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The decision of the Authority follows:
8 FLRA No. 25
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, MEAT GRADERS COUNCIL,
AFL-CIO
Union
and
DEPARTMENT OF AGRICULTURE,
FOOD SAFETY AND QUALITY SERVICE,
MEAT GRADING BRANCH,
WASHINGTON, D.C.
Agency
Case No. 0-NG-51
DECISION AND ORDER OF NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D)
AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) (5 U.S.C. 7101-7135). THE ISSUE PRESENTED IS THE NEGOTIABILITY
OF SIX UNION PROPOSALS. /1/ IN DECIDING THAT SOME OF THE DISPUTED
PROPOSALS IN THIS CASE ARE WITHIN THE DUTY TO BARGAIN, THE AUTHORITY
MAKES NO JUDGMENT AS TO THEIR MERITS.
UNION PROPOSAL I
SECTION 9.6 - IN ORDER TO REDUCE THE EXCESSIVE MENTAL STRESS AND
PHYSICAL INJURY OF
EMPLOYEES WORKING IN FRONT OF CONVEYOR CHAINS WHICH EXCEED 180 BEEF
PER HOUR, THE EMPLOYER,
FOR SAFETY AND WELL-BEING OF THE EMPLOYEE, WILL HAVE THE GRADER ONLY
EVALUATE FOR GRADE EVERY
SECOND BEEF THAT PASSES IN FRONT ON THE CHAIN.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL I, AS ALLEGED BY THE AGENCY IS
INCONSISTENT WITH SECTION 7106(A) OF THE STATUTE. /2/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL I VIOLATES THE AGENCY'S RIGHTS
TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106()(2)(A) AND (B)
OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE PETITION FOR REVIEW AS TO UNION PROPOSAL I BE, AND IT HEREBY
IS, DISMISSED.
REASONS: THE RECORD BEFORE THE AUTHORITY INDICATES THAT THE PROPOSAL
WOULD APPLY TO MEAT GRADERS PERFORMING WORK IN PRIVATE SECTOR MEAT
PACKING PLANTS. MEAT GRADING IS A REIMBURSABLE FUNCTION WHICH THE AGENCY
IS REQUIRED BY LAW, 7 U.S.C. 1621 AND 1622, TO MAKE AVAILABLE TO PRIVATE
INDUSTRY FOR USE ON A VOLUNTARY BASIS. NORMALLY, THE OPERATION OF MEAT
PACKING PLANTS INVOLVES THE USE OF CONVEYOR CHAINS TO TRANSPORT THE BEEF
FOR GRADING, THE SPEED OF WHICH IS CONTROLLED BY THE PRIVATE SECTOR
PLANT MANAGEMENT. THE AGENCY, HOWEVER, DETERMINES THE NUMBER OF MEAT
GRADERS NECESSARY TO STAFF ANY GIVEN PLANT OPERATION.
IN THIS CONNECTION, UNION PROPOSAL I EXPLICITLY PROVIDES THAT,
WHENEVER THE SPEED OF THE CONVEYOR CHAIN, AS SET BY THE MANAGEMENT OF
THE PLANT, EXCEEDS 180 BEEF CARCASSES PER HOUR, A MEAT GRADER ASSIGNED
TO THAT CHAIN WILL NOT BE REQUIRED BY AGENCY MANAGEMENT TO GRADE EVERY
BEEF BUT WILL INSTEAD GRADE EVERY SECOND ONE. THUS, THE PROPOSAL WOULD
PRECLUDE THE AGENCY FROM DETERMINING E.G., THAT AN EMPLOYEE MUST GRADE
EACH BEEF ON THE CONVEYOR CHAIN. THE AGENCY CONTENDS THAT BY THUS
PRESCRIBING THE AMOUNT OF WORK WHICH CAN BE REQUIRED OF AN EMPLOYEE, THE
PROPOSAL IS INCONSISTENT WITH ITS RIGHTS UNDER SECTION 7106(A) OF THE
STATUTE.
THE RIGHT TO DETERMINE THE QUANTITY OF WORK TO BE PERFORMED BY
EMPLOYEES, I.E., THE LEVEL OF OUTPUT TO BE REQUIRED, IS ENCOMPASSED
WITHIN MANAGEMENT'S STATUTORY RIGHTS TO DIRECT EMPLOYEES AND ASSIGN
WORK. NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), APPEAL DOCKETED SUB
NOM. NATIONAL TREASURY EMPLOYEES UNION V. FEDERAL LABOR RELATIONS
AUTHORITY, NO. 80-1895 (D. C. CIR. AUGUST 4, 1980). IN THAT CASE, THE
PROPOSAL AT ISSUE PRESCRIBED THE AMOUNT OF WORK EMPLOYEES MUST PRODUCE
IN ORDER TO RETAIN THEIR JOBS. THE AUTHORITY HELD THAT BY THUS
ESTABLISHING THE OUTPUT WHICH THE AGENCY COULD REQUIRE OF EMPLOYEES IN
SUCH CIRCUMSTANCES, THE PROPOSAL DIRECTLY INTERFERED WITH THE RIGHTS OF
MANAGEMENT TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)
OF THE STATUTE. SIMILARLY, BY PRESCRIBING HEREIN THE MAXIMUM AMOUNT OF
WORK AN EMPLOYEE CAN BE REQUIRED TO PERFORM WHEN THE CONVEYOR CHAIN
EXCEEDS 180 CARCASSES PER HOUR, UNION PROPOSAL I ESTABLISHES A
LIMITATION ON THE LEVEL OF OUTPUT WHICH THE AGENCY CAN REQUIRE OF AN
EMPLOYEE. THEREFORE, FOR THE REASONS SET FORTH IN BUREAU OF THE PUBLIC
DEBT, UNION PROPOSAL I IS OUTSIDE THE DUTY TO BARGAIN.
