns, the
term ``bargaining dispute'' has been changed to ``bargaining obligation
dispute'' in the final rule. The term ``negotiability dispute'' has
been retained in the final rule. In order to avoid confusion over the
disputes to which these terms apply, examples have been provided in
both subsection (a) and subsection (c).
Several comments indicated that the concept of ``provision'' in
subsection (f) appeared to be broader than its proposed definition and,
in particular, should be defined to include a contract term imposed by
the Federal Service Impasses Panel pursuant to 5 U.S.C. 7119 and
disapproved by an agency head pursuant to 5 U.S.C. 7114(c). The final
rule is modified to reflect that a provision encompasses any matter
disapproved on agency head review.
With respect to the definition of ``service'' in subsection (g),
the final rule remains unchanged from the proposed rule and requires
that the exclusive representative serve its filings on both the
agency's principal bargaining representative and the head of the
agency. In this regard, the final rule does not incorporate the
recommendation of one commenter that the requirement for the exclusive
representative to serve copies of its filings be limited to service on
the agency head, as required in 5 U.S.C. 7117(c)(2)(B). The Authority
views service on both the agency's principal bargaining representative
and the agency head as important to ensure that appropriate agency
officials receive prompt notice of the exclusive representative's
filing of the petition for review, as well as subsequent filings.
Ensuring that appropriate agency officials receive prompt notice of the
filing of a petition for review is particularly important in view of
the requirement in Sec. 2424.23 of the final regulations that
appropriate agency officials be available and prepared to participate
in a post-petition conference within a short time after the filing of
the petition. Thus, although the final rule imposes a burden on
exclusive representatives, this burden is outweighed, in the
Authority's view, by the benefits resulting from the service
requirement.
The final rule in subsection (h) modifies the definition of
``severance'' from that in the proposed rule to make clear that the
purpose of severance is to determine whether a severed portion of a
proposal or provision is within the duty to bargain, or contrary to
law, in the event that some portions of the proposal or provision are
found to be outside the duty to bargain or contrary to law. In effect,
severing portions of a proposal or provision results in the creation of
separate proposals or provisions. Thus, severed portions must have
independent meaning, and any dispute over severed portions must be
argued separately. Resolving bargaining obligation and negotiability
disputes regarding portions of a proposal or provision lengthens the
time necessary to issue decisions and orders, and requires expenditures
of additional resources--separate arguments and responses--by both
parties. Accordingly, exclusive representatives should request
severance only in situations where they wish to bargain over portions
of a proposal, or have only portions of a provision included in a
collective bargaining agreement in the event that some portions are
found to be outside the duty to bargain or contrary to law.
One commenter suggested that the definition of ``written allegation
concerning the duty to bargain'' in subsection (i) be changed to
``written allegation'' or ``written allegation concerning the legality
of a proposal or provision'' to eliminate any confusion associated with
the term ``bargain,'' which is also used in the unfair labor practice
context. Although the final rule does not adopt this suggestion, the
definition of ``petition for review'' makes clear that appeals under
part 2424 must involve a negotiability dispute: if only a bargaining
obligation dispute is involved, then the appeal cannot be resolved
under part 2424.
As discussed in further detail in the commentary to Subpart B, the
definition of ``notice of intent to appeal'' in the proposed rule has
been eliminated from the final rule.
Finally, one commenter recommended that the final rule define the
term ``conditions of employment.'' The final rule does not adopt this
recommendation because the definition of this term is set forth in 5
U.S.C. 7103 (a)(14), and its inclusion in the regulations would be
duplicative.
Sections 2424.3-2424.9
These sections are reserved.
Subpart B--Alternative Dispute Resolution; Requesting and Providing
Allegations Concerning the Duty To Bargain
As noted in the introductory discussion, the Authority received
many comments objecting to the proposed prefiling requirement and, in
particular, prefiling conferences. Commenters did not, however, object
to the optional use of such procedures. Several commenters suggested
that mandatory prefiling conferences would result in unnecessary delay
and would involve the Authority too early in the negotiability process.
Commenters also suggested that efforts directed at
[[Page 66407]]
alternative dispute resolution would be better handled through programs
and/or agencies specifically designed for that purpose, such as the
FLRA's Collaboration and Alternative Dispute Resolution Program (CADR)
or the Federal Mediation and Conciliation Service. Other commenters
questioned the legality of the proposed prefiling conditions as well as
the proposal to preclude parties from later raising arguments that had
not been raised during the prefiling conference. In response to these
comments, the final rule eliminates all proposed prefiling conditions,
including the notice of intent to appeal and the mandatory prefiling
conferences. As discussed in the commentary to Sec. 2424.10, however,
parties are encouraged to explore opportunities for resolution of
disputes that arise under part 2424.
Section 2424.10
Parties uniformly supported the retention of the CADR Program for
voluntary dispute resolution. The final rule encourages parties to
utilize the CADR process in an effort to reach a collaborative
resolution of issues that arise under part 2424. In response to
suggestions, the final rule includes point of contact information for
the CADR office.
Section 2424.11
The final rule on requesting and providing written allegations
concerning the duty to bargain has been modified to reflect the
elimination of proposed prefiling conditions governing petitions for
review. The rule retains the current procedure for requesting and
providing allegations concerning the duty to bargain. In response to a
commenter, the rule has been clarified to state that a union may file a
petition for review where an agency does not respond to a written
request for the agency's written allegation concerning the duty to
bargain. The regulation has also been clarified to state that, if an
agency provides the union an unrequested written allegation concerning
the duty to bargain, then the union may choose either to file a
petition for review or to wait and later request another written
allegation from the agency. A union is required to file a petition for
review, on penalty of losing its right to appeal the agency's
allegation, only where the agency's written allegation is in response
to a written request by the union.
Section 2424.12-2424.19
These sections are reserved.
Subpart C--Filing and Responding to a Petition for Review; Conferences
Section 2424.20
As noted in the earlier commentary concerning Subpart B, the
prefiling conditions have been eliminated. The final rule has been
modified to reflect this change.
One commenter suggested that agencies should be provided a right to
file petitions. This suggestion was not adopted because 5 U.S.C.
7117(c), which mandates the negotiability procedure, provides for
appeals by exclusive representatives only. In the event an agency
believes that a union has refused to bargain over a mandatory subject
of bargaining, it may file an unfair labor practice charge. See
American Federation of Government Employees v. Federal Labor Relations
Authority, 778 F.2d 850, 853 n.4 (D.C. Cir. 1985).
Section 2424.21
One commenter, noting that the proposed rule was silent on this
matter, suggested that the final rule specify that an agency head
disapproval of a provision under 5 U.S.C. 7114(c) triggers the time
limit for filing a petition for review. The final rule incorporates
this suggestion.
Section 2424.22
Several commenters asserted that the filing requirements were
unnecessarily legalistic and burdensome. Commenters recommended that
the final rule be revised to make clear the specific information the
exclusive representative is required to provide in its petition for
review. In response to these concerns, subsection (a), stating the
purpose of the petition for review, has been added, and subsection (b)
of the final rule, which specifies the information that must be
included in a petition for review, has been amplified. Also in response
to one comment, the final rule makes clear that an exclusive
representative is required to provide the meaning of a proposal or
provision in the petition for review. The final rule does not adopt the
suggestion of one commenter to delete the requirement that a table of
contents and table of authorities be included when a petition exceeds
25 double-spaced pages in length. These tables, which will be required
only for lengthy submissions, will assist both the parties and the
Authority in reviewing complex petitions.
One commenter questioned whether the proposed regulations intended
to delete the procedure in Sec. 2424.4(c) of the current regulations,
which provides that filing an ``incomplete petition for review will
result in the exclusive representative being asked to provide the
missing or incomplete information.'' The commenter is correct in that a
parallel section was not included in the proposed regulations, and is
not included in the final regulations. The Authority does not intend by
this to alter its current practice insofar as both parties are now, and
will in the future continue to be, given an opportunity to correct
minor or technical deficiencies in a filing. Such minor or technical
deficiencies include failing to provide the correct number of copies of
documents, or failing to include a statement of service. The
consequences of failure to comply with an order requiring such
correction are set forth in Sec. 2424.32(d). However, the fact that the
Authority will provide opportunities for parties to correct minor,
technical deficiencies in filing does not mean that parties may
reasonably rely on the Authority to provide them an opportunity to
correct other deficiencies, such as failure to raise and support, or
failure to respond to, an argument. Consistent with Sec. 2424.32(c),
these latter failures will, where appropriate, be deemed waivers or
concessions.
In response to comments that certain matters, including exclusive
representatives' requests for severance, and exclusive representatives'
assertions that proposals or provisions constitute procedures and/or
appropriate arrangements under 5 U.S.C. 7106(b) (2) and (3),
respectively, would be better addressed at a later stage in the
proceeding, the final rule has been changed. In particular, subsection
(c) of the final rule does not require that an exclusive representative
raise and address any request for severance in its petition for review.
