Negotiability Proceedings

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2424

Negotiability Proceedings

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of proposed rulemaking; notice of meetings.

-----------------------------------------------------------------------

SUMMARY: The Chair and Members of the Authority component (the

Authority) of the Federal Labor Relations Authority (the FLRA) propose

to revise the regulations concerning negotiability proceedings. The

purpose of the proposed revisions is to expedite these proceedings and

facilitate dispute resolution.

DATES: Comments must be received on or before October 23, 1998.

Meetings will be held on October 6, 1998, in Chicago, Illinois; October

8, 1998, in Oakland, California; and October 14, 1998, in Washington,

D.C.

ADDRESSES: Mail or deliver written comments to the Office of Case

Control, Federal Labor Relations Authority, 607 14th Street, NW.,

Washington, D.C. 20424-0001. The October 6, 1998 meeting will be held

at the Ralph H. Metcalfe Federal Building, 77 West Jackson Boulevard,

Room 328, Chicago, Illinois. The October 8, 1998 meeting will be held

at the Oakland Federal Building, 1301 Clay Street, North Tower, Second

Floor, Conference Rooms A and B, Oakland, California. The October 14,

1998 meeting will be held at the Federal Labor Relations Authority's

Headquarters, 607 14th St. NW., Washington, D.C. 20424, 2nd Floor

Agenda Room.

FOR FURTHER INFORMATION CONTACT: Regulatory information or registration

for the Washington meeting: Peter Constantine, Office of Case Control,

at the address listed above or by telephone # (202) 482-6540.

Registration for the Chicago meeting: Philip T. Roberts, Chicago

Regional Office, Federal Labor Relations Authority, 55 West Monroe

Street, Suite 1150, Chicago, Illinois 60603-9727, telephone # (312)

886-3465 ext. 20. Registration for the Oakland meeting: Lisa C.

Vandenberg, San Francisco Regional Office, Federal Labor Relations

Authority, 901 Market Street, Suite 220, San Francisco, CA 94103-1791,

telephone # (415) 356-5002 ext. 18.

SUPPLEMENTARY INFORMATION: 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. To this

end, the Task Force published a Federal Register notice (63 FR 19413)

(April 20, 1998) inviting parties to submit written comments on several

subjects relevant to negotiability proceedings. In addition, the Task

Force convened focus groups in order to solicit and consider customers'

views prior to proposing these revisions.

The proposed revisions represent the Authority's intent to improve

and expedite negotiability proceedings. Major aspects of the proposed

regulations include pre- and postfiling procedures and conferences

designed to narrow and clarify issues to be resolved; revised

processing procedures that will enable the Authority, where

appropriate, to resolve all aspects of a dispute; and clarification of

the responsibilities of each party. The proposed revisions also divide

Part 2424 into six subparts: Subpart A--Applicability and definitions;

Subpart B--Prefiling procedures; Subpart C--Filing a petition; Subpart

D--Processing a petition; Subpart E--Decisions and orders; and Subpart

F--Compelling need determinations.

In connection with the proposed revisions to Part 2424, three

meetings will be conducted. The first meeting will be held on October

6, 1998, at the Ralph H. Metcalfe Federal Building, 77 West Jackson

Boulevard, Chicago, Illinois, at 1:00 p.m. Persons interested in

attending this first meeting should write or call Philip T. Roberts, at

the address and phone number listed in the preceding section, to

confirm attendance. The second meeting will be held on October 8, 1998,

at the Oakland Federal Building, 1301 Clay Street, North Tower, Second

Floor, Conference Rooms A and B, Oakland, CA, at 1:00 p.m. Persons

interested in attending this second meeting should call Lisa C.

Vandenberg, at the address and phone number listed in the preceding

section, to confirm attendance. The third meeting will be held on

October 14, 1998, at the Federal Labor Relations Authority's

Headquarters, 607 14th St. NW, Washington, D.C. 20424, 2nd Floor Agenda

Room, at 10:00 a.m. Persons interested in attending this third meeting

should write or call Peter Constantine, Office of Case Control, at the

address and phone number listed in the preceding section, to confirm

attendance.

Copies of all written comments will be available for inspection and

photocopying between 8 a.m. and 5 p.m., Monday through Friday, in Suite

415 at the Office of Case Control.

Sectional analyses of the proposed amendments and revisions to Part

2424, Negotiability Proceedings, are as follows.

Part 2424--Negotiability Proceedings

Subpart A--Applicability of This Part

Section 2424.1. This section establishes the January 1, 1999

effective date of the regulations. The section clarifies that the

revised regulations will be applied to all written allegations of

nonnegotiability that are requested by exclusive representatives after

January 1, 1999; all petitions for review filed after January 1, 1999

by exclusive representatives in response to agency head disapprovals of

contract provisions; and all petitions for review filed after January

1, 1999 in response to written allegations of nonnegotiability that

were requested prior to that date (whether or not the written

allegation is actually provided to the exclusive representative prior

to that date).

Section 2424.2. The listed terms are used throughout the part and

are defined to both explain their meaning and to avoid repetition in

individual sections in the part. Two new terms--``negotiability

dispute'' and ``bargaining dispute''--distinguish different types of

disagreements over the duty to bargain. Two other new terms--

``prefiling conference'' and ``postfiling conference''--encompass

requirements applicable to requests for allegations of nonnegotiability

regarding proposals for bargaining and petitions for review of agency-

head disapprovals of provisions.

The term ``negotiability dispute'' refers to a disagreement

concerning the legality of a proposal or provision.

