NEGOTIABILITY PROCEEDINGS

 

[Federal Register: September 9, 1998 (Volume 63, Number 174)]

[Proposed Rules]               

[Page 48130-48138]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr09se98-11]


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Proposed Rules

                                                Federal Register

________________________________________________________________________


This section of the FEDERAL REGISTER contains notices to the public of 

the proposed issuance of rules and regulations. The purpose of these 

notices is to give interested persons an opportunity to participate in 

the rule making prior to the adoption of the final rules.


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[[Page 48130]]



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FEDERAL LABOR RELATIONS AUTHORITY


5 CFR Part 2424


 

Negotiability Proceedings


AGENCY: Federal Labor Relations Authority.


ACTION: Notice of proposed rulemaking; notice of meetings.


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

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

to revise the regulations concerning negotiability proceedings. The 

purpose of the proposed revisions is to expedite these proceedings and 

facilitate dispute resolution.


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

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

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

D.C.


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

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

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

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

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

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

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

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

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

Agenda Room.


FOR FURTHER INFORMATION CONTACT: Regulatory information or registration 

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

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

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

Regional Office, Federal Labor Relations Authority, 55 West Monroe 

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

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

Vandenberg, San Francisco Regional Office, Federal Labor Relations 

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

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


SUPPLEMENTARY INFORMATION: The Chair and Members of the Authority 

established an internal Task Force to study and evaluate the policies 

and procedures in effect concerning negotiability proceedings. To this 

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

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

subjects relevant to negotiability proceedings. In addition, the Task 

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

views prior to proposing these revisions.

    The proposed revisions represent the Authority's intent to improve 

and expedite negotiability proceedings. Major aspects of the proposed 

regulations include pre- and postfiling procedures and conferences 

designed to narrow and clarify issues to be resolved; revised 

processing procedures that will enable the Authority, where 

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

the responsibilities of each party. The proposed revisions also divide 

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

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

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

F--Compelling need determinations.

    In connection with the proposed revisions to Part 2424, three 

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

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

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

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

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

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

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

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

interested in attending this second meeting should call Lisa C. 

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

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

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

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

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

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

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

attendance.

    Copies of all written comments will be available for inspection and 

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

415 at the Office of Case Control.

    Sectional analyses of the proposed amendments and revisions to Part 

2424, Negotiability Proceedings, are as follows.


Part 2424--Negotiability Proceedings


Subpart A--Applicability of This Part

    Section 2424.1. This section establishes the January 1, 1999 

effective date of the regulations. The section clarifies that the 

revised regulations will be applied to all written allegations of 

nonnegotiability that are requested by exclusive representatives after 

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

by exclusive representatives in response to agency head disapprovals of 

contract provisions; and all petitions for review filed after January 

1, 1999 in response to written allegations of nonnegotiability that 

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

allegation is actually provided to the exclusive representative prior 

to that date).

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

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

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

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

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

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

requirements applicable to requests for allegations of nonnegotiability 

regarding proposals for bargaining and petitions for review of agency-

head disapprovals of provisions.

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

concerning the legality of a proposal or provision.


[[Page 48131]]


Specifically, a negotiability dispute is raised by an agency contention 

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

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

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

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

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

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

circumstances, or when an agency contends that a proposal is 

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

a proposal constitutes an appropriate arrangement for employees 

adversely affected by the exercise of a management right under section 

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

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

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

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

whether the proposal is otherwise consistent with law and regulation. 

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

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

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

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

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

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

unit employees' conditions of employment is de minimis raises a 

``bargaining dispute.''

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

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

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

a particular proposal is outside the duty to bargain under any 

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

required to bargain over the proposal in the specific circumstances of 

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

agreement.

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

refer to discussions among representatives of the parties and a 

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

exclusive representative requests a written allegation of 

nonnegotiability concerning a proposal for bargaining and encompasses 

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

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

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

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

petition for review by an exclusive representative but before the 

filing of the agency's statement of position.