Moreover, the responsibility of the exclusive representative to raise
any arguments concerning procedures and appropriate arrangements under
5 U.S.C. 7106 (b)(2) and (b)(3) has been moved to the exclusive
representative's response to the agency's statement of position set
forth in Sec. 2424.25 of the final rule. However, an exclusive
representative may choose to raise these matters in its petition for
review. As discussed in the commentary to Sec. 2424.24, if an exclusive
representative raises such matters in its petition for review, then the
agency is required to respond to the matters in its statement of
position because failure to do so may be deemed a waiver or concession.
The final rule also modifies the requirement that the exclusive
representative provide copies of authorities on which it relies. In
[[Page 66408]]
response to comments that this requirement would be burdensome, the
rule limits the documents that must be provided to those not ``easily''
available to the Authority. This is intended to clarify that copies of
such authorities as provisions in the United States Code, Government-
wide regulations, and published precedent need not be provided.
However, as agency regulations and such matters as sections in
collective bargaining agreements are not easily available, copies of
these must be provided. If a filing party is in doubt as to whether an
authority it relies on is easily available to the Authority, the party
is encouraged to seek guidance from the Case Control Office, whose
address and telephone number appear in 5 CFR 2429.24.
Section 2424.23
As noted previously, the proposed rule required a prefiling
conference in cases involving proposals for bargaining and a postfiling
conference in cases involving provisions disapproved by an agency head
under 5 U.S.C. 7114(c). Although commenters generally disfavored
mandatory prefiling conferences, commenters generally favored
postfiling conferences. The final rule provides in subsection (a) that
a representative of the FLRA will, where appropriate, schedule and
conduct a conference following the filing of a petition for review
involving proposals and provisions. Although a post-petition conference
is not required in all cases, it is expected that one will be held in
most cases. In response to a suggestion that a time frame be provided
for completion of the conference, the final rule provides that all
reasonable efforts will be made to schedule and conduct the post-
petition conference within 10 days of receipt of the petition for
review.
One commenter objected that post-petition conferences should not
include mandatory mediation or settlement discussions. Subsection (b)
of the final rule has been modified to eliminate any suggestion that
the post-petition conference is intended to mediate the dispute or
require settlement. Nevertheless, it is envisioned that parties will be
asked whether they would like to pursue alternative dispute resolution
options, including CADR services. Subsection (b) reflects that the
purpose of the conference is to assist the parties in discussing,
clarifying and resolving the issues in the negotiability appeal. These
issues include the meaning of a proposal or provision, whether there
are factual disputes, and other matters. Where appropriate,
modification of the wording of a proposal or provision to conform to
the intended or agreed-upon meaning of the proposal or provision will
be encouraged.
Several commenters objected to an automatic extension of the time
limits under Secs. 2424.24 and 2424.25. In response to these
objections, subsection (b) is modified to reflect that the subject of
extension of the time limits under Secs. 2424.24 and 2424.25--
specifically whether such extension is requested--will be discussed
during the post-petition conference, and that the FLRA representative
conducting the conference is authorized to grant a requested extension
when it would effectuate the purposes of the Federal Service Labor-
Management Relations Statute, 5 U.S.C. 7101 et seq. A request for an
extension of time also may be filed pursuant to Sec. 2429.23 of this
subchapter.
Several commenters asserted that parties would be more likely to
discuss, clarify and resolve their disputes if no record were made of
the conference. Other commenters recommended that, if a record of the
conference were prepared, then the Authority should make clear that
parties are not limited to arguments and assertions made during the
conference. The final rule retains the record of the conference,
providing in subsection (c) that a written statement of the conference,
including whether the parties agree on the meaning of the proposal or
provision and other appropriate matters, will be prepared at, or
following the conclusion of, the conference and will be provided to the
parties by the FLRA representative. However, commenters' assertions
that parties should not be prevented from raising and supporting new
arguments after the conclusion of the conference are addressed by the
modification to Sec. 2424.32(c) of the final rule, which clarifies that
an agency is not limited to the arguments it raises in a conference. As
described in the commentary to Sec. 2424.32(c), the final rule
clarifies that an agency is precluded from raising a new argument only
after the filing of its statement of position, and that an exclusive
representative is so precluded only after the filing of its response to
the statement of position. In this regard, the purpose of the
requirement in Sec. 2424.23 that the parties' representatives must be
prepared and authorized to discuss, clarify, and resolve bargaining
obligation and negotiability disputes is to facilitate discussion and
understanding and, thereby to expedite resolution of a petition for
review, not to ``lock'' the parties into particular arguments or
prevent the parties from raising new arguments in their subsequent
filings. The Authority intends, by this provision, to encourage the
parties to engage in a frank and open discussion of issues raised by
the petition for review.
Section 2424.24
The purpose of the statement of position has been added as
subsection (a) of this section. Several commenters questioned whether
the time limit for filing an agency's statement of position could be
extended. As explained in the commentary to Sec. 2424.23, an extension
of time will be granted by the FLRA representative at the post-petition
conference if it is requested and where the extension would effectuate
the purposes of the Statute. An extension also may be requested under
Sec. 2429.23 of this subchapter. The final rule makes clear in
subsection (b) that, unless an extension has been granted, the
statement of position must be filed within 30 days after the date the
head of the agency is served with a copy of the petition for review.
Because the 30-day time limit for filing a statement of position is
established by 5 U.S.C. 7117(c)(3), it cannot be shortened.
Accordingly, the final rule does not adopt the suggestion of one
commenter that the time limit for filing a statement of position be
limited to 15 days. However, because it does not establish the
Authority's jurisdiction over the petition for review, the 30-day time
limit for filing a statement of position, as well as the time limit set
forth in 5 U.S.C. 7117(c)(4) for filing the exclusive representative's
response, may be extended upon request and when it would effectuate the
purposes of the Statute.
Agencies uniformly objected, as previously noted, to the proposed
rule precluding any arguments in the statement of position that were
not raised in the conference prior to filing its statement of position.
The final rule, in Sec. 2424.32(c), is modified to reflect that an
agency is not limited to arguments made in the post-petition
conference; an agency is precluded from raising new arguments only
after the filing of its statement of position.
Comments to the proposed rule viewed it as overly burdensome and
unnecessary to require the agency to provide a copy of all the laws,
rules, regulations, and other authorities cited. As set forth
previously in connection with Sec. 2424.22, the final rule is changed
to require the agency to provide only those authorities that are not
``easily available.'' Also as set forth previously, examples of such
materials include, but are not limited to, agency rules or
[[Page 66409]]
regulations and provisions of a collective bargaining agreement. As
with Sec. 2424.22, and for reasons stated in the commentary to that
section, the final rule retains the requirement of a table of contents
and a table of authorities when a statement of position exceeds 25
double-spaced pages in length.
One commenter noted that, with respect to severance, it would be
unduly burdensome to anticipate how severance might affect proposals or
provisions in general when the exclusive representative has not stated
its position on severance. Responding to this concern, the final
regulation clarifies in subsection (d) that an agency is required to
respond to a severance request in its statement of position only when
the exclusive representative has requested severance in its petition
for review.
The Authority emphasizes that the agency is not limited in its
statement of position to responding to matters raised in the exclusive
representative's petition for review. However, under
Sec. 2424.32(c)(2), a failure to respond to an argument raised in the
exclusive representative's petition for review may, where appropriate,
be deemed a concession. Accordingly, the agency is required to respond
to arguments made in the exclusive representative's petition for
review, including arguments--such as severance and asserted exceptions
to management's rights--that the exclusive representative is not
required to include in a statement of position. Moreover, under
Sec. 2424.32(c)(1) of these regulations, the agency may not raise new
arguments, in this or any other proceeding, after the filing of the
statement of position. Therefore, the agency must raise and support in
its statement of position all of its bargaining obligation and
negotiability claims, whether or not those claims are responsive to
requests and arguments made in the exclusive representative's petition
for review.
Section 2424.25
As with Secs. 2424.22 and 2424.24, a subsection--(a)--stating the
purpose of the exclusive representative's response has been added.
Several commenters suggested that the time limits for filing a response
could not be extended. As noted earlier in connection with
Secs. 2424.23 and 2424.24, time limits may be extended when requested
and when such extension will effectuate the purposes of the Statute.
Thus, the final rule makes clear in subsection (b) that an exclusive
representative's response must be filed within 15 days of service of
the agency's statement of position, unless an extension of time has
been granted.
Subsection (c) of the final rule has been modified, based on
comments noted in the commentary to Sec. 2424.22. The modification
clarifies that, if the exclusive representative believes that a
proposal or provision is within the obligation to bargain or is not
contrary to law, respectively, because it comes within an exception to
management rights under section 7106(a), then the exclusive
representative is required to assert and support this claim either in
its petition for review or in its response to the agency's statement of
position. Exceptions to management rights, set forth in 5 U.S.C.
7106(b), include that a proposal or provision is bargainable at an
agency's election, that the proposal or provision constitutes a
procedure, and/or that it constitutes an appropriate arrangement. If
the exclusive representative does not assert in its petition for review
that an exception to management rights applies, then the exclusive
representative must do so in its response to the agency's statement of
position.