UNION PROPOSAL II
SECTION 9.7 - THE EMPLOYER AGREES TO FURNISH PROTECTIVE CLOTHING SUCH
AS A COOLER COAT AND
GLOVES TO THE EMPLOYEE.
UNION PROPOSAL III
SECTION 9.8 - THE EMPLOYER WILL PROVIDE FROCKS FOR EMPLOYEES.
QUESTION BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER UNION PROPOSAL II, AS ALLEGED BY THE
AGENCY, IS INCONSISTENT WITH LAW (29 U.S.C. 668(A)), AND GOVERNMENT-WIDE
REGULATION (29 CFR 1910.132); AND WHETHER UNION PROPOSAL III, AS
ALLEGED BY THE AGENCY, IS INCONSISTENT WITH LAW (5 U.S.C. 5901), AND
GOVERNMENT-WIDE REGULATION (OMB CIRCULAR A-30, REVISED, AUGUST 20,
1966).
CONCLUSION AND ORDER: UNION PROPOSALS II AND III ARE CONSISTENT WITH
LAW AND GOVERNMENT-WIDE REGULATION. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE AGENCY, UPON REQUEST (OR AS OTHERWISE AGREED TO
BY THE PARTIES), BARGAIN CONCERNING THE PROPOSALS.
REASONS: WITH RESPECT TO UNION PROPOSAL II, THE STATUTORY /3/ AND
REGULATORY /4/ PROVISIONS CITED BY THE AGENCY PROVIDE, IN ESSENCE, THAT
THE HEAD OF AN AGENCY SHALL, AFTER CONSULTATION WITH EMPLOYEE
REPRESENTATIVES, SUPPLY EMPLOYEES WITH PROTECTIVE CLOTHING WHEREVER IT
IS NECESSARY TO PROTECT THEM FROM HAZARDS OF THE WORK ENVIRONMENT.
HENCE, THE STATUTORY AND REGULATORY PROVISIONS CITED BY THE AGENCY LEAVE
THE DECISION AS TO WHETHER TO PROVIDE PROTECTIVE CLOTHING TO THE
DISCRETION OF THE AGENCY.
IN NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE
SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118(1980), THE AUTHORITY HELD
NEGOTIABLE A PROPOSAL WHICH REQUIRED THE AGENCY TO RETAIN PARKING SPACES
FOR EMPLOYEES' VEHICLES, WHICH SPACES WERE CONTROLLED BY THE GENERAL
SERVICES ADMINISTRATION. CONTRARY TO THE AGENCY'S CONTENTIONS, THE
AUTHORITY FOUND THAT THE DISPUTED MATTER WAS WITHIN THE DISCRETION OF
THE AGENCY UNDER THE FEDERAL PROPERTY MANAGEMENT REGULATIONS AND THAT
NOTHING IN THOSE REGULATIONS OR UNDERLYING STATUTORY PROVISIONS
SPECIFICALLY PRECLUDED THE AGENCY FROM EXERCISING THAT DISCRETION
THROUGH NEGOTIATIONS.
THE RELEVANT CIRCUMSTANCES OF THE INSTANT CASE ARE NOT MATERIALLY
DIFFERENT FROM THOSE OF THE NEW ORLEANS DISTRICT CASE. ASSUMING,
WITHOUT DECIDING, THAT 29 CRF 1910.132 CONSTITUTES A GOVERNMENT-WIDE
REGULATION WITHIN THE MEANING OF SECTION 7117 OF THE STATUTE, /5/ THE
AGENCY NEVERTHELESS HAS CITED NO PROVISION OF THAT REGULATION, OR OF
LAW, WHICH WOULD PRECLUDE THE AGENCY FROM EXERCISING THROUGH
NEGOTIATIONS ITS DISCRETION TO SUPPLY PROTECTIVE CLOTHING TO EMPLOYEES.