    Sections 2424.3-2424.9. These sections are reserved.

Subpart B--Prefiling Procedures in Cases Involving Proposals

    Subpart B proposes significant changes to the current procedures 

for processing a negotiability appeal involving a proposal. As prompted 

by suggestions from the Task Force and numerous commenters, the 

proposed procedures facilitate early involvement by the Authority with 

the intention to assist resolution of disputes without the necessity 

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

are subsequently filed, these procedures facilitate clarification and 

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

Authority's decision-making process.

    The procedures in this subpart would establish one of several 

options considered by the Authority for implementing these goals. This 

option requires a prefiling conference among the parties and a 

representative of the FLRA before an exclusive representative would be 

permitted to request a written allegation of nonnegotiability from an 

agency. The prefiling conference would only be conducted if the 

exclusive representative had attempted to bargain on a specific 

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

proposal was not a proper subject of bargaining under any circumstances 

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

potential for substantial benefits to exclusive representatives, 

agencies, and the Authority by resolving disputes without commencing a 

formal adjudicatory proceeding. However, the Authority also recognizes 

that such requirement could generate unnecessary, or premature, 

requests for Authority assistance. Such requirement also could be 

viewed as creating an additional, unnecessary forum for resolution of 

disputes.

    Comments are also requested on two alternatives to requiring a 

prefiling conference. First, the prefiling conference could be made 

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

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

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

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

Sec. 2424.30 for petitions involving provisions that have been 

disapproved by an agency head.

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

seeks comment on whether an optional or required conference among the 

parties and a representative designated by the Authority should take 

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

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

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

connection with provisions that have been disapproved by an agency 

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

receipt of comments, the Authority will determine and promulgate a 

final regulation setting out the most appropriate conference procedure.

    Section 2424.10. This section advises the parties of the 

availability of the Federal Labor Relations Authority's Collaboration 

and Alternative Dispute Resolution Program to assist them in resolving 

disputes that arise under this part.

    Section 2424.11. This section and section 2424.12 introduce a new 

dispute resolution process that is designed to address negotiability 

and bargaining disputes between the parties prior to an exclusive 

representative requesting, and the agency providing, a written 

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

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

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

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

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

requirements, of such notice.

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

discussions between the parties and a designated representative of the 

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

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

conduct a prefiling conference with the parties where such a conference 

is appropriate. A prefiling conference is appropriate and will be 

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

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

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

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

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

prefiling conference are specifically set forth in the regulation. A 

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

object, will be prepared in accordance with subsection


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

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

concluding the conference.

    Section 2424.13. This section incorporates and amends the current 

procedure for requesting and giving allegations of nonnegotiability set 

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

regulation provides that an exclusive representative may not seek a 

written allegation concerning the duty to bargain over a particular 

proposal until the Authority has completed the prefiling conference, 

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

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

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

representative to request a written allegation concerning the duty to 

bargain after the passage of 30 days.

    Sections 2424.14-2424.19. These sections are reserved.

Subpart C--Filing a Petition

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

of the current regulations. The revised regulation provides that an 

exclusive representative must comply with the prefiling requirements 

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

revised regulation explains that Subpart B does not apply in cases 

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

U.S.C. 7114.

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

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

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

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

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

in which to file a petition for review.

    Section 2424.22. This section incorporates and expands the content 

requirements for a petition for review contained in current 

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

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

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

addition to the requirements in the current regulation, this section 

requires the exclusive representative to provide additional information 

in the petition, including any modifications to the proposal or 

provision resulting from the prefiling conference, a statement as to 

whether severance is requested and support for such a request, 

notification of whether the negotiability dispute is involved in an 

impasse procedure under part 2470 of this subchapter or a grievance 

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

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

conference. The section also requires that any petition for review 

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

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

applies to agency statements of position under section 2424.32 and 

responses of exclusive representatives under section 2424.33, mirrors 

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

exceptions to administrative law judge decisions in unfair labor 

practice cases.