In general, the exclusive representative's response is limited to
matters raised in the agency's statement of position. The only
exception is a request for severance, which subsection (d) clarifies
may be asserted for the first time in a response.
As with Secs. 2424.22 and 2424.24 of the final rule, the
requirement that the exclusive representative provide a copy of all
laws, rules, regulations and authorities cited has been modified to
include only those authorities not easily available to the Authority.
The Authority emphasizes that, under Sec. 2424.32(c)(2), a failure
to respond to an argument raised in the agency's statement of position
may, where appropriate, be deemed a concession. Moreover, under
Sec. 2424.32(c)(1) of these regulations, the exclusive representative
may not raise new arguments, in this or any other proceeding, after the
filing of the response. Therefore, the exclusive representative must
raise and support in its response all of its arguments in support of
finding the proposal or provision within the duty to bargain or not
contrary to law, respectively. With the exception of severance, the
exclusive representative's response is limited to arguments raised in
the agency's statement of position.
Section 2424.26
A new section permitting a reply by the agency has been added to
the final rule. As outlined in the commentary to Secs. 2424.22 and
2424.25, the exclusive representative is not required in the initial
stage of the negotiability proceeding to anticipate agency arguments.
In particular, an exclusive representative's arguments concerning
exceptions to management rights and severance may be asserted for the
first time in the exclusive representative's response to the agency's
statement of position. In order that the agency has an opportunity to
address arguments raised for the first time in the exclusive
representative's response, this section of the final rule establishes
that the agency may file a reply to such arguments. The agency reply
constitutes a new filing that will, in some cases, extend the time
necessary to resolve a petition for review. However, the Authority
anticipates that permitting the filing of a reply will not delay
decisions but, rather, will expedite them by providing a more complete
record of the parties' arguments and authorities.
Subsection (a) of the final rule states the purpose of the agency's
reply. Subsection (b) provides that an agency must file any reply
within 15 days after it has been served with a copy of the exclusive
representative's response. Subsection (c) of the final rule outlines
the information to be included in the agency's reply and specifically
limits the agency's reply to those matters raised in the exclusive
representative's response to the agency's statement of position.
Subsection (d) addresses the agency's responsibility to explain with
particularity why the exclusive representative's request for severance,
if any, is not appropriate. Service requirements are outlined in
subsection (e) of the final rule.
The Authority emphasizes that an agency's reply is limited to
arguments raised for the first time in the exclusive representative's
response. Thus, as set forth earlier in the commentary to Sec. 2424.24,
the agency should respond fully in its statement of position to all
arguments raised in the exclusive representative's petition for review,
and should not defer such responses to its reply. A failure to respond
to arguments raised in the exclusive representative's response may be
deemed a concession under Sec. 2424.32 of these regulations.
Section 2424.27
Noting that the Authority seldom accepts additional submissions,
one commenter suggested that the regulations should reflect this
practice. In particular, the commenter recommended that the Authority
adopt an ``extraordinary circumstances'' standard concerning the filing
of additional submissions. The final rule incorporates this suggestion
and adopts the suggested standard. The final rule
[[Page 66410]]
also adopts the recommendation that any additional submission must be
filed no later than 5 days after receipt of the Authority's order
granting the request. The final rule does not adopt the suggestion that
the time for filing an opposition to an additional submission be
limited to 5 days after receipt of the additional submission and,
instead, provides that an opposition be filed no later than 15 days
after receipt of the additional submission. The additional time is
provided in recognition of the fact that the responding party may have
no advance notice that the submission will be filed and, as such, a 5-
day response period is not sufficient.
Sections 2424.28-2424.29
These sections are reserved.
Subpart D--Processing a Petition for Review
Section 2424.30
Several commenters addressed the proposed rule establishing a new
process for resolving petitions for review that concern both
negotiability and bargaining obligation disputes. Those in favor of the
proposed changes asserted that a unified process would be more
efficient than the present system. Those opposed to the changes
contended that the negotiability process does not lend itself to
addressing bargaining obligation disputes and that the existing system
does not need modification.
The Authority has determined that, with certain changes, the
proposed rule should be made final. In this regard, the Authority's
experience has been that the piecemeal resolution of bargaining
obligation and negotiability claims is both inefficient and
ineffective. The changes adopted in this rule will reduce duplicative
administrative decision making and increase the likelihood that
disputes will be resolved more timely.
With respect to the specific changes proposed, some commenters
asserted that, where both a negotiability appeal and unfair labor
practice charge have been filed, the exclusive representative should
retain the right to select the procedure that would go forward. This
suggestion was rejected, on the ground that unfair labor practice
proceedings are, in these situations, better suited to resolving the
entire dispute.
In this regard, with the sole exception of compelling need claims,
which is discussed below, all bargaining obligation and negotiability
claims may be adjudicated in an unfair labor practice proceeding.
Further, unless excluded from the scope of the parties' grievance
procedure by agreement, alleged unfair labor practices may be resolved
under such negotiated procedures. Thus, with one exception, dismissing
petitions for review where unfair labor practice charges have been
filed does not jeopardize a party's ability to obtain adjudication of
all claims. In addition, as clarified in Sec. 2424.40(a), and with the
exception of orders to bargain, remedies available in unfair labor
practice proceedings under 5 U.S.C. 7118(a)(7) are not be available in
Authority decisions and orders issued under this part. Accordingly, in
situations where an exclusive representative has filed an unfair labor
practice charge, requiring adjudication in a negotiability proceeding
would deprive a prevailing exclusive representative of such remedies.
The one exception to the principle that all bargaining obligation
and negotiability claims may be adjudicated in an unfair labor practice
or grievance proceeding concerns petitions for review where the agency
makes a negotiability claim that a proposal or provision conflicts with
an agency regulation for which there is a compelling need under 5
U.S.C. 7117(b). Such compelling need claims must be resolved under the
procedures of part 2424. See Department of the Army, Aberdeen Proving
Ground v. Federal Labor Relations Authority, 485 U.S. 489 (1988)
(compelling need determinations may not be adjudicated in an unfair
labor practice proceeding). Moreover, an agency cannot be found to have
committed an unfair labor practice by refusing to bargain over a
proposal over which it has made a compelling need claim unless the
Authority has made a prior compelling need determination in a
proceeding under part 2424. See Department of the Army, Soldier Support
Center, Fort Benjamin Harrison, Office of the Director of Finance and
Accounting, Indianapolis, Indiana, et al., 41 FLRA 926, 933 n.1 (1991).
Thus, unless an agency's compelling need claim regarding a proposal or
provision has previously been resolved by the Authority, there is no
basis on which to dismiss the petition for review, or the portion of it
relating to such proposal or provision, to permit resolution of all
issues in an unfair labor practice or grievance proceeding.
In view of the foregoing comments and considerations, subsection
(a) of the final rule is modified to clarify that there is an
exception--a proposal or provision over which a compelling need
negotiability claim is raised--to the requirement to dismiss a petition
for review without prejudice in the event an unfair labor practice
charge or grievance has been filed over issues directly related to the
petition for review. Petitions for review, or portions of them,
concerning proposals or provisions subject to compelling need claims
will be processed under part 2424.
In addition, the rule is modified to provide that, within 30 days
following administrative resolution of the unfair labor practice charge
or grievance, an exclusive representative may refile the petition for
review and the Authority will determine whether resolution of the
petition is required. The reference in subsection (a) to administrative
resolution is intended to exclude any time necessary for judicial
review. That is, an exclusive representative may not await the outcome
of judicial review in the unfair labor practice or grievance
arbitration proceeding before refiling the petition for review. With
regard to an arbitration award, for purposes of refiling a petition for
review, the Authority will apply 5 U.S.C. 7122(b) and find an award
final and binding in the event no timely exceptions to the award are
filed with the Authority; if exceptions are timely filed, then the
award is final and binding for purposes of refiling a petition for
review when the Authority resolves the exceptions.
In determining whether resolution of the petition is required, the
Authority will take into consideration such matters as whether,
consistent with the resolution of the unfair labor practice charge or
grievance, an Authority decision and order finding a proposal within
the duty to bargain and directing bargaining could be enforced.
The final rule clarifies in subsection (b) how the Authority will
process a petition for review where the exclusive representative has
not pursued a bargaining obligation dispute in any other proceeding. As
with the proposed rule, subsection (b) distinguishes between two
categories of cases: (1) Cases where no bargaining obligation dispute
exists; and (2) cases where both a negotiability dispute and a
bargaining obligation dispute exist. With respect to the first
category, the final rule remains unchanged from the proposed rule,
providing that where there is no bargaining obligation dispute, the
Authority will resolve the petition under the procedures of this part.
With respect to the second category, subsection (b)(2) of the final
rule provides that, where both a negotiability dispute and a bargaining
obligation dispute exist, the Authority will inform the exclusive
representative of any opportunity to file an unfair labor practice
charge or grievance. If the exclusive representative pursues either
[[Page 66411]]
of these options, then the petition for review will be processed in
accordance with subsection (a). If the exclusive representative does
not pursue either of these options, then subsection (b)(2) of the final
rule provides that the Authority will resolve all aspects necessary for
disposition of the petition unless, in its discretion, the Authority
determines that doing so is not appropriate.
