United States Department of Veterans Affairs (Petitioner)

71 FLRA No. 87   

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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UNITED STATES DEPARTMENT OF VETERANS

AFFAIRS

(Petitioner)

0‑PS‑42

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DECISION ON REQUEST

FOR GENERAL STATEMENT

OF POLICY OR GUIDANCE

December 13, 2019

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Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

I.            Statement of the Case

Pursuant to § 2427.2 of the Authority’s Regulations,^[1] the Petitioner requests that the Authority issue a general statement of policy or guidance clarifying the meaning of the phrase “adversely affected” in § 7106(b)(3) of the Federal Service Labor‑Management Relations Statute (the Statute).^[2]

II.          Background

Under § 7106(b)(3) of the Statute, parties must bargain over “appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.”^[3]  According to the Petitioner, the Authority has expansively interpreted “adversely affected,” which results in “extensive and time‑consuming negotiations before agencies can exercise [the] management rights”^[4] set forth in § 7106(a) of the Statute.^[5]

The Petitioner acknowledges that the Authority uses the long-established analysis set forth in NAGE, Local R-14-87^[6] to determine whether a proposal is within the duty to bargain under § 7103(b)(3).  However, the Petitioner asks the Authority to change its analytical framework to create a “rebuttable presumption” that the exercise of a management right under § 7106(a) of the Statute does not “adversely affect” employees.^[7]  The Petitioner explains that, under its proposed standard, a labor organization could only rebut the presumption by presenting evidence – rather than merely asserting – that any proposal is a response “to actual adverse effects directly caused by the exercise of [a] management right[].”^[8]  The Petitioner posits that the Authority’s adoption of such a requirement would permit agencies to exercise their management rights “immediately” without bargaining.^[9]

III.         Discussion

Upon careful consideration of the Petitioner’s request, we find that it is not appropriate for resolution through the issuance of a general ruling.^[10]  These questions would most appropriately be addressed in the context of the facts and circumstances presented by parties involved in an actual dispute.^[11]  Accordingly, we deny the request.

IV.         Order

We deny the Petitioner’s request.