    Comment is specifically requested on whether the proposed 

requirements are burdensome. If the requirements are viewed as 

burdensome, then commenters are requested to suggest alternatives to 

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

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

bargaining dispute.

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

concerning service of the petition for review.

    Sections 2424.24-2424.29. These sections are reserved.

Subpart D--Processing a Petition for Review

    Subpart D establishes procedures for processing petitions for 

review involving proposals and provisions. Section 2424.30, discussed 

below, requires a postfiling conference in cases involving provisions, 

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

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

    Section 2424.30. This section addresses the processing of petitions 

for review involving provisions in a collective bargaining agreement. 

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

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

the conference would be the same as those established in section 

2424.12(a) for prefiling conferences.

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

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

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

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

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

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

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

identical procedures for the records of prefiling conferences.

    Section 2424.31. This section replaces and significantly changes 

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

will act on petitions raising negotiability disputes where the 

exclusive representative has pursued a related bargaining dispute in 

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

exclusive representative has pursued a related bargaining dispute in 

such proceedings, the Authority will dismiss the petition for review 

without prejudice to the right of the exclusive representative to 

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

necessary to resolve remaining issues. After such refiling, the 

Authority will determine whether resolution of the petition for review 

is still required. Under the proposed section, an exclusive 

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

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

should be processed first.

    Subsection (b) of the revised regulation distinguishes between two 

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

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

dispute.

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

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

respect to the second category, the regulation identifies three 

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

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

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

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

the exclusive representative proceeds to raise the bargaining dispute 

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

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

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

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

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

negotiability dispute and the bargaining dispute aspects of a case. 

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

not resolve bargaining dispute issues in the negotiability process; 

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

other proceedings. This change would, in appropriate cases,


[[Page 48133]]


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

two, consecutive proceedings.

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

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

requirements make several changes to the requirements that now appear 

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

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

provided that the statement of position includes all of the information 

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

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

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

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

considered a withdrawal of previous allegations of nonnegotiability 

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

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

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

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

assertion that a proposal constitutes an appropriate arrangement within 

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

agency repeats an argument that the proposal is inconsistent with 

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

concession that the proposal is within the duty to bargain under 

section 7106(b)(3).

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

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

concerning the content of the statement of position, retains and 

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

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

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

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

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

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

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

    Comment is specifically requested on whether the proposed 

requirements are burdensome. If the requirements are viewed as 

burdensome, then commenters are requested to suggest alternatives to 

create a record sufficient for an exclusive representative to file a 

complete response and for the Authority to resolve the negotiability 

and/or bargaining dispute.

    Section 2424.33. All matters related to the exclusive 

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

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

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

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

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

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

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

be required provided that the response includes all of the information 

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

representative specifically support any allegations and citations 

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

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

    This section is not intended to require an exclusive representative 

to restate arguments and information that were included in its petition 

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

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

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

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

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

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

agency's assertion that a proposal would directly determine the 

conditions of employment of employees outside the bargaining unit will, 

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

that effect.

    Section 2424.34. This new section explains procedures through which 

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

disputes arising in connection with a negotiability and/or bargaining 

dispute.

    Section 2424.35. This section, which incorporates certain 

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

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

conference or provide timely, complete, and responsive information. 

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

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

    Section 2424.36. This section, which addresses additional 

submissions to the Authority, incorporates the requirements set out in 

the current Sec. 2424.8.

    Section 2424.37. This new section defines both the exclusive 

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

and support arguments. Subsection (a) specifies the exclusive 

representative's responsibilities. Absent good cause, the regulations 

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

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

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

responsibilities and, absent good cause, prohibits an agency from 

subsequently raising arguments in its statement of position or any 

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

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

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

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

    Section 2424.38. This section regarding the holding of a hearing 

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

Sec. 2424.9.

    Section 2424.39. This section is reserved.

Subpart E--Decision and Order

    Section 2424.40. Matters related to decisions and orders of the 

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

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

states that the Authority will expedite proceedings to the extent 

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

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

the Authority will take with respect to provisions disapproved on 

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

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

the determinations reached in individual cases. For example, the 

Authority order will note when bargaining dispute defenses have been 

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

severance of provisions or proposals.