[[Page 48131]]

Specifically, a negotiability dispute is raised by an agency contention

that: (1) A proposal is outside the agency's duty to bargain under

section 7117 of the Federal Service Labor-Management Relations Statute,

5 U.S.C. 7117; or (2) a provision was properly disapproved by the

agency head under section 7114(c) of the Statute, 5 U.S.C. 7114(c). A

``negotiability dispute'' exists when an agency contends that a

proposal or provision is not a proper subject of bargaining under any

circumstances, or when an agency contends that a proposal is

bargainable only at its election. As an example, a dispute over whether

a proposal constitutes an appropriate arrangement for employees

adversely affected by the exercise of a management right under section

7106 of the Statute raises a ``negotiability dispute.''

The term ``bargaining dispute'' refers to disagreements over

whether, in the specific circumstances involved in a particular case,

an agency is obligated to bargain over a proposal without regard to

whether the proposal is otherwise consistent with law and regulation.

As an example, an agency contention that it is not required to bargain

mid-term over a proposal because it concerns a matter that is ``covered

by'' an existing collective bargaining agreement raises a ``bargaining

dispute.'' As another example, an agency contention that it need not

bargain over a proposal offered in response to a management-initiated

change in conditions of employment because the effect of the change on

unit employees' conditions of employment is de minimis raises a

``bargaining dispute.''

It is the Authority's experience that a single petition for review

filed under this part sometimes raises both a ``negotiability dispute''

and a ``bargaining dispute.'' That is, an agency might assert both that

a particular proposal is outside the duty to bargain under any

circumstance because it is inconsistent with law and that it is not

required to bargain over the proposal in the specific circumstances of

the case because it concerns a matter that is covered by the parties'

agreement.

The terms ``prefiling conference'' and ``postfiling conference''

refer to discussions among representatives of the parties and a

representative of the FLRA. A ``prefiling conference'' occurs before an

exclusive representative requests a written allegation of

nonnegotiability concerning a proposal for bargaining and encompasses

discussion regarding, among other things, the meaning of a proposal and

the ground(s) on which the agency claims that the proposal is outside

the duty to bargain. A ``postfiling conference'' encompasses the same

discussion but involves a provision and occurs after the filing of a

petition for review by an exclusive representative but before the

filing of the agency's statement of position.

Sections 2424.3-2424.9. These sections are reserved.

Subpart B--Prefiling Procedures in Cases Involving Proposals

Subpart B proposes significant changes to the current procedures

for processing a negotiability appeal involving a proposal. As prompted

by suggestions from the Task Force and numerous commenters, the

proposed procedures facilitate early involvement by the Authority with

the intention to assist resolution of disputes without the necessity

for filing a petition for review. In cases where petitions for review

are subsequently filed, these procedures facilitate clarification and

narrowing of the issues in dispute with the intention to expedite the

Authority's decision-making process.

The procedures in this subpart would establish one of several

options considered by the Authority for implementing these goals. This

option requires a prefiling conference among the parties and a

representative of the FLRA before an exclusive representative would be

permitted to request a written allegation of nonnegotiability from an

agency. The prefiling conference would only be conducted if the

exclusive representative had attempted to bargain on a specific

proposal and the agency had declined to do so on the basis that the

proposal was not a proper subject of bargaining under any circumstances

or was bargainable only at its election. This requirement offers the

potential for substantial benefits to exclusive representatives,

agencies, and the Authority by resolving disputes without commencing a

formal adjudicatory proceeding. However, the Authority also recognizes

that such requirement could generate unnecessary, or premature,

requests for Authority assistance. Such requirement also could be

viewed as creating an additional, unnecessary forum for resolution of

disputes.

Comments are also requested on two alternatives to requiring a

prefiling conference. First, the prefiling conference could be made

optional, to be conducted only with the agreement of both parties.

Second, a postfiling conference could be required (after the filing of

a petition for review but before the filing of an agency statement of

position); this procedure would be the same one now proposed in

Sec. 2424.30 for petitions involving provisions that have been

disapproved by an agency head.

There may be other alternatives as well. Accordingly, the Authority

seeks comment on whether an optional or required conference among the

parties and a representative designated by the Authority should take

place: (1) Prior to a request for a written allegation of

nonnegotiability, as proposed in this subpart; (2) immediately after

the filing of a petition for review, as proposed in subpart D in

connection with provisions that have been disapproved by an agency

head; or (3) at another point in the negotiability process. Following

receipt of comments, the Authority will determine and promulgate a

final regulation setting out the most appropriate conference procedure.

Section 2424.10. This section advises the parties of the

availability of the Federal Labor Relations Authority's Collaboration

and Alternative Dispute Resolution Program to assist them in resolving

disputes that arise under this part.

Section 2424.11. This section and section 2424.12 introduce a new

dispute resolution process that is designed to address negotiability

and bargaining disputes between the parties prior to an exclusive

representative requesting, and the agency providing, a written

allegation that the duty to bargain in good faith does not extend to a

particular proposal. The first step, set forth in subsection (a),

requires the filing of a notice of intent to appeal before invoking the

statutory process set out in 5 U.S.C. 7117(c). Subsection (b) outlines

the requirements, and subsection (c) sets forth the service

requirements, of such notice.

Section 2424.12. As noted above, this new section provides for

discussions between the parties and a designated representative of the

FLRA prior to a request for a written allegation of nonnegotiability.

Subsection (a) explains that the representative of the FLRA will

conduct a prefiling conference with the parties where such a conference

is appropriate. A prefiling conference is appropriate and will be

conducted unless, for example, the dispute in not ripe for intervention

(for example when the bargaining proposal has not been discussed by the

parties). At the prefiling conference, which may occur by telephone or

in person, the parties must be prepared to discuss and clarify the

issues involved the dispute. The matters to be discussed at the

prefiling conference are specifically set forth in the regulation. A

record of the prefiling conference, to which the parties may timely

object, will be prepared in accordance with subsection

[[Page 48132]]

(b). It is the Authority's intent that, whenever possible, the record

of the prefiling conference will be developed and agreed upon prior to

concluding the conference.