Subsection (b)(2) provides two examples of situations to illustrate
where it is not appropriate to resolve all aspects of the petition for
review under part 2424. The first is where resolution of the bargaining
obligation dispute would unduly delay resolution of the negotiability
dispute. A specific example of this is a petition for review involving
a negotiability dispute that is clearly controlled by existing
precedent such that a decision resolving only the negotiability dispute
could be issued expeditiously, but numerous bargaining obligation
dispute issues also are present. In such a case, the Authority may
conclude that prompt resolution of the negotiability dispute only is
preferable to delaying issuance of a decision and order so as to
resolve bargaining obligation dispute issues at the same time. The
second, related situation set forth in subsection (b) is where the
procedures in another, available forum are better suited to resolving
the bargaining obligation dispute. An example of this is a petition for
review involving a bargaining obligation dispute raising issues of
first impression. In such a case, the Authority may conclude that
unfair labor practice procedures, which permit participation of the
General Counsel and, thereby, facilitate consideration of the General
Counsel's views on the issues of first impression, are better suited to
resolution of the bargaining obligation dispute than are the procedures
in this part.
In circumstances where a proposal is within the duty to bargain,
then any bargaining order under Sec. 2424.40 would be expressly
conditioned on resolution of the unresolved bargaining obligation
dispute in a manner requiring bargaining. On the other hand, if the
proposal is outside the duty to bargain or the provision is contrary to
law, resolution of the bargaining obligation dispute would be
unnecessary.
The Authority emphasizes that resolution of a petition for review
involving bargaining obligation and negotiability disputes will not
result in adjudication of whether an unfair labor practice has
occurred. Such determination may be sought only pursuant to 5 U.S.C.
7116 and 7118. Accordingly, although an Authority decision and order
under part 2424 may include determination of underlying legal issues
that could also be determined in unfair labor practice proceedings--
such as whether a proposed matter is covered by a collective bargaining
agreement or whether the effect of a change in conditions of employment
is de minimis--that determination will not be accompanied by a finding
that an agency acted unlawfully by, for example, implementing a change
in conditions of employment without bargaining. Such a finding can only
be made in an unfair labor practice proceeding, or in a grievance
proceeding determining whether an unfair labor practice occurred. In
addition, as resolution of petitions for review under this part will
not result in unfair labor practice adjudications, decisions and orders
issued under this part will not, with the exception of orders to
bargain, include remedies available under 5 U.S.C. 7118(a)(7) in unfair
labor practice proceedings. Thus, if exclusive representatives desire
such remedies, they should file an unfair labor practice charge or a
grievance.
Section 2424.31
Clarification was sought as to when and how the Authority would
undertake fact finding as set forth in Sec. 2424.34 of the proposed
rules. Comments also recommended that the Authority clarify the
circumstances under which it would hold a hearing pursuant to
Sec. 2424.38 of the proposed rules. Based upon these comments,
Secs. 2424.34 and 2424.38 of the proposed rules have been consolidated
and moved to this section.
Subsection (a) of the final rule clarifies the actions that the
Authority may take when necessary to resolve disputed issues of
material fact or when such actions would otherwise aid in decision
making. These actions include those set forth in the proposed rule,
including a hearing under 5 U.S.C. 7117(b) and (c). The reference in
the proposed rule to ``fact finding'' has been deleted as unnecessary
in view of the inclusion in subsection (d) of ``other appropriate
action.''
One commenter suggested that fact finding be limited to unfair
labor practice proceedings. This suggestion was rejected as
inconsistent with the determination that bargaining obligation disputes
could be resolved in the negotiability process.
Section 2424.32
This section of the final rule combines requirements set forth in
Secs. 2424.35 and 2424.37 of the proposed rule. The requirements have
been combined to reduce repetition and clarify the parties'
obligations.
Subsections (a) and (b) of the final rule retain the requirement in
Sec. 2424.37 (a) and (b) of the proposed rule specifying the parties'
burdens. In particular, subsection (a) provides that the exclusive
representative is responsible for raising and supporting arguments
that, among other things, a proposal or provision is within the duty to
bargain or not contrary to law, and subsection (b) provides that the
agency has the burden of supporting arguments to the contrary.
Subsection (c) retains and modifies requirements set forth in
Secs. 2424.35 and 2424.37 of the proposed rules. In particular,
subsection (c) specifies the consequences of a party's failure to
raise, support, and/or respond to arguments and assertions. With
respect to failure to raise and support arguments, subsection (c)
states that such failure will, where appropriate, be deemed a waiver of
such arguments. It also states that, absent good cause: (1) an agency
may not raise in proceedings under part 2424 or any other proceeding
arguments that could have been but were not raised in its statement of
position or made responsively in its reply to the exclusive
representative's response; and (2) an exclusive representative may not
raise in proceedings under part 2424 or any other proceeding arguments
that could have been but were not raised in the petition for review or
responsively in the response to the agency's statement of position.
With respect to failure to respond to arguments, subsection (c) states
that such failure will, where appropriate, be deemed a concession to
such arguments or assertions.
Numerous comments were received objecting to the proposed
requirement that, in connection with petitions for review concerning
proposals, parties raise all arguments and issues at the prefiling
conference or be precluded from raising such arguments and issues at a
later stage in the negotiability appeal process. As stated previously,
that requirement has been eliminated. However, the final rule precludes
agencies and exclusive representatives from raising new arguments after
the filing of the statement of position and response, respectively.
Several commenters asserted that any regulation that deemed
arguments not raised by an agency to be waived would be inconsistent
with the decision of the United States Court of Appeals for the
District of Columbia Circuit in Department of Transportation v. FLRA,
145 F.3d 1425 (D.C. Cir. 1998) (FAA).
[[Page 66412]]
The Authority has concluded that the final rule is not inconsistent
with the decision in FAA. In this regard, FAA did not address an
agency's failure to raise an argument. In fact, the court concluded
that, in FAA, the agency had ``squarely presented an argument to the
[Authority].'' Id. at 1428. In addition, the court in FAA applied the
Authority's existing negotiability regulations, which do not directly
address filing requirements, burdens, waivers, and concessions.
However, even under the existing regulations, the court in FAA stated
that an agency has a burden to ``direct the Authority's attention, with
as much specificity as possible, to the statutes and regulations
relevant to an agency's duty to bargain * * *' '' Id. at 1428 (quoting
National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d
886, 891 (D.C. Cir. 1982)).
One commenter suggested that a regulation that deems an agency's
failure to raise an objection a ``waiver'' would violate Rule 55(e) of
the Federal Rules of Civil Procedure, which provides that there cannot
be a ``judgment by default entered against the United States * * *
unless the claimant establishes a claim or right to relief by evidence
satisfactory to the court.'' However, the principle underlying this
rule does not apply to the rule at issue, as is explained in the
authority relied on by the commenter. Specifically, in the decision
cited by the commenter, the United States Court of Appeals for the 9th
Circuit stated that ``rule 55(e) was directed at defaults in the narrow
sense of the government's failure to answer or otherwise move against a
complaint, and was not intended to preclude the imposition, at a later
stage in the proceeding, of sanctions or other court action which
prevent the government from presenting further evidence or otherwise
augmenting the record.'' Giampaoli v. Califano, 628 F.2d 1190 (9th Cir.
1980).
One commenter suggested that a failure to rebut an assertion should
result in the finding of an adverse inference rather than a waiver or
concession. An adverse inference is an evidentiary presumption that
takes place when a party fails ``to call a particular witness, or to
take the stand as a witness in a civil case, or voluntarily to produce
documents or other objects in his or her possession as evidence,'' when
it ``would be natural under the circumstances'' for the party to do so.
2 John William Strong et al., McCormick on Evidence Sec. 264, at 184
(4th ed. 1992); see also Internal Revenue Service, Philadelphia Service
Center, 54 FLRA 674, 682 (1998). In negotiability disputes, the more
comparable analogue for failing to rebut an assertion raised in a
pleading is that set forth in Rule 12 of the Federal Rules of Civil
Procedure. See 2 James Wm. Moore, Moore's Federal Practice Sec. 12.20
(3d ed. 1998) (Moore's) (``Rule 12(b) requires a party to assert in the
response to any pleading requiring a response, every legal or factual
defense to the claims made.''). Thus, the final rule uses the more
appropriate term of art for a failure to rebut arguments, which is
``waiver'' or ``concession.'' See Moore's Sec. 12.22 (``Rule 12(h)(1)
waives certain defenses omitted from a motion * * *.'').