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

section. No changes are made.

    Sections 2424.42--2424.49. These sections are reserved.

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

and Regulations

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

No changes are made.

    Sections 2424.51--2424.59. These sections are reserved.


[[Page 48134]]


Regulatory Flexibility Act Certification


    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 

U.S.C. 605(b), the Authority has determined that these regulations, as 

amended, will not have a significant impact on a substantial number of 

small entities, because this rule applies to federal employees, federal 

agencies, and labor organizations representing federal employees.


Unfunded Mandates Reform Act of 1995


    This rule will not result in the expenditure by state, local, and 

tribal governments, in the aggregate, or by the private sector, of 

$100,000,000 or more in any one year, and it will not significantly or 

uniquely affect small governments. Therefore, no actions were deemed 

necessary under the provisions of the Unfunded Mandates Reform Act of 

1995.


Small Business Regulatory Enforcement Fairness Act of 1996


    This action is not a major rule as defined by section 804 of the 

Small Business Regulatory Enforcement Fairness Act of 1996. This rule 

will not result in an annual effect on the economy of $100,000,000 or 

more; a major increase in costs or prices; or significant adverse 

effects on competition, employment, investment, productivity, 

innovation, or on the ability of United States-based companies to 

compete with foreign-based companies in domestic and export markets.


Paperwork Reduction Act of 1995


    The amended regulations contain no additional information 

collection or record keeping requirements under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501, et seq.


List of Subjects in 5 CFR Part 2424


    Administrative practice and procedure, Government employees, Labor 

management relations.

    For the reasons discussed in the preamble, the Federal Labor 

Relations Authority proposes to revise 5 CFR Part 2424 as follows:


PART 2424--NEGOTIABILITY PROCEEDINGS


Subpart A--Applicability of This Part and Definitions


Sec.

2424.1  Applicability of this part.

2424.2  Definitions.

2424.3-2424.9  [Reserved]


Subpart B--Prefiling Procedures in Cases Involving Proposals


2424.10  Collaboration and Alternative Dispute Resolution Program.

2424.11  Notice of intent to appeal.

2424.12  Prefiling conference.

2424.13  Requesting and giving allegations concerning the duty to 

bargain.

2424.14-2424.19  [Reserved]


Subpart C--Filing a Petition


2424.20  Who may file a petition.

2424.21  Time limits for filing a petition.

2424.22  Content of petition.

2424.23  Service of petition.

2424.24-2424.29  [Reserved]


Subpart D--Processing of a Petition for Review


2424.30  Postfiling conference in cases involving provisions.

2424.31  Procedure through which the petition for review will be 

resolved.

2424.32  Agency statement of position; time limits; content; 

service.

2424.33  Response of the exclusive representative; time limits; 

content; service.

2424.34  Resolution of disputed factual matters.

2424.35  Participation in conferences; incomplete or untimely 

submissions; Authority requests for supplemental information.

2424.36  Additional submissions to the Authority.

2424.37  Responsibilities to make, respond to, and support 

arguments.

2424.38  Hearing.

2424.39  [Reserved]


Subpart E--Decision and order.


2424.40  Authority decision and order.

2424.41  Compliance.

2424.42-2424.49  [Reserved]


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

and Regulations


2424.50  Illustrative criteria.

2424.51-2424.59  [Reserved]


    Authority: 5 U.S.C. 7134.


Subpart A--Applicability of This Part and Definitions



Sec. 2424.1  Applicability of this part.


    This part is applicable to all written allegations of 

nonnegotiability that are requested by exclusive representatives after 

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

by exclusive representatives in response to agency head disapprovals of 

contract provisions; and all petitions for review filed after January 

1, 1999 in response to written allegations of nonnegotiability that 

were requested prior to that date.



Sec. 2424.2  Definitions.