Section 2424.13. This section incorporates and amends the current

procedure for requesting and giving allegations of nonnegotiability set

out in Sec. 2424.3 of the current regulations. As amended, the

regulation provides that an exclusive representative may not seek a

written allegation concerning the duty to bargain over a particular

proposal until the Authority has completed the prefiling conference,

declined to hold a prefiling conference, or 30 days have elapsed since

the filing of the notice of intent to appeal--whichever occurs first.

The latter alternative permits, but does not require, the exclusive

representative to request a written allegation concerning the duty to

bargain after the passage of 30 days.

Sections 2424.14-2424.19. These sections are reserved.

Subpart C--Filing a Petition

Section 2424.20. This is a new section that supersedes Sec. 2424.2

of the current regulations. The revised regulation provides that an

exclusive representative must comply with the prefiling requirements

set forth in Subpart B prior to filing a petition for review. The

revised regulation explains that Subpart B does not apply in cases

involving an agency head's disapproval of a provision pursuant to 5

U.S.C. 7114.

Section 2424.21. This section, which addresses the time limits for

filing a petition for review, incorporates the time limits set out in

the current Sec. 2424.3. A new provision specifies that an allegation

of nonnegotiability provided in a response to a request that does not

comply with Subpart B will not prompt the running of the 15-day period

in which to file a petition for review.

Section 2424.22. This section incorporates and expands the content

requirements for a petition for review contained in current

Sec. 2424.4. A form will be developed for use in filing a petition for

review, but its use will not be required provided that the petition for

review includes all of the information set forth in the regulation. In

addition to the requirements in the current regulation, this section

requires the exclusive representative to provide additional information

in the petition, including any modifications to the proposal or

provision resulting from the prefiling conference, a statement as to

whether severance is requested and support for such a request,

notification of whether the negotiability dispute is involved in an

impasse procedure under part 2470 of this subchapter or a grievance

pursuant to 5 U.S.C. 7121, any request for a hearing before the

Authority, and, where available, a copy of the record of the prefiling

conference. The section also requires that any petition for review

exceeding 25 double-spaced pages in length include a table of contents

and a table of legal authorities cited. This requirement, which also

applies to agency statements of position under section 2424.32 and

responses of exclusive representatives under section 2424.33, mirrors

the requirement established in section 2423.40(a)(3), which applies to

exceptions to administrative law judge decisions in unfair labor

practice cases.

Comment is specifically requested on whether the proposed

requirements are burdensome. If the requirements are viewed as

burdensome, then commenters are requested to suggest alternatives to

create a record sufficient for an agency to file a complete statement

of position and for the Authority to resolve the negotiability and/or

bargaining dispute.

Section 2424.23. This section parallels the current Sec. 2424.4(b)

concerning service of the petition for review.

Sections 2424.24-2424.29. These sections are reserved.

Subpart D--Processing a Petition for Review

Subpart D establishes procedures for processing petitions for

review involving proposals and provisions. Section 2424.30, discussed

below, requires a postfiling conference in cases involving provisions,

i.e. matters that have been agreed to by the parties and disapproved on

agency head review pursuant to 5 U.S.C. 7114(c).

Section 2424.30. This section addresses the processing of petitions

for review involving provisions in a collective bargaining agreement.

Subsection (a) sets out the purposes of the conference, which would

take place after a petition for review has been filed. The purposes of

the conference would be the same as those established in section

2424.12(a) for prefiling conferences.

Subsection (b) specifies that the representative of the FLRA may,

on finding good cause (such cause to include, but not be limited to,

cases where the parties agree), extend the time limits for filing the

agency's statement of position and the exclusive representative's

response thereto. Subsection (c) provides for the preparation of,

service of, and objection to, the record of the postfiling conference.

Subsection (c) is comparable to section 2424.12(b), which sets out

identical procedures for the records of prefiling conferences.

Section 2424.31. This section replaces and significantly changes

the current Sec. 2424.5. Subsection (a) specifies how the Authority

will act on petitions raising negotiability disputes where the

exclusive representative has pursued a related bargaining dispute in

unfair labor practice or grievance proceedings. In particular, if an

exclusive representative has pursued a related bargaining dispute in

such proceedings, the Authority will dismiss the petition for review

without prejudice to the right of the exclusive representative to

refile the petition, after the other proceeding is completed, if

necessary to resolve remaining issues. After such refiling, the

Authority will determine whether resolution of the petition for review

is still required. Under the proposed section, an exclusive

representative would, if it filed both an unfair labor practice charge

and a petition for review, no longer have the ability to select which

should be processed first.

Subsection (b) of the revised regulation distinguishes between two

categories of cases: (1) Cases raising a negotiability dispute only;

and (2) cases raising both a negotiability dispute and a bargaining

dispute.

With respect to the first category, the Authority will resolve the

petition under the procedures set out in subsection (b)(1). With

respect to the second category, the regulation identifies three

approaches in section (b)(2) under which the Authority may proceed, the

last of which proposes a significant change to the current practice.

Under (b)(2)(i), the Authority will inform the exclusive representative

of other proceedings in which it may raise the bargaining dispute; if

the exclusive representative proceeds to raise the bargaining dispute

in another proceeding, the petition will be processed in accord with

subsection (a) of this section. Section (b)(2)(ii), which is the

current practice, allows the Authority to address and resolve only the

negotiability--but not the bargaining--dispute. Under the final option,

section (b)(2)(iii), the Authority would address and resolve both the

negotiability dispute and the bargaining dispute aspects of a case.