THUS, FOR THE REASONS MORE FULLY SET FORTH IN THE NEW ORLEANS DISTRICT
CASE, SUPRA, THE AUTHORITY FINDS UNION PROPOSAL II IS WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
TURNING TO UNION PROPOSAL III, THE STATUTORY /6/ AND REGULATORY /7/
PROVISIONS CITED BY THE AGENCY AS A BAR TO NEGOTIATIONS PROVIDE THAT AN
AGENCY WILL SUPPLY UNIFORMS TO EMPLOYEES WHENEVER THE AGENCY HEAD
DETERMINES THAT THE WEARING OF A UNIFORM IS A REQUIREMENT OF AN
EMPLOYEE'S JOB AND THAT THE BEST INTERESTS OF THE GOVERNMENT ARE SERVED
BY SUPPLYING SUCH UNIFORMS. THAT IS, ONCE AGAIN, THE STATUTORY AND
REGULATORY PROVISIONS HERE INVOLVED DO NOT PRECLUDE AN AGENCY FROM
DETERMINING THAT WEARING A UNIFORM IS A REQUIREMENT OF A JOB AND
PROVIDING EMPLOYEES WITH FROCKS AS THE UNION PROPOSES, BUT LEAVE THE
MATTER TO THE DISCRETION OF THE AGENCY HEAD. /8/ . THUS, EVEN ASSUMING
WITHOUT DECIDING, THAT THE PROVISIONS OF THE OMB CIRCULAR RELIED ON BY
THE AGENCY CONSTITUTE GOVERNMENT-WIDE REGULATIONS WITHIN THE MEANING OF
SECTION 7117 OF THE STATUTE, UNION PROPOSAL III IS WITHIN THE AGENCY'S
DUTY TO BARGAIN UNDER THE STATUTE. /9/
UNION PROPOSAL IV
SECTION 9.12 - TO COMPENSATE MEAT GRADERS FOR WORKING IN FRIGID
CONDITIONS, PREMIUM PAY
DIFFERENTIAL WILL BE PAID.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PETITION FOR REVIEW AS TO UNION PROPOSAL
IV CONCERNS MATTERS MORE APPROPRIATELY RESOLVED THROUGH THE
CLASSIFICATION APPEAL PROCESS AS, IN EFFECT, ALLEGED BY THE AGENCY AND,
THUS, IS NOT PROPERLY BEFORE THE AUTHORITY.
OPINION
CONCLUSION AND ORDER: THE PETITION FOR REVIEW AS TO UNION PROPOSAL
IV DOES NOT MEET THE CONDITIONS FOR REVIEW OF A NEGOTIABILITY QUESTION
BEFORE THE AUTHORITY. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE PETITION FOR REVIEW AS TO UNION PROPOSAL IV BE, AND IT HEREBY
IS, DISMISSED.
REASONS: UNION PROPOSAL IV WOULD REQUIRE THE AGENCY TO PAY MEAT
GRADERS AN ENVIRONMENTAL HAZARD DIFFERENTIAL BECAUSE OF THE FRIGID
CONDITIONS UNDER WHICH THEY WORK. THE AGENCY ARGUES, AND THE UNION
DISPUTES, THAT WORKING IN FRIGID CONDITIONS WAS TAKEN INTO ACCOUNT IN
THE CLASSIFICATION OF MEAT GRADER POSITIONS AND, THEREFORE, UNDER 5 CFR
550.904, /10/ THE AGENCY IS PROHIBITED FROM PAYING AN ENVIRONMENTAL
HAZARD DIFFERENTIAL FOR SUCH DUTIES, AS THE PROPOSAL WOULD REQUIRE.
IN THIS REGARD, THE PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM THE
PROPOSAL AT ISSUE IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 862
AND TOOELE ARMY DEPOT, TOOELE, UTAH, 3 FLRA NO. 67(1980), WHICH REQUIRED
THE PAYMENT OF AN ENVIRONMENTAL HAZARD DIFFERENTIAL TO CERTAIN SPECIFIED
CATEGORIES OF EMPLOYEES. THE AUTHORITY DECIDED THE PROPOSAL IN THAT
CASE RAISED CLASSIFICATION ISSUES (IN PART, WHETHER THE ALLEGED HAZARDS
HAD BEEN TAKEN INTO ACCOUNT IN CLASSIFYING THE SPECIFIED POSITIONS),
WHICH WERE MATTERS THAT MUST BE RESOLVED THROUGH THE CLASSIFICATION
APPEALS PROCESS AS A CONDITION PRECEDENT TO DISPOSITION OF ANY
NEGOTIABILITY APPEAL. FOR THE REASONS SET FORTH IN GREATER DETAIL IN
TOOELE ARMY DEPOT, THE AUTHORITY FINDS THAT THE UNION'S APPEAL HEREIN AS
TO UNION PROPOSAL IV, WHICH CONCERNS MATTERS RELATED TO THE
CLASSIFICATION OF MEAT GRADERS' POSITIONS, WAS PREMATURELY FILED. HENCE,
THE APPEAL MUST BE DISMISSED WITHOUT PREJUDICE TO RENEWAL BY THE UNION
OF ITS CONTENTION THAT THE MATTER HERE IN DISPUTE IS NEGOTIABLE IF IT IS
DETERMINED, THROUGH CLASSIFICATIONS APPEALS PROCEDURES, THAT THE ALLEGED
HAZARDS HAVE NOT BEEN TAKEN INTO ACCOUNT IN THE CLASSIFICATION OF THE
POSITION. IN THAT EVENT, THE PROPOSAL WOULD NOT INVOLVE MATTERS
RELATING TO THE CLASSIFICATION OF POSITIONS, WHICH ARE NOT CONDITIONS OF
EMPLOYMENT UNDER SECTION 7103(A)(14)(B) OF THE STATUTE. /11/
UNION PROPOSAL V
SECTION 12.1 - THE EMPLOYER AGREES TO NOTIFY THE UNION OF ANY
IMPENDING REDUCTION-IN-FORCE
OR REORGANIZATION AT LEAST 120 DAYS IN ADVANCE OF NOTIFICATION TO
EMPLOYEES WITH SUFFICIENT
INFORMATION IN ORDER TO ALLOW THE UNION TIME TO NEGOTIATE THE IMPACT
AND/OR PROCEDURE. THE
UNION SHALL NOTIFY THE EMPLOYER WITHIN FIFTEEN (15) DAYS AS TO
WHETHER THEY WISH TO NEGOTIATE
THE IMPACT. THE EMPLOYER AGREES TO MEET WITHIN 15 DAYS AFTER SUCH
REQUEST TO NEGOTIATE THE
IMPACT AND/OR PROCEDURES.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL V, AS, IN EFFECT, ALLEGED BY
THE AGENCY, IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT
WITH AN AGENCY REGULATION FOR WHICH A COMPELLING NEED EXISTS UNDER
SECTION 7117(A)(2) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE AGENCY HAS FILED TO SUPPORT ITS ALLEGATION
THAT UNION PROPOSAL V IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
7117(A)(2) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN ON THE PROPOSAL.