    In this part, the following definitions shall apply:

    (a) Bargaining dispute means a disagreement between an exclusive 

representative and an agency concerning whether, in the specific 

circumstances involved in a particular case, the parties are obligated 

to bargain over a proposal. A bargaining dispute may exist where there 

is no dispute about the legality of a proposal.

    (b) Collaboration and Alternative Dispute Resolution Program refers 

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

assists the parties in resolving disputes.

    (c) Negotiability dispute means a disagreement between an exclusive 

representative and an agency concerning the legality of a proposal or 

provision. A negotiability dispute exists when an agency contends that 

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

circumstances, and when an agency contends that a proposal is 

bargainable only at its election.

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

exclusive representative must file with the Authority prior to 

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

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

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

after:

    (1) An exclusive representative has requested a written allegation 

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

to a matter proposed to be bargained; or

    (2) An agency head has disapproved a provision.

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

been agreed to by the parties.

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

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

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

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

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

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

exclusive representative, on the head of the agency.

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

into separate parts having independent meaning in the event that 

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

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

to law.

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

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

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

not extend to a matter.


[[Page 48135]]


Sec. 2424.3-2424.9  [Reserved]


Subpart B--Prefiling Procedures in Cases Involving Proposals



Sec. 2424.10  Collaboration and Alternative Dispute Resolution Program.


    Where the parties experience difficulties in resolving disputes 

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

of the Collaboration and Alternative Dispute Resolution Program. This 

program will endeavor to assist the parties to resolve these disputes 

before they become cases, utilize alternative dispute resolution 

techniques, and develop collaborative and constructive relationships.



Sec. 2424.11  Notice of intent to appeal.


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

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

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

prior to requesting a written allegation concerning the duty to 

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

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

does not relieve the parties of any obligation to continue negotiations 

in an effort to resolve the dispute.

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

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

substantially similar format, and must briefly describe any proposal 

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

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

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

parties to the negotiations.

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

accord with Sec. 2424.2(h).



Sec. 2424.12  Prefiling conference.


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

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

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

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

conference, the parties will be provided the reasons for such 

determination. All parties to the dispute must participate in any 

prefiling conference and be prepared to discuss and clarify:

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

    (2) Any disputed factual issue(s);

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

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

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

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

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

this subchapter;

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

and Alternative Dispute Resolution program.

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

conference has been completed, the representative of the FLRA will 

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

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

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

conference.



Sec. 2424.13  Requesting and giving written allegations concerning the 

duty to bargain.


    (a) Relationship between prefiling conference and requests for 

written allegations concerning the duty to bargain. The exclusive 

representative may not request a written allegation concerning the duty 

to bargain until the prefiling conference has been completed. Provided 

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

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

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

may request a written allegation concerning the duty to bargain.

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

representative's request and effect service in accord with 

Sec. 2424.2(h).



Secs. 2424.14--2424.19  [Reserved]


Subpart C--Filing a Petition



Sec. 2424.20  Who may file a petition.


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

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

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

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

exclusive representative may file a petition without having complied 

with subpart B.



Sec. 2424.21  Time limits for filing a petition.


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

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

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

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

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

negotiability issue may be requested by an exclusive representative 

under this subpart without a prior written allegation concerning the 

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

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

bargaining representative at the negotiations has received a written 

request for such allegation. A written allegation concerning the duty 

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

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

filing period for the petition for review.



Sec. 2424.22  Content of petition.


    A petition for review must be filed on a form provided by the 

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

must be dated and contain the following:

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

provision, including any modifications resulting from the prefiling 

conference.

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

provision as a result of the prefiling conference, including:

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

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

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

situation; and

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

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

situation or circumstances that will enable the Authority to understand 

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

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

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

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

which particular portions of the proposal or provision. The exclusive 

representative must support its request for severance with an 

explanation of how the severed portions of the proposal or provision 

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

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

conference.

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

written allegation concerning the duty to bargain, any matter referred 

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

material.