This option departs from current practice, in which the Authority does

not resolve bargaining dispute issues in the negotiability process;

where such disputes exist, the parties are obliged to pursue them in

other proceedings. This change would, in appropriate cases,

[[Page 48133]]

relieve the parties of the burden of litigating the same dispute in

two, consecutive proceedings.

Section 2424.32. This section sets out the time limits for filing,

contents, and service of the agency's statement of position. These

requirements make several changes to the requirements that now appear

in the current Sec. 2424.6. As with the petition for review, a form

will be developed for use in filing, but its use will not be required

provided that the statement of position includes all of the information

set forth in the regulation. Consistent with section 7117(c)(3) of the

Statute, a statement of position must be filed and, as set forth in

sections 2424.35 and 2424.37 of the regulations, failure to do so may

result in the Authority's refusal to consider an argument or may be

considered a withdrawal of previous allegations of nonnegotiability

and/or a concession. As an example, an assertion made in an allegation

of nonnegotiability but not repeated in a statement of position will,

in appropriate circumstances, be deemed withdrawn. As another example,

an agency's failure to respond to an exclusive representative's

assertion that a proposal constitutes an appropriate arrangement within

the meaning of section 7106(b)(3) of the Statute, whether or not the

agency repeats an argument that the proposal is inconsistent with

section 7106(a), will, in appropriate circumstances, be deemed a

concession that the proposal is within the duty to bargain under

section 7106(b)(3).

In addition to setting out the time limits for filing, subsection

(a) provides that the time limits may be extended. Subsection (b),

concerning the content of the statement of position, retains and

broadens the requirements in the current regulation by, for example,

requiring that the agency provide a copy of the particular section of

any law, rule, regulation, collective bargaining agreement, or other

authority relied on as a basis for an objection or assertion that the

matter is outside the duty to bargain, and describe with particularity

any opposition to the exclusive representative's request for severance.

Service of the statement of position is addressed in subsection (c).

Comment is specifically requested on whether the proposed

requirements are burdensome. If the requirements are viewed as

burdensome, then commenters are requested to suggest alternatives to

create a record sufficient for an exclusive representative to file a

complete response and for the Authority to resolve the negotiability

and/or bargaining dispute.

Section 2424.33. All matters related to the exclusive

representative's response to the agency's statement of position that

currently appear in Sec. 2424.7 are incorporated here. The section

mirrors the format of the preceding section, setting out time limits,

contents, and service requirements in subsections (a), (b), and (c)

respectively. Subsection (a) provides that time limits may be extended.

As with other sections of the proposed rules, subsection (b) indicates

that a form will be developed for use in filing, but its use will not

be required provided that the response includes all of the information

set forth in the regulation. The section requires that the exclusive

representative specifically support any allegations and citations

offered in response to the agency's statement of position. Service of

the statement of position is addressed in subsection (c).

This section is not intended to require an exclusive representative

to restate arguments and information that were included in its petition

for review. However, consistent with section 7117(c)(4) of the Statute,

a response must be filed and, as set forth in sections 2424.35 and

2424.37 of the regulations, failure to address an assertion or argument

made in an agency's statement of position may result in the Authority's

refusal to consider an argument or may be deemed a concession. As an

example, an exclusive representative's failure to respond to an

agency's assertion that a proposal would directly determine the

conditions of employment of employees outside the bargaining unit will,

in appropriate circumstances, be deemed a concession that it would have

that effect.

Section 2424.34. This new section explains procedures through which

the Authority, or a representative of the FLRA, may resolve factual

disputes arising in connection with a negotiability and/or bargaining

dispute.

Section 2424.35. This section, which incorporates certain

provisions in the current Sec. 2424.4, outlines the options available

to the Authority in the event that a party fails to participate in a

conference or provide timely, complete, and responsive information.

Subsections (a)-(e) define the actions the Authority may, in its

discretion, take to address a party's failures in these respects.

Section 2424.36. This section, which addresses additional

submissions to the Authority, incorporates the requirements set out in

the current Sec. 2424.8.

Section 2424.37. This new section defines both the exclusive

representative's and the agency's responsibilities to make, respond to,

and support arguments. Subsection (a) specifies the exclusive

representative's responsibilities. Absent good cause, the regulations

limit the exclusive representative's arguments to those raised in its

petition for review and those made in response to the agency's

statement of position. Similarly, subsection (b) specifies the agency's

responsibilities and, absent good cause, prohibits an agency from

subsequently raising arguments in its statement of position or any

other proceeding that it did not raise in the prefiling or postfiling

conference. Failure by either party to raise, support, or respond to a

particular objection or assertion will be deemed, as appropriate, a

concession to, or withdrawal of, the objection or assertion.

Section 2424.38. This section regarding the holding of a hearing

pursuant to 5 U.S.C. 7117(c)(5) contains no changes from the current

Sec. 2424.9.

Section 2424.39. This section is reserved.

Subpart E--Decision and Order

Section 2424.40. Matters related to decisions and orders of the

Authority, which currently appear in Sec. 2424.10, are moved to this

section and appear in subsections (a) , (b), and (c). Subsection (a)

states that the Authority will expedite proceedings to the extent

practicable. Subsection (b) explains the actions the Authority will

take with respect to proposals and subsection (c) explains the actions

the Authority will take with respect to provisions disapproved on

agency head review. This section is intended to clarify the actions

that the Authority will take in its decisions and orders, depending on

the determinations reached in individual cases. For example, the

Authority order will note when bargaining dispute defenses have been

raised but not resolved and the Authority's order will recognize the

severance of provisions or proposals.