REASONS: THE UNION STATES, AND THE AGENCY IMPLICITLY ACKNOWLEDGES IN
ITS STATEMENT OF POSITION, THAT THE AGENCY ALLEGED UNION PROPOSAL V IS
OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) IN RELIANCE UPON AN
AGENCY REGULATION FOR WHICH A COMPELLING NEED EXISTS. THE AGENCY
CONTENDS, HOWEVER, THAT THE UNION'S APPEAL AS TO THE INSTANT PROPOSAL IS
ALSO PREMATURE UNDER THE RULES AND REGULATIONS OF THE FEDERAL LABOR
RELATIONS COUNCIL, WHICH IT MAINTAINS WERE CONTROLLING AT THE TIME THE
APPEAL AROSE, SINCE THE UNION DID NOT REQUEST AN EXCEPTION TO THE
REGULATION OR REFER THE MATTER TO THE AGENCY HEAD FOR A DETERMINATION AS
TO THE COMPELLING NEED FOR THE REGULATION. /12/ THE AGENCY POSITION
CANNOT BE SUSTAINED.
ON JULY 30, 1979, THE AUTHORITY ISSUED INTERIM REGULATIONS GOVERNING
APPEALS RELATING, AMONG OTHER THINGS, TO ISSUES OF COMPELLING NEED FOR
AGENCY REGULATIONS (44 F.R. 44766). BETWEEN THE EFFECTIVE DATE OF THE
STATUTE, JANUARY 11, 1979, AND THE EFFECTIVE DATE OF THE INTERIM
REGULATIONS, THE RULES OF THE FEDERAL LABOR RELATIONS COUNCIL REMAINED
IN EFFECT UNLESS, AS PROVIDED IN SECTION 7135(B) OF THE STATUTE,
SUPERSEDED BY SPECIFIC PROVISIONS OF THE STATUTE. /13/
IN THIS REGARD, VARIOUS PROVISIONS OF THE STATUTE SUPERSEDED SECTION
2411.22(B) OF THE COUNCIL'S RULES AS FOLLOWS: SECTION 7117(A)(2) OF THE
STATUTE PROVIDES THAT THE DUTY TO BARGAIN EXTENDS TO MATTERS WHICH ARE
THE SUBJECT OF ANY AGENCY RULE OR REGULATION ONLY IF NO COMPELLING NEED
EXISTS FOR THE REGULATION AS DETERMINED BY THE AUTHORITY. /14/ THE
JURISDICTION OF THE AUTHORITY TO RESOLVE ISSUES AS TO COMPELLING NEED IS
SET FORTH IN SECTION 7105(A)(2)(D) /15/ AND SECTION 7117(B) OF THE
STATUTE. /16/ SPECIFICALLY, SECTION 7117(B)(2)(A), BY PROVIDING FOR AN
AGENCY AT ITS OWN INITIATIVE TO NOTIFY THE AUTHORITY IN WRITING THAT NO
COMPELLING NEED EXISTS FOR A REGULATION APPEALED BY A UNION TO THE
AUTHORITY FOR A DETERMINATION, HAS SUPERSEDED SECTION 2411.22(B) OF THE
COUNCIL'S RULES WHICH UNDER LIKE CIRCUMSTANCES REQUIRED THE UNION TO
REFER THE MATTER TO THE AGENCY HEAD AND TO REQUEST AN EXCEPTION TO ANY
REGULATION CITED AS A BAR TO NEGOTIATION. THEREFORE, CONTRARY TO THE
AGENCY'S POSITION HEREIN, SECTION 2411.22(B) OF THE COUNCIL'S RULES WAS
NOT IN EFFECT AT THE TIME THE APPEAL IN THE INSTANT CASE WAS FILED AND
THE ISSUE OF THE COMPELLING NEED FOR THE AGENCY'S REGULATION IS PROPERLY
BEFORE THE AUTHORITY.
UNDER THE AUTHORITY'S DECISION IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1928 AND DEPARTMENT OF THE NAVY, NAVAL AIR
DEVELOPMENT CENTER, WARMINSTER, PENNSYLVANIA, 2 FLRA 450(1980), THE
AGENCY BEARS THE BURDEN OF COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR
ITS ASSERTION OF COMPELLING NEED. IN PARTICULAR, THE AUTHORITY STATED
AS FOLLOWS (AT 454 - 455 OF THE DECISION):
(I)N A PROCEEDING BEFORE THE AUTHORITY SUCH AS THE INSTANT CASE
INVOLVING AN ALLEGATION BY
AN AGENCY THAT A UNION PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
UNDER SECTION 7117(A)(2) OF
THE STATUTE BECAUSE OF AN INTERNAL AGENCY REGULATION RAISED
SPECIFICALLY FOR THE FIRST TIME IN
THE AGENCY'S STATEMENT OF POSITION, THE AGENCY BEARS THE BURDEN OF
COMING FORWARD WITH
AFFIRMATIVE SUPPORT FOR ITS ASSERTION THAT THE REGULATION IN QUESTION
BARS NEGOTIATIONS
BECAUSE, IMPLICITLY, A COMPELLING NEED EXISTS FOR THE REGULATION.