The revised negotiability procedures are intended to resolve, in
most cases, all issues with respect to an agency's obligation to
bargain over specific proposals or provisions. Accordingly, the
Authority does not anticipate additional administrative proceedings
before the Authority arising from the circumstances that occasioned the
negotiability appeal. In any subsequent proceedings which might occur,
the parties will not be permitted to relitigate the obligation to
bargain over the proposals or provisions that were the subject of the
negotiability appeal. In this regard, applying the well established
principle of res judicata, a party will be barred from litigating not
only those issues actually addressed by the Authority, but also any
issues that could have been raised by the party in the negotiability
proceeding. See Department of Health and Human Services, Social
Security Administration, 41 FLRA 755, 772 (1991) (discussing the
principles of res judicata). Further, where judicial review or
enforcement of the Authority's order is sought, section 7123(c) of the
Statute bars the parties from raising issues not presented to the
Authority.
Subsection (d) addresses a party's failure to participate in a
post-petition conference under Sec. 2424.23, procedures directed under
Sec. 2424.31, and a failure to respond to Authority orders. The
subsection clarifies that, in addition to actions set forth in
subsection (c), a failure to participate in a conference or to respond
to an Authority order, such as an order directing correction of minor,
technical deficiencies in a filing, may result in dismissal of a
petition for review, with or without prejudice to the exclusive
representative, or granting of the petition for review, with or without
conditions. As noted previously in the commentary to Sec. 2424.22, the
Authority intends to continue its current practice of permitting a
party to correct such minor, technical deficiencies as failing to
provide the correct number of copies or failure to attach a certificate
of service to a filing. However, a party should not rely on this
practice to provide an opportunity for it to correct failures to raise,
support, and respond to arguments. Where appropriate, these latter
failures will be deemed waivers or concessions, and opportunities to
correct the failures will not be provided.
Section 2424.33-2424.39
These sections are reserved.
Subpart E--Decision and Order
Section 2424.40
One commenter objected that the Authority should not issue any
order concerning negotiability where there are unresolved bargaining
obligation disputes. The Authority's current practice is to issue
orders in negotiability cases where there are such unresolved issues,
and the final rule will continue this practice in some cases. However,
as distinct from current practice, if a bargaining order is issued and
there is an unresolved bargaining obligation dispute, then the order
will be conditioned on resolution of the bargaining obligation dispute
in a manner requiring bargaining.
Another commenter requested that the Authority modify the
regulations to require parties to implement portions of agreements that
are not disputed. The Authority declines to do so on the ground that
the partial implementation of contract terms in this situation is
better addressed by the parties in ground rules or during the course of
negotiations.
Consistent with the commentary to Sec. 2424.30, subsection (a) is
modified from the proposed rule to clarify that, with the exception of
an order to bargain, the Authority's decision and order under part 2424
will not include remedies that could be obtained in an unfair labor
practice proceeding under 5 U.S.C. 7118(a)(7). In other respects, the
final rule is the same as the proposed rule.
Section 2424.41
One commenter noted that the use of the phrase ``specified period''
in the proposed rule may mislead parties into believing that the
Authority would seek enforcement of an order before the 60-day period
provided for in 5 U.S.C. 7123(a) had expired. In response to this
concern, the final rule eliminates the phrase. However, the final rule
is modified to make clear that the exclusive representative must bring
to the attention of the appropriate Regional Director a failure to
comply with an Authority order within a ``reasonable time'' following
expiration of the 60-day
[[Page 66413]]
period. Failure to do so within a reasonable time may, if the matter is
referred by the Regional Director to the Authority, result in the
Authority determining not to seek enforcement of the order.
Sections 2424.42-2424.49
These sections are reserved.
Subpart F--Criteria for Determining Compelling Need for Agency Rules
and Regulations
Section 2424.50
With one change to correct grammar, the final rule as promulgated
is the same as the proposed rule.
Sections 2424.51-2424.59
These sections are reserved.
Other Regulatory Requirements
One commenter made several suggestions for modification of general
regulatory requirements that were not responsive to particular sections
in the proposed rules. In particular, the commenter requested that the
Authority: (1) lengthen the time period for requesting reconsideration
of a decision and order under part 2424; (2) modify the ``extraordinary
circumstance'' requirement for obtaining reconsideration and grant
reconsideration when the Authority's decision raises issues that could
not have been anticipated by the parties before the decision, such as
when the Authority decision creates a new legal standard; (3)
promulgate a regulation requiring the Authority to seek the views of
the parties whenever a case is remanded to the Authority on judicial
review; and (4) modify existing regulations to permit the Office of
Personnel Management (OPM) or any other Federal agency that administers
laws having Federal Government-wide implications to intervene, obtain
amicus status, or submit an advisory opinion in any case involving
interpretation of such law.
With regard to the time period for requesting reconsideration, 5
C.F.R. 2429.17 provides that reconsideration of an Authority decision
and order must be sought within 10 days after service of the decision
and order. Although this time period is short, it encourages prompt
consideration of any decision and order and permits, as necessary,
correction of errors in the decision and order as quickly as possible.
In addition, it applies to all Authority decisions and orders, not only
those issued under part 2424. For these reasons, the Authority declines
to extend the time period.
As for the ``extraordinary circumstances'' required for
reconsideration under Sec. 2429.17 of this subchapter, the existing
standard, which requires case-by-case application, does not preclude a
party from arguing that reconsideration should be granted because an
Authority decision raises issues that could not have been anticipated.
Moreover, extraordinary circumstances under Sec. 2429.17 of this
subchapter have been expressly interpreted to include situations where
a change in the law affects dispositive issues. See U.S. Department of
the Air Force, 375th Combat Support Group, Scott Air Force Base,
Illinois, 50 FLRA 84 (1995). Thus, modification of the existing
regulation is not necessary.
The Authority also finds it unnecessary to promulgate a regulation
requiring it to seek the parties' views whenever a case is remanded to
the Authority following judicial review. In some cases, for example,
the remand is solely for the purpose of the Authority taking a
particular action, such as dismissing a petition for review. See
National Treasury Employees Union and Nuclear Regulatory Commission, 39
FLRA 182 (1991) (dismissing petition for review as moot on remand with
instructions from the U.S. Court of Appeals for the Fourth Circuit). In
such cases, requiring the Authority to obtain party views would
unnecessarily lengthen the time necessary to resolve the dispute.
Nevertheless, parties are not precluded from seeking permission from
the Authority in any case to file an additional submission under
Sec. 2424.27.
Similarly, neither OPM nor any other Federal agency is precluded in
any way from seeking to participate in any pending case as amicus
curiae under Sec. 2424.9 of this subchapter. In addition, the Authority
requests advisory opinions as it deems appropriate under Sec. 2429.15
of this subchapter. See, e.g., American Federation of Government
Employees, Local 2986 and U.S. Department of Defense, National Guard
Bureau, The Adjutant General, State of Oregon, 51 FLRA 1549 (1996)
(Authority requested OPM views on interpretation of certain statutory
and regulatory provisions and provided parties opportunity to respond
to OPM's views); National Association of Agriculture Employees and U.S.
Department of Agriculture, Animal and Plant Health Inspection Service,
Plant Protection and Quarantine, 51 FLRA 843 ( 1996) (same). As it is
not apparent that, or how, these existing regulations are not
sufficient to permit OPM and others to participate in Authority
proceedings, the Authority declines to modify them or to create a
separate regulatory requirement for intervention.
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Authority has determined that these regulations, as
amended, will not have a significant impact on a substantial number of
small entities, because this rule applies to federal employees, federal
agencies, and labor organizations representing federal employees.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This action is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Paperwork Reduction Act of 1995
The amended regulations contain no additional information
collection or recordkeeping requirements under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501, et seq.
List of Subjects in 5 CFR Part 2424
Administrative practice and procedure, Government employees, Labor
management relations.
For the reasons set forth in the preamble, the Federal Labor
Relations Authority revises 5 CFR Part 2424 to read as follows:
PART 2424--NEGOTIABILITY PROCEEDINGS
Subpart A--Applicability of This Part and Definitions
Sec.
2424.1 Applicability of this part.
2424.2 Definitions.
2424.3-2424.9 [Reserved]
[[Page 66414]]
Subpart B--Alternative Dispute Resolution; Requesting and Providing
Allegations Concerning the Duty to Bargain
2424.10 Collaboration and Alternative Dispute Resolution Program.
2424.11 Requesting and providing allegations concerning the duty to
bargain.
2424.12-2424.19 [Reserved]
Subpart C--Filing and Responding to a Petition for Review; Conferences
2424.20 Who may file a petition for review.
2424.21 Time limits for filing a petition for review.
2424.22 Exclusive representative's petition for review; purpose;
content; severance; service.
2424.23 Post-petition conferences; conduct and record.
2424.24 Agency's statement of position; purpose; time limits;
content; severance; service.
2424.25 Response of the exclusive representative; purpose; time
limits; content; severance; service.
2424.26 Agency's reply; purpose; time limits; content; service.
2424.27 Additional submissions to the Authority.
2424.28-2424.29 [Reserved]
Subpart D--Processing a Petition for Review
2424.30 Procedure through which the petition for review will be
resolved.
2424.31 Resolution of disputed issues of material fact; hearings.
2424.32 Parties' responsibilities; failure to raise, support, and/
or respond to arguments; failure to participate in conferences and/
or respond to Authority orders.