Section 2424.41. The current Sec. 2424.10(c) is moved to this

section. No changes are made.

Sections 2424.42--2424.49. These sections are reserved.

Subpart F--Criteria for Determining Compelling Need for Agency Rules

and Regulations

Section 2424.50. The current Sec. 2424.11 is moved to this section.

No changes are made.

Sections 2424.51--2424.59. These sections are reserved.

[[Page 48134]]

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 record keeping 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 discussed in the preamble, the Federal Labor

Relations Authority proposes to revise 5 CFR Part 2424 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]

Subpart B--Prefiling Procedures in Cases Involving Proposals

2424.10 Collaboration and Alternative Dispute Resolution Program.

2424.11 Notice of intent to appeal.

2424.12 Prefiling conference.

2424.13 Requesting and giving allegations concerning the duty to

bargain.

2424.14-2424.19 [Reserved]

Subpart C--Filing a Petition

2424.20 Who may file a petition.

2424.21 Time limits for filing a petition.

2424.22 Content of petition.

2424.23 Service of petition.

2424.24-2424.29 [Reserved]

Subpart D--Processing of a Petition for Review

2424.30 Postfiling conference in cases involving provisions.

2424.31 Procedure through which the petition for review will be

resolved.

2424.32 Agency statement of position; time limits; content;

service.

2424.33 Response of the exclusive representative; time limits;

content; service.

2424.34 Resolution of disputed factual matters.

2424.35 Participation in conferences; incomplete or untimely

submissions; Authority requests for supplemental information.

2424.36 Additional submissions to the Authority.

2424.37 Responsibilities to make, respond to, and support

arguments.

2424.38 Hearing.

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 written allegations of

nonnegotiability that are requested by exclusive representatives after

January 1, 1999; all petitions for review filed after January 1, 1999

by exclusive representatives in response to agency head disapprovals of

contract provisions; and all petitions for review filed after January

1, 1999 in response to written allegations of nonnegotiability that

were requested prior to that date.

Sec. 2424.2 Definitions.

In this part, the following definitions shall apply:

(a) Bargaining 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. A bargaining dispute may exist where there

is no dispute about the legality of a proposal.

(b) Collaboration and Alternative Dispute Resolution Program refers

to an agency-wide program in the Federal Labor Relations Authority that

assists the parties in resolving 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 agency contends that

a proposal or provision is not a proper subject of bargaining under any

circumstances, and when an agency contends that a proposal is

bargainable only at its election.

(d) Notice of intent to appeal means a written notice that an

exclusive representative must file with the Authority prior to

requesting a written allegation from an agency that the duty to bargain

in good faith does not extend to a matter proposed to be bargained.

(e) Petition for review means an appeal filed with the Authority

after:

(1) An exclusive representative has requested a written allegation

from an agency that the duty to bargain in good faith does not extend

to a matter proposed to be bargained; or

(2) An agency head has disapproved a provision.

(f) Proposal means any matter offered for bargaining that has not

been agreed to by the parties.

(g) Provision means any matter that has been offered for bargaining

and agreed to by the parties, including matters disapproved by the

agency head on review pursuant to 5 U.S.C. 7114(c).

(h) Service requires compliance with part 2429 of this subchapter

and also requires the parties to serve copies of any filing on the

other's principal bargaining representative and, in the case of an

exclusive representative, on the head of the agency.

(i) Severance refers to the division of a proposal or provision

into separate parts having independent meaning in the event that

certain parts of a proposal are determined to be outside the duty to

bargain or certain parts of a provision are determined to be contrary

to law.

(j) Written allegation concerning the duty to bargain means an

agency allegation, provided in response to a written request from an

exclusive representative, that the duty to bargain in good faith does

not extend to a matter.

[[Page 48135]]

Sec. 2424.3-2424.9 [Reserved]

Subpart B--Prefiling Procedures in Cases Involving Proposals

Sec. 2424.10 Collaboration and Alternative Dispute Resolution Program.

Where the parties experience difficulties in resolving disputes

that arise under this part, they may voluntarily request the assistance

of the Collaboration and Alternative Dispute Resolution Program. This

program will endeavor to assist the parties to resolve these disputes

before they become cases, utilize alternative dispute resolution

techniques, and develop collaborative and constructive relationships.

Sec. 2424.11 Notice of intent to appeal.

(a) Precondition. After the parties have attempted, but failed to

reach agreement over a proposal and the agency has indicated that the

duty to bargain does not extend to the proposal under consideration,

prior to requesting a written allegation concerning the duty to

bargain, the exclusive representative must file a notice of intent to

appeal with the Authority. The filing of a notice of intent to appeal

does not relieve the parties of any obligation to continue negotiations

in an effort to resolve the dispute.

(b) Form and content. The notice of intent to appeal must be in

writing on a form provided by the Authority for that purpose, or in a

substantially similar format, and must briefly describe any proposal

that the agency has claimed to be the subject of a negotiability

dispute and any attempts to reach agreement over the proposal. It must

contain the names, addresses, telephone, and facsimile numbers of the

parties to the negotiations.

(c) Service. The notice of intent to appeal must be served in

accord with Sec. 2424.2(h).

Sec. 2424.12 Prefiling conference.