THIS IS CONSISTENT WITH THE
REQUIREMENT IN THE AUTHORITY'S RULES CONCERNING THE REVIEW OF
NEGOTIABILITY ISSUES THAT AN
AGENCY'S STATEMENT OF POSITION FILED WITH THE AUTHORITY SHALL SET
FORTH "IN FULL ITS POSITION
ON ANY MATTERS RELEVANT TO THE PETITION WHICH IT WISHES THE AUTHORITY
TO CONSIDER IN REACHING
ITS DECISION, INCLUDING A FULL AND DETAILED STATEMENT OF ITS REASONS
SUPPORTING THE
ALLEGATION." FURTHERMORE, WITH REGARD TO ITS OWN REGULATIONS, THE
AGENCY OBVIOUSLY SHOULD
HAVE THE GREATEST FAMILIARITY WITH THE CIRCUMSTANCES UNDER WHICH THE
PARTICULAR REGULATION
INVOLVED WAS DEVELOPED AND ISSUED AND THE PURPOSE IT WAS INTENDED TO
SERVE. CONSEQUENTLY,
SINCE THE AGENCY IS RELYING ON THE REGULATION TO BAR NEGOTIATIONS ON
AN OTHERWISE NEGOTIABLE
PROPOSAL, THE AGENCY PROPERLY IS REQUIRED TO ADDUCE SUCH RELEVANT
CIRCUMSTANCES IN THE
STATEMENT OF ITS POSITION BEFORE THE AUTHORITY.
IN THIS CASE, HOWEVER, THE AGENCY HAS NOT SUPPLIED ANY EVIDENCE TO
SUPPORT ITS ALLEGATION OF COMPELLING NEED; RATHER, THE AGENCY
APPARENTLY RELIES ONLY ON ITS CONTENTIONS AS TO THE APPLICABILITY OF THE
COUNCIL'S RULES. THEREFORE, THE AGENCY HAS FAILED ADEQUATELY TO SUPPORT
ITS ALLEGATION THAT UNION PROPOSAL V IS OUTSIDE THE DUTY TO BARGAIN
UNDER SECTION 7117(A)(2) OF THE STATUTE BECAUSE IT CONFLICTS WITH AN
INTERNAL AGENCY REGULATION FOR WHICH A COMPELLING NEED EXISTS.
UNION PROPOSAL VI
SECTION 26.1 - IN THE INTEREST OF THE GOVERNMENT AND EMPLOYEE, A
CHANGE IS TO BE
IMPLEMENTED THAT WILL ALLOW MILEAGE PAYMENTS TO CERTAIN EMPLOYEES
PORTAL TO PORTAL WHETHER
CARRYING GOVERNMENT EQUIPMENT OR NOT, AND WHETHER WORK IS PERFORMED
AT ONE OR MORE DUTY SITES
A DAY OR NOT. THESE MILEAGE PAYMENTS ARE TO BE MADE ONLY TO THE
ABOVE-MENTIONED EMPLOYEES
THAT ARE ROTATED IN THEIR DUTY ASSIGNMENTS, AND TO EMPLOYEES WHO
NORMALLY WORK AT ONE DUTY
SITE BUT OCCASIONALLY ARE EXPECTED TO REPORT TO OTHER DUTY LOCATIONS
DURING THE SAME DAY.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL VI IS INCONSISTENT WITH LAW
AND GOVERNMENT-WIDE REGULATION UNDER SECTION 711(A)(1) OF THE STATUTE
OR, AS ALLEGED BY THE AGENCY, IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT
IS INCONSISTENT WITH AN AGENCY REGULATION FOR WHICH A COMPELLING NEED
EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL VI IS CONSISTENT WITH LAW AND
GOVERNMENT-WIDE REGULATION UNDER SECTION 7117(A) OF THE STATUTE AND THE
AGENCY HAS FAILED TO SUPPORT ITS ALLEGATION THAT THE PROPOSAL IS OUTSIDE
THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY UPON
REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
THE PROPOSAL.
REASONS: UNION PROPOSAL VI CONFORMS TO THE GUIDANCE SET FORTH IN THE
COMPTROLLER GENERAL'S DECISION IN MATTER OF DEPARTMENT OF AGRICULTURE
MEAT GRADERS - MILEAGE, B-131810, JANUARY 3, 1980. /17/ IN THAT
DECISION, THE COMPTROLLER GENERAL, RESPONDING TO A REQUEST FOR A RULING
ON "PORTAL TO PORTAL" MILEAGE PAYMENTS TO MEAT GRADERS WHEN EQUIPMENT
AND SUPPLIES ARE TRANSPORTED IN SITUATIONS WHERE WORK IS PERFORMED AT
ONLY ONE LOCATION, STATED AS FOLLOWS (AT 8 OF THE DECISION):
(O)THER THAN ALLOWING MILEAGE FOR TRAVEL FROM HIS RESIDENCE TO
OFFICIAL HEADQUARTERS, AN
EMPLOYEE'S ENTITLEMENT TO MILEAGE FOR TRAVEL, WHETHER TO ONE OR MORE
DUTY SITES IN A DAY AND
WHETHER EQUIPMENT IS TRANSPORTED OR NOT, IS GOVERNED BY SUCH
REGULATIONS AS AN AGENCY
PRESCRIBES, GIVING DUE CONSIDERATION TO THE INTERESTS OF THE
GOVERNMENT AND THE EMPLOYEE.