2424.33-2424.39 [Reserved]
Subpart E--Decision and Order
2424.40 Authority decision and order.
2424.41 Compliance.
2424.42-2424.49 [Reserved]
Subpart F--Criteria for Determining Compelling Need for Agency Rules
and Regulations
2424.50 Illustrative Criteria.
2424.51-2424.59 [Reserved]
Authority: 5 U.S.C. 7134.
Subpart A--Applicability of This Part and Definitions
Sec. 2424.1 Applicability of this part.
This part is applicable to all petitions for review filed after
April 1, 1999.
Sec. 2424.2 Definitions.
In this part, the following definitions apply:
(a) Bargaining obligation dispute means a disagreement between an
exclusive representative and an agency concerning whether, in the
specific circumstances involved in a particular case, the parties are
obligated to bargain over a proposal that otherwise may be negotiable.
Examples of bargaining obligation disputes include disagreements
between an exclusive representative and an agency concerning agency
claims that:
(1) A proposal concerns a matter that is covered by a collective
bargaining agreement; and
(2) Bargaining is not required over a change in bargaining unit
employees' conditions of employment because the effect of the change is
de minimis.
(b) Collaboration and Alternative Dispute Resolution Program refers
to the Federal Labor Relations Authority's program that assists parties
in reaching agreements to resolve disputes.
(c) Negotiability dispute means a disagreement between an exclusive
representative and an agency concerning the legality of a proposal or
provision. A negotiability dispute exists when an exclusive
representative disagrees with an agency contention that (without regard
to any bargaining obligation dispute) a proposal is outside the duty to
bargain, including disagreement with an agency contention that a
proposal is bargainable only at its election. A negotiability dispute
also exists when an exclusive representative disagrees with an agency
head's disapproval of a provision as contrary to law. A negotiability
dispute may exist where there is no bargaining obligation dispute.
Examples of negotiability disputes include disagreements between an
exclusive representative and an agency concerning whether a proposal or
provision:
(1) Affects a management right under 5 U.S.C. 7106(a);
(2) Constitutes a procedure or appropriate arrangement, within the
meaning of 5 U.S.C. 7106(b)(2) and (3), respectively; and
(3) Is consistent with a Government-wide regulation.
(d) Petition for review means an appeal filed with the Authority by
an exclusive representative requesting resolution of a negotiability
dispute. An appeal that concerns only a bargaining obligation dispute
may not be resolved under this part.
(e) Proposal means any matter offered for bargaining that has not
been agreed to by the parties. If a petition for review concerns more
than one proposal, then the term includes each proposal concerned.
(f) Provision means any matter that has been disapproved by the
agency head on review pursuant to 5 U.S.C. 7114(c). If a petition for
review concerns more than one provision, then the term includes each
provision concerned.
(g) Service means the delivery of copies of documents filed with
the Authority to the other party's principal bargaining representative
and, in the case of an exclusive representative, also to the head of
the agency. Compliance with part 2429 of this subchapter is required.
(h) Severance means the division of a proposal or provision into
separate parts having independent meaning, for the purpose of
determining whether any of the separate parts is within the duty to
bargain or is contrary to law. In effect, severance results in the
creation of separate proposals or provisions. Severance applies when
some parts of the proposal or provision are determined to be outside
the duty to bargain or contrary to law.
(i) Written allegation concerning the duty to bargain means an
agency allegation that the duty to bargain in good faith does not
extend to a proposal.
Sec. 2424.3 -2424.9 [Reserved]
Subpart B--Alternative Dispute Resolution; Requesting and Providing
Allegations Concerning the Duty To Bargain
Sec. 2424.10 Collaboration and Alternative Dispute Resolution Program.
Where an exclusive representative and an agency are unable to
resolve disputes that arise under this part, they may request
assistance from the Collaboration and Alternative Dispute Resolution
Program (CADR). Upon request, and as agreed upon by the parties, CADR
representatives will attempt to assist the parties to resolve these
disputes. Parties seeking information or assistance under this part may
call or write the CADR Office at (202) 482-6503, 607 14th Street, NW.,
Washington, D.C. 20424-001. A brief summary of CADR activities is
available on the Internet at www.flra.gov.
Sec. 2424.11 Requesting and providing written allegations concerning
the duty to bargain.
(a) General. An exclusive representative may file a petition for
review after receiving a written allegation concerning the duty to
bargain from the agency. An exclusive representative also may file a
petition for review if it requests that the agency provide it with a
written allegation concerning the duty to bargain and the agency does
not respond to the request within ten (10) days.
(b) Agency allegation in response to request. The agency's
allegation in response to the exclusive representative's request must
be in writing and must be served in accord with Sec. 2424.2(g).
(c) Unrequested agency allegation. If an agency provides an
exclusive
[[Page 66415]]
representative with an unrequested written allegation concerning the
duty to bargain, then the exclusive representative may either file a
petition for review under this part, or continue to bargain and
subsequently request in writing a written allegation concerning the
duty to bargain, if necessary.
Secs. 2424.12-2424.19 [Reserved]
Subpart C--Filing and Responding to a Petition for Review;
Conferences
Sec. 2424.20 Who may file a petition for review.
A petition for review may be filed by an exclusive representative
that is a party to the negotiations.
Sec. 2424.21 Time limits for filing a petition for review.
(a) A petition for review must be filed within fifteen (15) days
after the date of service of either:
(1) An agency's written allegation that the exclusive
representative's proposal is not within the duty to bargain, or
(2) An agency head's disapproval of a provision.
(b) If the agency has not served a written allegation on the
exclusive representative within ten (10) days after the agency's
principal bargaining representative has received a written request for
such allegation, as provided in Sec. 2424.11(a), then the petition may
be filed at any time.
Sec. 2424.22 Exclusive representative's petition for review; purpose;
content; severance; service.
(a) Purpose. The purpose of a petition for review is to initiate a
negotiability proceeding and provide the agency with notice that the
exclusive representative requests a decision from the Authority that a
proposal or provision is within the duty to bargain or not contrary to
law, respectively. As more fully explained in paragraph (b) of this
section, the exclusive representative is required in the petition for
review to, among other things, inform the Authority of the exact
wording and meaning of the proposal or provision as well as how it is
intended to operate, explain technical or unusual terms, and provide
copies of materials that support the exclusive representative's
position.
(b) Content. A petition for review must be filed on a form provided
by the Authority for that purpose, or in a substantially similar
format. It must be dated and include the following:
(1) The exact wording and explanation of the meaning of the
proposal or provision, including an explanation of special terms or
phrases, technical language, or other words that are not in common
usage, as well as how the proposal or provision is intended to work;
(2) Specific citation to any law, rule, regulation, section of a
collective bargaining agreement, or other authority relied on by the
exclusive representative in its argument or referenced in the proposal
or provision, and a copy of any such material that is not easily
available to the Authority;
(3) A statement as to whether the proposal or provision is also
involved in an unfair labor practice charge under part 2423 of this
subchapter, a grievance pursuant to the parties' negotiated grievance
procedure, or an impasse procedure under part 2470 of this subchapter,
and whether any other petition for review has been filed concerning a
proposal or provision arising from the same bargaining or the same
agency head review;
(4) Any request for a hearing before the Authority and the reasons
supporting such request; and
(5) A table of contents and a table of legal authorities cited, if
the petition exceeds 25 double-spaced pages in length.
(c) Severance. The exclusive representative may, but is not
required to, include in the petition for review a statement as to
whether it requests severance of a proposal or provision. If severance
is requested in the petition for review, then the exclusive
representative must support its request with an explanation of how each
severed portion of the proposal or provision may stand alone, and how
such severed portion would operate. The explanation and argument in
support of the severed portion(s) must meet the same requirements for
information set forth in paragraph (b) of this section.
(d) Service. The petition for review, including all attachments,
must be served in accord with Sec. 2424.2(g).
Sec. 2424.23 Post-petition conferences; conduct and record.
(a) Timing of post-petition conference. On receipt of a petition
for review involving a proposal or a provision, a representative of the
FLRA will, where appropriate, schedule a post-petition conference to be
conducted by telephone or in person. All reasonable efforts will be
made to schedule and conduct the conference within ten (10) days after
receipt of the petition for review.
(b) Conduct of conference. The post-petition conference will be
conducted with representatives of the exclusive representative and the
agency, who must be prepared and authorized to discuss, clarify and
resolve matters including the following:
(1) The meaning of the proposal or provision in dispute;
(2) Any disputed factual issue(s);
(3) Negotiability dispute objections and bargaining obligation
claims regarding the proposal or provision;
(4) Whether the proposal or provision is also involved in an unfair
labor practice charge under part 2423 of this subchapter, in a
grievance under the parties' negotiated grievance procedure, or an
impasse procedure under part 2470 of this subchapter; and
(5) Whether an extension of the time limits for filing the agency's
statement of position and any subsequent filings is requested. The FLRA
representative may, on determining that it will effectuate the purposes
of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
7101 et seq., and this part, extend such time limits.
