Negotiability Proceedings

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

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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

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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

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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

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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

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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