THEREFORE, THE DEPARTMENT OF AGRICULTURE HAS AUTHORITY TO PAY MILEAGE
FOR HOME TO WORK AND
RETURN TRAVEL WHERE EQUIPMENT IS TRANSPORTED AND WHERE THE TRAVEL IS
TO ONLY ONE DUTY SITE
WHICH IS NOT THE EMPLOYEE'S HEADQUARTERS. WHETHER THE DEPARTMENT
MUST PAY MILEAGE FOR SUCH
TRAVEL, HOWEVER DEPENDS UPON WHAT THE ACTUAL POLICY OF THE DEPARTMENT
IS AT THE TIME THE
TRAVEL IS PERFORMED. THE RECORD SHOWS THAT THE DEPARTMENT DID NOT IN
FACT HAVE A POLICY OF
PAYING MILEAGE TO EMPLOYEES TRAVELING TO ONLY ONE WORKSITE DURING THE
PERIOD IN
QUESTION. RATHER, MILEAGE APPEARS TO HAVE BEEN LIMITED TO CASES
WHERE EMPLOYEES TRAVELED TO
TWO OR MORE DUTY SITES REGARDLESS OF WHETHER THEY CARRIED EQUIPMENT
AND SUPPLIES. THESE
POLICIES BIND THE DEPARTMENT OF AGRICULTURE AS TO TRAVEL PERFORMED IN
THE PAST. THE
DEPARTMENT, HOWEVER, MAY AMEND ITS POLICY IN THE FUTURE AND AUTHORIZE
MILEAGE PAYMENTS
CONSISTENT WITH THE ABOVE.
THUS, THE DECISION OF THE COMPTROLLER GENERAL RECOGNIZED THAT THE
AGENCY HAS DISCRETION UNDER APPLICABLE LAW AS TO THE PAYMENT OF MILEAGE
FROM RESIDENCE TO DUTY STATION AND RETURN, I.E., "PORTAL TO PORTAL,"
WITHOUT REGARD TO WHETHER AN EMPLOYEE TRANSPORTS GOVERNMENT EQUIPMENT
OR
WHETHER AN EMPLOYEE TRAVELS TO ONLY ONE DUTY STATION AS LONG AS THAT
DUTY STATION IS NOT THE EMPLOYEE'S HEADQUARTERS.
UNION PROPOSAL VI IS CLEARLY CONCERNED WITH THE VERY CIRCUMSTANCES
DISCUSSED IN THE QUOTED DECISION OF THE COMPTROLLER GENERAL. FURTHER,
THERE IS NOTHING IN THE RECORD OF THIS CASE TO SUGGEST THAT THE PROPOSAL
IS INTENDED TO BE IMPLEMENTED IN A MANNER WHICH IS INCONSISTENT WITH LAW
AND REGULATION, I.E., TO AUTHORIZE PAYMENT OF MILEAGE TO COVER TRAVEL
FROM EMPLOYEES' RESIDENCES TO THEIR OFFICIAL HEADQUARTERS. THEREFORE,
SINCE THE AGENCY HAS DISCRETION CONCERNING SUCH MILEAGE PAYMENTS, AND
THE AGENCY HAS NOT NOT ADVERTED TO NOR DOES RESEARCH REVEAL ANY LAW OR
GOVERNMENT-MADE REGULATION WHICH WOULD PRECLUDE THE EXERCISE OF SUCH
DISCRETION THROUGH NEGOTIATION OF THE UNION'S PROPOSAL, THE PROPOSAL IS
CONSISTENT WITH LAW AND GOVERNMENT-WIDE REGULATION AND, IN THIS REGARD,
IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF THE STATUTE.
SEE NEW ORLEANS DISTRICT, SUPRA.
MOREOVER, AS TO THE AGENCY'S ALLEGATION THAT UNION PROPOSAL VI IS
BARRED FROM NEGOTIATION BY AN AGENCY REGULATION FOR WHICH A COMPELLING
NEED EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE, FOR WHICH THE
REASONS SET FORTH IN CONNECTION WITH DISPOSITION OF UNION PROPOSAL V,
SUPRA, THE AGENCY HAS FAILED TO SUPPORT ITS ALLEGATION AND, THUS, THE
INSTANT PROPOSAL IS, IN THIS REGARD, WITHIN THE DUTY TO BARGAIN. /18/
ISSUED, WASHINGTON, D.C., FEBRUARY 11, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ THE UNION'S PETITION FOR REVIEW INCLUDED AN ADDITIONAL PROPOSAL
ENTITLED SECTION 10.1. HOWEVER, IN ITS STATEMENT OF POSITION, THE
AGENCY INDICATED THAT IT DID NOT CONSIDER THE PROPOSAL NONNEGOTIABLE.