(a) Conduct of conference. On receipt of the notice of intent to

appeal, a representative of the FLRA will determine whether to conduct

and, where appropriate, will conduct, one or more prefiling conferences

either by telephone or in person. If it is determined not to conduct a

conference, the parties will be provided the reasons for such

determination. All parties to the dispute must participate in any

prefiling conference and be prepared to discuss and clarify:

(1) The meaning of the proposal(s) in dispute;

(2) Any disputed factual issue(s);

(3) Any agency negotiability dispute objections to the proposal(s);

(4) Any agency bargaining dispute defenses to the proposal(s);

(5) Whether the dispute is also involved in an unfair labor

practice charge under part 2423 of this subchapter, in a grievance

pursuant to 5 U.S.C. 7121, or an impasse procedure under part 2470 of

this subchapter;

(6) Whether the dispute can be resolved through the Collaboration

and Alternative Dispute Resolution program.

(b) Record of the prefiling conference. After the prefiling

conference has been completed, the representative of the FLRA will

prepare and serve a report of what transpired during the conference.

The parties have 10 days to file written objection to the report of the

prefiling conference, which will be made part of the record of the

conference.

Sec. 2424.13 Requesting and giving written allegations concerning the

duty to bargain.

(a) Relationship between prefiling conference and requests for

written allegations concerning the duty to bargain. The exclusive

representative may not request a written allegation concerning the duty

to bargain until the prefiling conference has been completed. Provided

however, if the Authority declines to hold a prefiling conference or if

a prefiling conference has not been completed within 30 days of the

filing of a notice of intent to appeal, the exclusive representative

may request a written allegation concerning the duty to bargain.

(b) Agency response. The agency must respond to the exclusive

representative's request and effect service in accord with

Sec. 2424.2(h).

Secs. 2424.14--2424.19 [Reserved]

Subpart C--Filing a Petition

Sec. 2424.20 Who may file a petition.

A petition for review of a negotiability issue may be filed by an

exclusive representative that is a party to the negotiations, and has

complied with subpart B. Provided however, that where, pursuant to 5

U.S.C. 7114(c), an agency head has disapproved a provision, an

exclusive representative may file a petition without having complied

with subpart B.

Sec. 2424.21 Time limits for filing a petition.

The time limit for filing a petition for review is fifteen (15)

days after the date of service of the agency's written allegation,

requested and provided in accord with Secs. 2424.12 and 2424.13, that

the duty to bargain in good faith does not extend to the matter

proposed to be bargained. Provided however, that review of a

negotiability issue may be requested by an exclusive representative

under this subpart without a prior written allegation concerning the

duty to bargain if the agency has not served such written allegation

upon the exclusive representative within ten (10) days after the agency

bargaining representative at the negotiations has received a written

request for such allegation. A written allegation concerning the duty

to bargain that is provided prior to the notice of intent to appeal and

prefiling conference described in subpart B will not begin the 15-day

filing period for the petition for review.

Sec. 2424.22 Content of petition.

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 contain the following:

(a) A statement setting forth the language of any proposal or

provision, including any modifications resulting from the prefiling

conference.

(b) An explicit statement of the meaning of the proposal or

provision as a result of the prefiling conference, including:

(1) Explanation of special terms or phrases, technical language, or

any other aspect of the language of the proposal or provision that is

not in common usage or has a different meaning in the particular work

situation; and

(2) Where the proposal or provision is concerned with a particular

work situation, or other particular circumstances, a description of the

situation or circumstances that will enable the Authority to understand

the context in which the proposal is intended to apply; and

(3) Explanation of how the proposal or provision is intended to

work and a description of the impact that it will have.

(c) A statement whether severance is requested, and if so, as to

which particular portions of the proposal or provision. The exclusive

representative must support its request for severance with an

explanation of how the severed portions of the proposal or provision

may stand alone, and how such severed portions would operate.

(d) Where available, a copy of the record of the prefiling

conference.

(e) A copy of all pertinent material, including the agency's

written allegation concerning the duty to bargain, any matter referred

to in the proposal or provision, and any other relevant documentary

material.

(f) Notification by the petitioning exclusive representative as to

whether the dispute is also involved in an unfair

[[Page 48136]]

labor practice charge under part 2423 of this subchapter, in a

grievance pursuant to 5 U.S.C. 7121, or an impasse procedure under part

2470 of this subchapter.

(g) Any request for a hearing before the Authority and the reasons

supporting such suggestion.

(h) A table of contents and a table of legal authorities cited if

the petition for review exceeds 25 double-spaced pages in length.

Sec. 2424.23 Service of petition.

The petition for review must be served in accord with

Sec. 2424.2(h).

Sec. 2424.24--2424.29 [Reserved]

Subpart D--Processing of a Petition for Review

Sec. 2424.30 Postfiling conference in cases involving provisions.

(a) Conduct of conference. On receipt of the petition for review

involving a provision, a representative of the FLRA will, where

appropriate, conduct one or more postfiling conferences either by

telephone or in person. All parties to the dispute must participate in

any postfiling conference and be prepared to discuss and clarify:

(1) The meaning of the provision(s) in dispute;

(2) Any disputed factual issue(s);

(3) Any agency negotiability dispute objections to the

provision(s);

(4) Any agency bargaining dispute defenses to the provision(s);

(5) Whether the dispute is also involved in an unfair labor

practice charge under part 2423 of this subchapter, in a grievance

pursuant to 5 U.S.C. 7121, or an impasse procedure under part 2470 of

this subchapter;

(6) Whether the dispute can be resolved through the Collaboration

and Alternative Dispute Resolution program.

(b) Extension of time limits. The representative of the FLRA may,

on determining that it will effectuate the purposes of the Federal

Service Labor Management Relations Statute and this part, extend the

time limits for filing set out in Secs. 2424.32 and 2424.33.

(c) Record of the postfiling conference. After the postfiling

conference has been completed, the representative of the FLRA will

prepare and serve a report of what transpired during the conference.

The parties have 10 days to file written objection to the report of the

postfiling conference, which will be made part of the record of the

conference.