    (f) Notification by the petitioning exclusive representative as to 

whether the dispute is also involved in an unfair


[[Page 48136]]


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

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

2470 of this subchapter.

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

supporting such suggestion.

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

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



Sec. 2424.23  Service of petition.


    The petition for review must be served in accord with 

Sec. 2424.2(h).



Sec. 2424.24--2424.29  [Reserved]


Subpart D--Processing of a Petition for Review



Sec. 2424.30  Postfiling conference in cases involving provisions.


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

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

appropriate, conduct one or more postfiling conferences either by 

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

any postfiling conference and be prepared to discuss and clarify:

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

    (2) Any disputed factual issue(s);

    (3) Any agency negotiability dispute objections to the 

provision(s);

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

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

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

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

this subchapter;

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

and Alternative Dispute Resolution program.

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

on determining that it will effectuate the purposes of the Federal 

Service Labor Management Relations Statute and this part, extend the 

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

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

conference has been completed, the representative of the FLRA will 

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

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

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

conference.



Sec. 2424.31  Procedure through which the petition for review dispute 

will be resolved.


    (a) Exclusive representative has pursued bargaining dispute in 

other proceedings. Where an exclusive representative files an unfair 

labor practice charge pursuant to part 2423 of this subchapter or 

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

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

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

exclusive representative to refile the petition for review after the 

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

unfair labor practice charge or grievance is resolved, the exclusive 

representative may refile the petition within 30 days of resolution of 

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

determine whether the resolution of the petition is still required.

    (b) Exclusive representative has not pursued bargaining dispute in 

other proceedings. Where an exclusive representative files only a 

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

follows:

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

agency has not asserted any bargaining dispute defenses, the Authority 

will resolve the petition by addressing the negotiability dispute 

objections under the procedures of this part.

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

agency has asserted bargaining dispute defenses, the Authority will 

either:

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

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

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

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

section;

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

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

agency; or,

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

any negotiability dispute objections and bargaining dispute defenses 

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



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

service.


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

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

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

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

a negotiability issue.

    (b) Contents. The agency's statement of position must be on a form 

provided by the Authority for that purpose, or in a substantially 

similar format. It must be dated and must:

    (1) Withdraw the allegation that the duty to bargain in good faith 

does not extend to the matter proposed to be negotiated; or

    (2) Set forth in full the agency's position on any matters relevant 

to the petition that it wishes the Authority to consider in reaching 

its decision, including a full and detailed statement of the reasons 

supporting any objections or assertions made concerning any proposal 

during the prefiling conference or provision during the postfiling 

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

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

collective bargaining agreement relied on. The statement also must cite 

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

objection or assertion, except that copies of published judicial 

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

must submit legal arguments and explanation in support of its 

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

matter. The statement of position must also include:

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

explanation of the meaning the agency attributes to the proposal or 

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

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

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

work situation, and the reasons for disagreeing with the exclusive 

representative's explanation of meaning;

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

particular circumstances the agency views the proposal or provision to 

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

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

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

explanation of how the agency asserts the proposal or provision is 

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

the reasons for disagreeing with the exclusive representative's 

explanation of meaning;.

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

for severance in any respect, the agency must explain with 

particularity why severance is not appropriate.

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

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

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

including all


[[Page 48137]]


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



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

content; service.


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

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

fifteen (15) days after the date the exclusive representative receives 

a copy of an agency's statement of position, the exclusive 

representative must file a full and detailed response.

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

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

exclusive representative's response is specifically limited to the 

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

state the exclusive representative's position including:

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

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

law. The exclusive representative must offer specific arguments and 

explanations in opposition to any agency argument, including the 

identification and explanation of exceptions to management rights, such 

as negotiable procedures and appropriate arrangements. The response 

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

rule, regulation, or provision of a collective bargaining agreement 

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

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

that copies of published judicial decisions and decisions of the 

Authority are not required;

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

allegations, that a proposal or provision is severable; and

    (3) Any allegation that the agency's rules or regulations violate 

applicable law, rule, regulation or appropriate authority outside the 

agency; that the rules or regulations were not issued by the agency or 

by any primary national subdivision of the agency, or otherwise are not 

applicable to bar negotiations under 5 U.S.C. 7117(a)(3); or that no 

compelling need exists for the rules or regulations to bar 

negotiations. All such allegations must be supported by argument, 

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

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

the response to an agency statement of position exceeds 25 double-

spaced pages in length.