THEREFORE, THE DISPUTE BETWEEN THE PARTIES AS TO THIS PROPOSAL HAS BEEN
RENDERED MOOT, AND IT WILL NOT BE FURTHER CONSIDERED HEREIN.
/2/ SECTION 7106(A) OF THE STATUTE (5 U.S.C. 7106(A)) PROVIDES, IN
RELEVANT PART, AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
* * * *
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)
/3/ 29 U.S.C. 668(A) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 668. PROGRAMS OF FEDERAL AGENCIES
(A) IT SHALL BE THE RESPONSIBILITY OF THE HEAD OF EACH FEDERAL AGENCY
TO ESTABLISH AND
MAINTAIN AN EFFECTIVE AND COMPREHENSIVE OCCUPATIONAL SAFETY AND
HEALTH PROGRAM WHICH IS
CONSISTENT WITH THE STANDARDS PROMULGATED UNDER SECTION 655 OF THIS
TITLE. THE HEAD OF EACH
AGENCY SHALL (AFTER CONSULTATION WITH REPRESENTATIVES OF THE
EMPLOYEES THEREOF)--
. . . .
(2) ACQUIRE, MAINTAIN, AND REQUIRE THE USE OF SAFETY EQUIPMENT,
PERSONAL PROTECTIVE
EQUIPMENT, AND DEVICES REASONABLY NECESSARY TO PROTECT EMPLOYEES(.)
/4/ 29 CFR 1910.132 PROVIDES AS FOLLOWS:
SEC. 1910.132 GENERAL REQUIREMENTS
(A) APPLICATION. PROTECTIVE EQUIPMENT, INCLUDING PERSONAL PROTECTIVE
EQUIPMENT FOR EYES,
FACE, HEAD, AND EXTREMITIES, PROTECTIVE CLOTHING, RESPIRATORY
DEVICES, AND PROTECTIVE SHIELDS
AND BARRIERS, SHALL BE PROVIDED, USED, AND MAINTAINED IN A SANITARY
AND RELIABLE CONDITION
WHEREVER IT IS NECESSARY BY REASON OF HAZARDS OF PROCESSES OR
ENVIRONMENT, CHEMICAL HAZARDS,
RADIOLOGICAL HAZARDS, OR MECHANICAL IRRITANTS ENCOUNTERED IN A MANNER
CAPABLE OF CAUSING
INJURY OR IMPAIRMENT IN THE FUNCTION OF ANY PART OF THE BODY THROUGH
ABSORPTION, INHALATION OR
PHYSICAL CONTACT.
/5/ SECTION 7117(A)(1) OF THE STATUTE (5 U.S.C. 7117(A)(1)) PROVIDES
AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
/6/ 5 U.S.C. 5901 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 5901. UNIFORM ALLOWANCES
(A) THERE IS AUTHORIZED TO BE APPROPRIATED ANNUALLY TO EACH AGENCY OF
THE GOVERNMENT OF THE
UNITED STATES, INCLUDING A GOVERNMENT-OWNED CORPORATION, AND OF THE
GOVERNMENT OF THE DISTRICT
OF COLUMBIA, ON A SHOWING OF NECESSITY OR DESIRABILITY, AN AMOUNT NOT
TO EXCEED $125
MULTIPLIED BY THE NUMBER OF EMPLOYEES OF THE AGENCY WHO ARE REQUIRED
BY REGULATION OR STATUTE
TO WEAR A PRESCRIBED UNIFORM IN THE PERFORMANCE OF OFFICIAL DUTIES
AND WHO ARE NOT BEING
FURNISHED WITH THE UNIFORM. THE HEAD OF THE AGENCY CONCERNED, OUT OF
FUNDS MADE AVAILABLE BY
THE APPROPRIATION, SHALL--
(1) FURNISH TO EACH OF THESE EMPLOYEES A UNIFORM AT A COST NOT TO
EXCEED $125 A YEAR; OR
(2) PAY TO EACH OF THESE EMPLOYEES AN ALLOWANCE FOR A UNIFORM NOT TO
EXCEED $125 A YEAR.
/7/ OMB CIRCULAR A030, REVISED, AUGUST 20, 1966, PROVIDES, IN
RELEVANT PART, AS FOLLOWS:
1. PURPOSE. THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT OF 1954, AS
AMENDED, (5
U.S.C. 2131-2133) PROVIDES FOR FURNISHING OF UNIFORMS OR FOR PAYMENT
OF UNIFORM ALLOWANCES TO
CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ARE REQUIRED TO WEAR
UNIFORMS.
. . . .
2. COVERAGE. PROVISIONS OF THE ACT APPLY TO EACH AGENCY OF THE
GOVERNMENT OF THE UNITED
STATES OR OF THE DISTRICT OF COLUMBIA, INCLUDING GOVERNMENT-OWNED
CORPORATIONS.
. . . .
4. INITIAL ACTIONS AND DECISIONS.
. . . .