(c) Record of the conference. At the post-petition conference, or
after it has been completed, the representative of the FLRA will
prepare and serve on the parties a written statement that includes
whether the parties agree on the meaning of the disputed proposal or
provision, the resolution of any disputed factual issues, and any other
appropriate matters.
Sec. 2424.24 Agency's statement of position; purpose; time limits;
content; severance; service.
(a) Purpose. The purpose of an agency statement of position is to
inform the Authority and the exclusive representative why a proposal or
provision is not within the duty to bargain or contrary to law,
respectively. As more fully explained in paragraph (c) of this section,
the agency is required in the statement of position to, among other
things, set forth its understanding of the proposal or provision, state
any disagreement with the facts, arguments, or meaning of the proposal
or provision set forth in the exclusive representative's petition for
review, and supply all arguments and authorities in support of its
position.
(b) Time limit for filing. Unless the time limit for filing has
been extended pursuant to Sec. 2424.23 or part 2429 of this subchapter,
the agency must file its statement of position within thirty (30) days
after the date the head of the agency receives a copy of the petition
for review.
(c) Content. The agency's statement of position must be on a form
provided by the Authority for that purpose, or in a substantially
similar format. It must be dated and must:
(1) Withdraw either:
[[Page 66416]]
(i) The allegation that the duty to bargain in good faith does not
extend to the exclusive representative's proposal, or
(ii) The disapproval of the provision under 5 U.S.C. 7114(c); or
(2) Set forth in full the agency's position on any matters relevant
to the petition that it wishes the Authority to consider in reaching
its decision, including a statement of the arguments and authorities
supporting any bargaining obligation or negotiability claims, any
disagreement with claims made by the exclusive representative in the
petition for review, specific citation to any law, rule, regulation,
section of a collective bargaining agreement, or other authority relied
on by the agency, and a copy of any such material that is not easily
available to the Authority. The statement of position must also include
the following:
(i) If different from the exclusive representative's position, an
explanation of the meaning the agency attributes to the proposal or
provision and the reasons for disagreeing with the exclusive
representative's explanation of meaning;
(ii) If different from the exclusive representative's position, an
explanation of how the proposal or provision would work, and the
reasons for disagreeing with the exclusive representative's
explanation;
(3) A statement as to whether the proposal or provision is also
involved in an unfair labor practice charge under part 2423 of this
subchapter, a grievance pursuant to the parties' negotiated grievance
procedure, or an impasse procedure under part 2470 of this subchapter,
and whether any other petition for review has been filed concerning a
proposal or provision arising from the same bargaining or the same
agency head review;
(4) Any request for a hearing before the Authority and the reasons
supporting such request; and
(5) A table of contents and a table of legal authorities cited, if
the statement of position exceeds 25 double-spaced pages in length.
(d) Severance. If the exclusive representative has requested
severance in the petition for review, and if the agency opposes the
exclusive representative's request for severance, then the agency must
explain with specificity why severance is not appropriate.
(e) Service. A copy of the agency's statement of position,
including all attachments, must be served in accord with
Sec. 2424.2(g).
Sec. 2424.25 Response of the exclusive representative; purpose; time
limits; content; severance; service.
(a) Purpose. The purpose of the exclusive representative's response
is to inform the Authority and the agency why, despite the agency's
arguments in its statement of position, the proposal or provision is
within the duty to bargain or not contrary to law, respectively, and
whether the union disagrees with any facts or arguments in the agency's
statement of position. As more fully explained in paragraph (c) of this
section, the exclusive representative is required in its response to,
among other things, state why the proposal or provision does not
conflict with any law, or why it falls within an exception to
management rights, including permissive subjects under 5 U.S.C.
7106(b)(1), and procedures and appropriate arrangements under section
7106(b) (2) and (3). Another purpose of the response is to permit the
exclusive representative to request the Authority to sever portions of
the proposal or provision and to explain why and how it can be done.
(b) Time limit for filing. Unless the time limit for filing has
been extended pursuant to Sec. 2424.23 or part 2429 of this subchapter,
within fifteen (15) days after the date the exclusive representative
receives a copy of an agency's statement of position, the exclusive
representative must file a response.
(c) Content. The response must be on a form provided by the
Authority for that purpose, or in a substantially similar format. With
the exception of a request for severance pursuant to paragraph (d) of
this section, the exclusive representative's response is specifically
limited to the matters raised in the agency's statement of position.
The response must be dated and must include the following:
(1) Any disagreement with the agency's bargaining obligation or
negotiability claims. The exclusive representative must state the
arguments and authorities supporting its opposition to any agency
argument, and must include specific citation to any law, rule,
regulation, section of a collective bargaining agreement, or other
authority relied on by the exclusive representative, and provide a copy
of any such material that is not easily available to the Authority. The
exclusive representative is not required to repeat arguments made in
the petition for review. If not included in the petition for review,
the exclusive representative must state the arguments and authorities
supporting any assertion that the proposal or provision does not affect
a management right under 5 U.S.C. 7106(a), and any assertion that an
exception to management rights applies, including:
(i) Whether and why the proposal or provision concerns a matter
negotiable at the election of the agency under 5 U.S.C. 7106(b)(1);
(ii) Whether and why the proposal or provision constitutes a
negotiable procedure as set forth in 5 U.S.C. 7106(b)(2);
(iii) Whether and why the proposal or provision constitutes an
appropriate arrangement as set forth in 5 U.S.C. 7106(b)(3); and
(iv) Whether and why the proposal or provision enforces an
``applicable law,'' within the meaning of 5 U.S.C. 7106(a)(2).
(2) Any allegation that agency rules or regulations relied on in
the agency's statement of position violate applicable law, rule,
regulation or appropriate authority outside the agency; that the rules
or regulations were not issued by the agency or by any primary national
subdivision of the agency, or otherwise are not applicable to bar
negotiations under 5 U.S.C. 7117(a)(3); or that no compelling need
exists for the rules or regulations to bar negotiations.
(3) A table of contents and a table of legal authorities cited if
the response to an agency statement of position exceeds 25 double-
spaced pages in length.
(d) Severance. If not requested in the petition for review, or if
the exclusive representative wishes to modify the request in the
petition for review, the exclusive representative may request severance
in its response. The exclusive representative must support its request
with an explanation of how the severed portion(s) of the proposal or
provision may stand alone, and how such severed portion(s) would
operate. The exclusive representative also must respond to any agency
arguments regarding severance made in the agency's statement of
position. The explanation and argument in support of the severed
portion(s) must meet the same requirements for specific information set
forth in paragraph (c) of this section.
(e) Service. A copy of the response of the exclusive
representative, including all attachments, must be served in accord
with Sec. 2424.2(g).
Sec. 2424.26 Agency's reply; purpose; time limits; content; service.
(a) Purpose. The purpose of the agency's reply is to inform the
Authority and the exclusive representative whether and why it disagrees
with any facts or arguments made for the first time in the exclusive
representative's response. As more fully explained in
[[Page 66417]]
paragraph (c) of this section, the Agency is required in the reply to,
among other things, provide the reasons why the proposal or provision
does not fit within any exceptions to management rights that were
asserted by the exclusive representative in its response, and to
explain why severance of the proposal or provision is not appropriate.
(b) Time limit for filing. Unless the time limit for filing has
been extended pursuant to Sec. 2424.23 or part 2429 of this subchapter,
within fifteen (15) days after the date the agency receives a copy of
the exclusive representative's response to the agency's statement of
position, the agency may file a reply.
(c) Content. The reply must be on a form provided by the Authority
for that purpose, or in a substantially similar format. The agency's
reply is specifically limited to the matters raised for the first time
in the exclusive representative's response. The agency's reply must
state the arguments and authorities supporting its reply, cite with
specificity any law, rule, regulation, section of a collective
bargaining agreement, or other authority relied on, and provide a copy
of any material that is not easily available to the Authority. The
agency is not required to repeat arguments made in its statement of
position. The agency's reply must be dated and must include the
following:
(1) Any disagreement with the exclusive representative's assertion
that an exception to management rights applies, including:
(i) Whether and why the proposal or provision concerns a matter
included in section 7106(b)(1) of the Federal Service Labor-Management
Relations Statute;
(ii) Whether and why the proposal or provision does not constitute
a negotiable procedure as set forth in section 7106(b)(2) of the
Federal Service Labor-Management Relations Statute;
(iii) Whether and why the proposal or provision does not constitute
an appropriate arrangement as set forth in section 7106(b)(3) of the
Federal Service Labor-Management Relations Statute;
(iv) Whether and why the proposal or provision does not enforce an
``applicable law,'' within the meaning of section 7106(a)(2) of the
Federal Service Labor-Management Relations Statute;
(2) Any arguments in reply to an exclusive representative's
allegation in its response that agency rules or regulations relied on
in the agency's statement of position violate applicable law, rule,
regulation or appropriate authority outside the agency; that the rules
or regulations were not issued by the agency or by any primary national
subdivision of the agency, or otherwise are not applicable to bar
negotiations under 5 U.S.C. 7117(a)(3); or that no compelling need
exists for the rules or regulations to bar negotiations; and
(3) A table of contents and a table of legal authorities cited, if
the agency's reply to an exclusive representative's response exceeds 25
double-spaced pages in length.