Sec. 2424.31 Procedure through which the petition for review dispute

will be resolved.

(a) Exclusive representative has pursued bargaining dispute in

other proceedings. Where an exclusive representative files an unfair

labor practice charge pursuant to part 2423 of this subchapter or

grievance under 5 U.S.C. 7121, and also files a petition for review

pursuant to this part concerning the same dispute, the Authority will

dismiss the petition for review without prejudice to the right of the

exclusive representative to refile the petition for review after the

unfair labor practice or the grievance has been resolved. After the

unfair labor practice charge or grievance is resolved, the exclusive

representative may refile the petition within 30 days of resolution of

the unfair labor practice charge or grievance, and the Authority will

determine whether the resolution of the petition is still required.

(b) Exclusive representative has not pursued bargaining dispute in

other proceedings. Where an exclusive representative files only a

petition for review under this part, the petition will be processed as

follows:

(1) Agency does not assert bargaining dispute defenses. Where the

agency has not asserted any bargaining dispute defenses, the Authority

will resolve the petition by addressing the negotiability dispute

objections under the procedures of this part.

(2) Agency does assert bargaining dispute defenses. Where the

agency has asserted bargaining dispute defenses, the Authority will

either:

(i) Inform the exclusive representative of any opportunity to file

an unfair labor practice charge pursuant to part 2423 or a grievance

under 5 U.S.C. 7121 and, where the exclusive representative pursues

either of these courses, proceed in accord with paragraph (a) of this

section;

(ii) Proceed to resolve only the negotiability dispute aspects of

the petition, but not the bargaining dispute defenses raised by the

agency; or,

(iii) Proceed to resolve the petition in its entirety, including

any negotiability dispute objections and bargaining dispute defenses

raised by the agency, under the procedures of this part.

Sec. 2424.32 Agency statement of position; time limits; content;

service.

(a) Time limit for filing. Unless the time limit for filing has

been extended pursuant to Sec. 2424.30(b) or Sec. 2429.23, the agency

must file a statement of position within thirty (30) days after the

date the head of the agency receives a copy of a petition for review of

a negotiability issue.

(b) Contents. 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 the allegation that the duty to bargain in good faith

does not extend to the matter proposed to be negotiated; 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 full and detailed statement of the reasons

supporting any objections or assertions made concerning any proposal

during the prefiling conference or provision during the postfiling

conference. The statement must cite and contain a copy of the

particular section of any law, rule, regulation, or provision of a

collective bargaining agreement relied on. The statement also must cite

and contain a copy of other authority relied on as a basis for the

objection or assertion, except that copies of published judicial

decisions and decisions of the Authority are not required. The agency

must submit legal arguments and explanation in support of its

contentions that the duty to bargain does not extend to a particular

matter. The statement of position must also include:

(i) If different from the exclusive representative's position, an

explanation of the meaning the agency attributes to the proposal or

provision, including any special terms or phrases, technical language,

or any other aspect of the language of the proposal or provision that

is not in common usage or has a different meaning in the particular

work situation, and the reasons for disagreeing with the exclusive

representative's explanation of meaning;

(ii) A description of the particular work situation, or other

particular circumstances the agency views the proposal or provision to

concern, which will enable the Authority to understand the context in

which the proposal is considered to apply to the agency; and

(iii) If different from the exclusive representative's position, an

explanation of how the agency asserts the proposal or provision is

intended to work and a description of the impact that it will have, and

the reasons for disagreeing with the exclusive representative's

explanation of meaning;.

(3) If the agency opposes the exclusive representative's request

for severance in any respect, the agency must explain with

particularity why severance is not appropriate.

(4) A table of contents and a table of legal authorities cited if

the statement of position exceeds 25 double-spaced pages in length.

(c) Service. A copy of the agency's statement of position,

including all

[[Page 48137]]

attachments thereto, must be served in accord with Sec. 2424.2(h).

Sec. 2424.33 Response of the exclusive representative; time limits;

content; service.

(a) Time limit for filing. Unless the time limit for filing has

been extended pursuant to Sec. 2424.30(b) or Sec. 2429.23, 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 full and detailed response.

(b) Contents. The response must be on a form provided by the

Authority for that purpose, or in a substantially similar format. The

exclusive representative's response is specifically limited to the

matters raised in the agency's statement of position. The response must

state the exclusive representative's position including:

(1) Any disagreement with the agency's allegation that a proposal

is not within the duty to bargain or that a provision is contrary to

law. The exclusive representative must offer specific arguments and

explanations in opposition to any agency argument, including the

identification and explanation of exceptions to management rights, such

as negotiable procedures and appropriate arrangements. The response

must cite and contain a copy of the particular section of any law,

rule, regulation, or provision of a collective bargaining agreement

relied on. The response also must cite and contain a copy of other

authority relied on as a basis for the objection or assertion, except

that copies of published judicial decisions and decisions of the

Authority are not required;

(2) Any arguments and explanations, in response to an agency's

allegations, that a proposal or provision is severable; and

(3) Any allegation that the agency's rules or regulations 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. All such allegations must be supported by argument,

explanation, and citation to any applicable law, rule, or regulation.

(4) 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.

(c) Service. A copy of the response of the exclusive representative

including all attachments thereto must be served in accord with

Sec. 2424.2(h).

Sec. 2424.34 Resolution of disputed factual matters.

In resolving necessary factual matters in a negotiability or

bargaining dispute, the Authority, or its designated agent, may, as

appropriate:

(a) Request specific documentary evidence;

(b) Request that the parties provide answers to specific factual

questions in the form of interrogatories;

(c) Refer the matter for fact finding and a recommended decision

before a hearing officer designated by the Authority; or

(d) Take any other action that will aid in the resolution of the

disputed factual issue, including the holding of a hearing in accord

with Sec. 2424.38.