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

including all attachments thereto must be served in accord with 

Sec. 2424.2(h).



Sec. 2424.34  Resolution of disputed factual matters.


    In resolving necessary factual matters in a negotiability or 

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

appropriate:

    (a) Request specific documentary evidence;

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

questions in the form of interrogatories;

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

before a hearing officer designated by the Authority; or

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

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

with Sec. 2424.38.



Sec. 2424.35  Participation in conferences; incomplete or untimely 

submissions; Authority requests for supplemental information.


    Where a party fails to participate in a prefiling conference, 

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

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

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

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

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

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

responsive information under this part, the Authority may as 

appropriate and in its discretion:

    (a) Refuse to consider certain exclusive representative arguments 

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

without prejudice to refile;

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

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

bargain, with or without conditions;

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

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

hearing for the purpose of obtaining the necessary or requested 

information;

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

claims and arguments that rely on information not provided;

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

deemed appropriate.



Sec. 2424.36  Additional submissions to the Authority.


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

whether supplemental or responsive in nature, other than those 

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

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

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

with this part.



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

arguments.


    (a) Responsibilities of the exclusive representative. In the 

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

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

explaining fully why the proposals or provisions under consideration 

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

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

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

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

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

of position may not be raised in the response.

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

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

fully why the proposals or provisions under consideration are outside 

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

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

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

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

raised by the exclusive representative will, where appropriate, be 

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

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

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

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



Sec. 2424.38  Hearing.


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

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

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

include the General Counsel as a party.



Sec. 2424.39  [Reserved]


Subpart E--Decision and Order



Sec. 2424.40  Authority decision and order.


    (a) Issuance. Subject to the requirements of this part, the 

Authority shall expedite proceedings under this part to the extent 

practicable and shall issue to the exclusive representative and


[[Page 48138]]


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

reasons therefor at the earliest practicable date.

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

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

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

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

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

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

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

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

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

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

finds that the duty to bargain extends to the negotiability dispute 

aspects of the proposal, but there are unresolved bargaining dispute 

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

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

bargain on this negotiability dispute in the event its bargaining 

dispute defenses are rejected.

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

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

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

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

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

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

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

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

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

Authority finds that an agreement provision, or any severable part 

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

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

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

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



Sec. 2424.41  Compliance.


    The agency or exclusive representative may report to the 

appropriate Regional Director within a specified period the failure to 

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

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

bargain concerning the disputed matter or that the agency must rescind 

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

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

deems necessary, including enforcement under 5 U.S.C. 7123(b).



Secs. 2424.42-2424.49  [Reserved]


Subpart F--Criteria for Determining Compelling Need for Agency 

Rules and Regulations



Sec. 2424.50  Illustrative criteria.


    A compelling need exists for an agency rule or regulation 

concerning any condition of employment when the agency demonstrates 

that the rule or regulation meets one or more of the following 

illustrative criteria:

    (a) The rule or regulation is essential, as distinguished from 

helpful or desirable, to the accomplishment of the mission or the 

execution of functions of the agency or primary national subdivision in 

a manner which is consistent with the requirements of an effective and 

efficient government.

    (b) The rule or regulation is necessary to ensure the maintenance 

of basic merit principles.

    (c) The rule or regulation implements a mandate to the agency or 

primary national subdivision under law or other outside authority, 

which implementation is essentially nondiscretionary in nature.



Secs. 2424.51--2424.59  [Reserved]


    Dated: September 3, 1998.

Solly Thomas,

Executive Director, Federal Labor Relations Authority.

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

BILLING CODE 6727-01-P