(d) Severance. If the exclusive representative requests severance
for the first time in its response, or if the request for severance in
an exclusive representative's response differs from the request in its
petition for review, and if the agency opposes the exclusive
representative's request for severance, then the agency must explain
with specificity why severance is not appropriate.
(e) Service. A copy of the agency's reply, including all
attachments, must be served in accord with Sec. 2424.2(g).
Sec. 2424.27 Additional submissions to the Authority.
The Authority will not consider any submission filed by any party
other than those authorized under this part, provided however that the
Authority may, in its discretion, grant permission to file an
additional submission based on a written request showing extraordinary
circumstances by any party. The additional submission must be filed
either with the written request or no later than five (5) days after
receipt of the Authority's order granting the request. Any opposition
to the additional submission must be filed within fifteen (15) days
after the date of the receipt of the additional submission. All
documents filed under this section must be served in accord with
Sec. 2424.2(g).
Sec. 2424.28-2424.29 [Reserved]
Subpart D--Processing a Petition for Review
Sec. 2424.30 Procedure through which the petition for review will be
resolved.
(a) Exclusive representative has filed related unfair labor
practice charge or grievance alleging an unfair labor practice. Except
for proposals or provisions that are the subject of an agency's
compelling need claim under 5 U.S.C. 7117(a)(2), where an exclusive
representative files an unfair labor practice charge pursuant to part
2423 of this subchapter or a grievance alleging an unfair labor
practice under the parties' negotiated grievance procedure, and the
charge or grievance concerns issues directly related to the petition
for review filed pursuant to this part, the Authority will dismiss the
petition for review. The dismissal will be without prejudice to the
right of the exclusive representative to refile the petition for review
after the unfair labor practice charge or grievance has been resolved
administratively, including resolution pursuant to an arbitration award
that has become final and binding. No later than thirty (30) days after
the date on which the unfair labor practice charge or grievance is
resolved administratively, the exclusive representative may refile the
petition for review, and the Authority will determine whether
resolution of the petition is still required.
(b) Exclusive representative has not filed related unfair labor
practice charge or grievance alleging an unfair labor practice. Where
an exclusive representative files only a petition for review under this
part, the petition will be processed as follows:
(1) No bargaining obligation dispute exists. Where there is no
bargaining obligation dispute, the Authority will resolve the petition
for review under the procedures of this part.
(2) A bargaining obligation dispute exists. Where a bargaining
obligation dispute exists in addition to the negotiability dispute, the
Authority will inform the exclusive representative of any opportunity
to file an unfair labor practice charge pursuant to part 2423 of this
subchapter or a grievance under the parties' negotiated grievance
procedure and, where the exclusive representative pursues either of
these courses, proceed in accord with paragraph (a) of this section. If
the exclusive representative does not file an unfair labor practice
charge or grievance, the Authority will proceed to resolve all disputes
necessary for disposition of the petition unless, in its discretion,
the Authority determines that resolving all disputes is not appropriate
because, for example, resolution of the bargaining obligation dispute
under this part would unduly delay resolution of the negotiability
dispute, or the procedures in another, available administrative forum
are better suited to resolve the bargaining obligation dispute.
Sec. 2424.31 Resolution of disputed issues of material fact; hearings.
When necessary to resolve disputed issues of material fact in a
negotiability or bargaining obligation dispute, or when it would
otherwise aid in decision making, the Authority, or its designated
representative, may, as appropriate:
(a) Direct the parties to provide specific documentary evidence;
(b) Direct the parties to provide answers to specific factual
questions;
[[Page 66418]]
(c) Refer the matter to a hearing pursuant to 5 U.S.C. 7117(b)(3)
and/or (c)(5); or
(d) Take any other appropriate action.
Sec. 2424.32 Parties' responsibilities; failure to raise, support,
and/or respond to arguments; failure to participate in conferences and/
or respond to Authority orders.
(a) Responsibilities of the exclusive representative. The exclusive
representative has the burden of raising and supporting arguments that
the proposal or provision is within the duty to bargain, within the
duty to bargain at the agency's election, or not contrary to law,
respectively, and, where applicable, why severance is appropriate.
(b) Responsibilities of the agency. The agency has the burden of
raising and supporting arguments that the proposal or provision is
outside the duty to bargain or contrary to law, respectively, and,
where applicable, why severance is not appropriate.
(c) Failure to raise, support, and respond to arguments. (1)
Failure to raise and support an argument will, where appropriate, be
deemed a waiver of such argument. Absent good cause:
(i) Arguments that could have been but were not raised by an
exclusive representative in the petition for review, or made in its
response to the agency's statement of position, may not be made in this
or any other proceeding; and
(ii) Arguments that could have been but were not raised by an
agency in the statement of position, or made in its reply to the
exclusive representative's response, may not be raised in this or any
other proceeding.
(2) Failure to respond to an argument or assertion raised by the
other party will, where appropriate, be deemed a concession to such
argument or assertion.
(d) Failure to participate in conferences; failure to respond to
Authority orders. Where a party fails to participate in a post-petition
conference pursuant to Sec. 2424.23, a direction or proceeding under
Sec. 2424.31, or otherwise fails to provide timely or responsive
information pursuant to an Authority order, including an Authority
procedural order directing the correction of technical deficiencies in
filing, the Authority may, in addition to those actions set forth in
paragraph (c) of this section, take any other action that, in the
Authority's discretion, is deemed appropriate, including dismissal of
the petition for review, with or without prejudice to the exclusive
representative's refiling of the petition for review, and granting the
petition for review and directing bargaining and/or rescission of an
agency head disapproval under 5 U.S.C. 7114(c), with or without
conditions.
Sec. 2424.33--2424.39 [Reserved]
Subpart E--Decision and Order
Sec. 2424.40 Authority decision and order.
(a) Issuance. Subject to the requirements of this part, the
Authority will expedite proceedings under this part to the extent
practicable and will issue to the exclusive representative and to the
agency a written decision, explaining the specific reasons for the
decision, at the earliest practicable date. The decision will include
an order, as provided in paragraphs (b) and (c) of this section, but,
with the exception of an order to bargain, such order will not include
remedies that could be obtained in an unfair labor practice proceeding
under 5 U.S.C. 7118(a)(7).
(b) Cases involving proposals. If the Authority finds that the duty
to bargain extends to the proposal, or any severable part of the
proposal, then the Authority will order the agency to bargain on
request concerning the proposal. If the Authority finds that the duty
to bargain does not extend to the proposal, then the Authority will
dismiss the petition for review. If the Authority finds that the
proposal is bargainable only at the election of the agency, then the
Authority will so state. If the Authority resolves a negotiability
dispute by finding that a proposal is within the duty to bargain, but
there are unresolved bargaining obligation dispute claims, then the
Authority will order the agency to bargain on request in the event its
bargaining obligation claims are resolved in a manner that requires
bargaining.
(c) Cases involving provisions. If the Authority finds that a
provision, or any severable part thereof, is not contrary to law, rule
or regulation, or is bargainable at the election of the agency, the
Authority will direct the agency to rescind its disapproval of such
provision in whole or in part as appropriate. If the Authority finds
that a provision is contrary to law, rule, or regulation, the Authority
will dismiss the petition for review as to that provision.
Sec. 2424.41 Compliance.
The exclusive representative may report to the appropriate Regional
Director an agency's failure to comply with an order, issued in
accordance with Sec. 2424.40, that the agency must upon request (or as
otherwise agreed to by the parties) bargain concerning the proposal or
that the agency must rescind its disapproval of a provision. The
exclusive representative must report such failure within a reasonable
period of time following expiration of the 60-day period under 5 U.S.C.
7123(a), which begins on the date of issuance of the Authority order.
If, on referral from the Regional Director, the Authority finds such a
failure to comply with its order, the Authority will take whatever
action it deems necessary to secure compliance with its order,
including enforcement under 5 U.S.C. 7123(b).
Secs. 2424.42--2424.49 [Reserved]
Subpart F--Criteria for Determining Compelling Need for Agency
Rules and Regulations
Sec. 2424.50 Illustrative criteria.
A compelling need exists for an agency rule or regulation
concerning any condition of employment when the agency demonstrates
that the rule or regulation meets one or more of the following
illustrative criteria:
(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national subdivision in
a manner that is consistent with the requirements of an effective and
efficient government.
(b) The rule or regulation is necessary to ensure the maintenance
of basic merit principles.
(c) The rule or regulation implements a mandate to the agency or
primary national subdivision under law or other outside authority,
which implementation is essentially nondiscretionary in nature.
Secs. 2424.51--2424.59 [Reserved]
Dated: November 25, 1998.
Solly Thomas,
Executive Director, Federal Labor Relations Authority.
[FR Doc. 98-31970 Filed 12-1-98; 8:45 am]
BILLING CODE 6727-01-P