Sec. 2424.35 Participation in conferences; incomplete or untimely

submissions; Authority requests for supplemental information.

Where a party fails to participate in a prefiling conference,

pursuant to Sec. 2424.12, or a postfiling conference as described in

Sec. 2424.30, or where a party provides an untimely or incomplete

petition for review as described in Sec. 2424.22, an untimely or

incomplete statement of position as described in Sec. 2424.32, an

untimely or incomplete response to an agency's statement of position as

described in Sec. 2424.33, or otherwise fails to provide timely or

responsive information under this part, the Authority may as

appropriate and in its discretion:

(a) Refuse to consider certain exclusive representative arguments

and, where appropriate, dismiss the petition for review, with or

without prejudice to refile;

(b) Refuse to consider certain agency arguments and, where

appropriate, grant the petition for review and order the agency to

bargain, with or without conditions;

(c) Direct a party to provide the necessary or requested

information, or direct the holding of a fact finding conference or

hearing for the purpose of obtaining the necessary or requested

information;

(d) Disregard and/or strike from the record portions of a party's

claims and arguments that rely on information not provided;

(e) Take any other action which in the Authority's discretion is

deemed appropriate.

Sec. 2424.36 Additional submissions to the Authority.

The Authority will not consider any submission filed by any party,

whether supplemental or responsive in nature, other than those

authorized or requested under this part, except that the Authority may,

in its discretion, grant permission to file such a submission based on

a written request by any party, a copy of which is served in accord

with this part.

Sec. 2424.37 Responsibilities to make, respond to, and support

arguments.

(a) Responsibilities of the exclusive representative. In the

petition for and response to the agency's statement of position filed

pursuant to this part, the exclusive representative has the burden of

explaining fully why the proposals or provisions under consideration

are within the duty to bargain and, where applicable, why severance is

appropriate. Failure to address an assertion or objection raised by the

agency, will, where appropriate, be deemed a concession to such

objection or assertion. Absent good cause, arguments not presented in

the petition for review or made in response to the agency's statement

of position may not be raised in the response.

(b) Responsibilities of the agency. In the statement of position,

filed pursuant to Sec. 2424.32, the agency has the burden of explaining

fully why the proposals or provisions under consideration are outside

the duty to bargain or contrary to law, respectively, and where

applicable, its position on severance. Failure to raise and support an

objection or defense, will, where appropriate, be deemed a withdrawal

of such objection or assertion, and failure to address an assertion

raised by the exclusive representative will, where appropriate, be

deemed a concession to such assertion. Absent good cause, arguments not

raised in the prefiling conference, pursuant to Sec. 2424.12, or

postfiling conference, pursuant to Sec. 2424.30, may not be raised in

the agency's statement of position or in any other proceeding.

Sec. 2424.38 Hearing.

A hearing may be held, in the discretion of the Authority, before a

determination is made under 5 U.S.C. 7117(b) or (c). If a hearing is

held, it will be expedited to the extent practicable and will not

include the General Counsel as a party.

Sec. 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 shall expedite proceedings under this part to the extent

practicable and shall issue to the exclusive representative and

[[Page 48138]]

to the agency a written decision on the allegation and the specific

reasons therefor at the earliest practicable date.

(b) Cases involving proposals. If the Authority finds that the duty

to bargain extends to the matter proposed to be bargained or any

severable part of a matter proposed to be bargained, the decision of

the Authority will include an order that the agency must on request (or

as otherwise agreed to by the parties) bargain concerning such matter.

If the Authority finds that the duty to bargain does not extend to the

matter proposed to be bargained, the Authority will so state and issue

an order dismissing the petition for review of the negotiability issue.

If the Authority finds that the matter is bargainable only at the

election of the agency, the Authority will so state. If the Authority

finds that the duty to bargain extends to the negotiability dispute

aspects of the proposal, but there are unresolved bargaining dispute

defenses, the decision of the Authority will include an order that the

agency must on request (or as otherwise agreed to by the parties)

bargain on this negotiability dispute in the event its bargaining

dispute defenses are rejected.

(c) Cases involving provisions. If the Authority finds that a

provision, or any severable part thereof, disapproved by an agency head

pursuant to 5 U.S.C. 7114(c) is not contrary to law, rule or

regulation, the decision of the Authority will include an order that

the agency must rescind its disapproval of such provision in whole or

in part as appropriate. If the Authority finds that a provision

disapproved by an agency head pursuant to 5 U.S.C. 7114(c) is contrary

to law, rule, or regulation, the Authority will so state and issue an

order dismissing the petition for review as to that provision. If the

Authority finds that an agreement provision, or any severable part

thereof, disapproved by the agency head pursuant to 5 U.S.C. 7114(c),

is bargainable only at the election of the agency, the Authority will

so state and issue an order that the agency must rescind its

disapproval of such provision in whole or in part as appropriate.

Sec. 2424.41 Compliance.

The agency or exclusive representative may report to the

appropriate Regional Director within a specified period the failure to

comply with an order, issued as provided in Sec. 2424.40, that the

agency must upon request (or as otherwise agreed to by the parties)

bargain concerning the disputed matter or that the agency must rescind

its disapproval of a provision. If the Authority finds such a failure

to comply with its order, the Authority shall take whatever action it

deems necessary, 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 which 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: September 3, 1998.

Solly Thomas,

Executive Director, Federal Labor Relations Authority.

[FR Doc. 98-24164 Filed 9-8-98; 8:45 am]

BILLING CODE 6727-01-P