B. DECIDING WHETHER TO FURNISH UNIFORMS OR TO PAY ALLOWANCES.
WHENEVER THE AGENCY HEAD DETERMINES THAT A GROUP OF EMPLOYEES IS
REQUIRED TO WEAR A
UNIFORM, HE SHALL DETERMINE WHETHER THE BEST INTERESTS OF THE
GOVERNMENT WILL BE SERVED BY
FURNISHING GOVERNMENT-OWNED UNIFORMS TO EMPLOYEES, OR BY PAYING
UNIFORM ALLOWANCES FOR
UNIFORMS PROCURED BY EMPLOYEES OR BY A COMBINATION OF BOTH METHODS.
. . . THE DECISION MAY BE
EFFECTIVE AS OF THE DATE IT IS MADE PROVIDED FUNDS USABLE FOR THIS
PURPOSE ARE
AVAILABLE; OTHERWISE, THE DECISION MAY BE EFFECTIVE WHEN FUNDS
BECOME AVAILABLE.
/8/ THERE IS NO DISPUTE BETWEEN THE PARTIES THAT FROCKS CONSTITUTE
"UNIFORMS" WITHIN THE MEANING OF LAW AND REGULATION. CF. NATIONAL
TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION VIII, SAN
FRANCISCO, CALIFORNIA, 2 FLRA 254(1979) (AGENCY REQUIREMENT THAT
EMPLOYEES WEAR NAMEPLATES AS A PART OF THEIR UNIFORMS HELD OUTSIDE THE
DUTY TO BARGAIN UNDER SECTION 7106(B)(1) OF THE STATUTE ON GROUNDS THAT,
IN THE CIRCUMSTANCES OF THAT CASE, NAMEPLATES WERE A "MEANS" OF
PERFORMING THE AGENCY'S WORK).
/9/ IN THIS REGARD, IF THE AGENCY IS CORRECT IN ITS ASSERTION THAT
THE PROPOSAL IS LEGALLY UNENFORCEABLE UNLESS THE AGENCY EMBODIES IN A
REGULATION ITS DETERMINATION THAT MEAT GRADERS MUST WEAR A UNIFORM, SEE,
E.G., COMPTROLLER GENERAL DECISION B-191761 (SEPTEMBER 22, 1978),
AGREEMENT BY THE AGENCY TO THE PROPOSAL WOULD NECESSITATE THE
PROMULGATION OF A VALID REGULATION SETTING FORTH SUCH A REQUIREMENT.
SEE SECTION 7114(B)(5) OF THE STATUTE (5 U.S.C. 7114(B)(5)).
FURTHER, WITH RESPECT TO THE POTENTIAL SUPPLYING OF FROCKS TO
EMPLOYEES, THE AUTHORITY NOTES THAT THE REGULATIONS IMPLEMENTING 5
U.S.C. 5901 PROVIDE THAT THE DECISION TO FURNISH UNIFORMS MAY BE
EFFECTIVE AS OF THE DATE IT IS MADE SO LONG AS FUNDS USABLE FOR THIS
PURPOSE ARE AVAILABLE; OTHERWISE, THE DECISION MAY BE EFFECTIVE WHEN
FUNDS BECOME AVAILABLE.
/10/ 5 CFR 550.904(A) PROVIDES AS FOLLOWS:
SEC. 550.904 AUTHORIZATION OF HAZARD PAY DIFFERENTIAL
(A) AN AGENCY SHALL PAY THE HAZARD PAY DIFFERENTIAL LISTED IN
APPENDIX A TO AN EMPLOYEE WHO
IS ASSIGNED TO AND PERFORMS ANY IRREGULAR OR INTERMITTENT DUTY
SPECIFIED IN THE APPENDIX WHEN
THAT DUTY IS NOT USUALLY INVOLVED IN CARRYING OUT THE DUTIES OF HIS
POSITION. HAZARD PAY
DIFFERENTIAL MAY NOT BE PAID AN EMPLOYEE WHEN THE HAZARDOUS DUTY HAS
BEEN TAKEN INTO ACCOUNT
IN THE CLASSIFICATION OF HIS POSITION.
SEE ALSO FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-2, BOOK 550,
SUBCHAP. S9.
/11/ SECTION 7103(A)(14)(B) OF THE STATUTE (5 U.S.C. 7103(A)(14)(B))
PROVIDES AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(14) 'CONDITIONS OF EMPLOYMENT' MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
. . . .
(B) RELATING TO THE CLASSIFICATION OF ANY POSITION (.)
/12/ SECTION 2411.22(B) OF THE RULES AND REGULATIONS OF THE FEDERAL
LABOR RELATIONS COUNCIL (5 CFR 24.11.22(B)(1978)) PROVIDED AS FOLLOWS:
SEC. 2411.22 CONDITIONS GOVERNING REVIEW.
. . . .
(B) THE COUNCIL WILL REVIEW A LABOR ORGANIZATION'S APPEAL CHALLENGING
AN AGENCY HEAD'S
DETERMINATION THAT AN INTERNAL AGENCY REGULATION BARS NEGOTIATION
ONLY IF THE LABOR
ORGANIZATION HAS FIRST REQUESTED AN EXCEPTION TO THE REGULATION FROM
THE AGENCY HEAD AND THAT
REQUEST HAS BEEN DENIED OR HAS NOT BEEN ACTED UPON WITHIN THE TIME
LIMITS PRESCRIBED BY
SEC. 2411.24.
/13/ SECTION 7135(B) OF THE STATUTE (5 U.S.C. 7135(B)) PROVIDES AS
FOLLOWS:
SEC. 7135. CONTINUATION OF EXISTING LAWS, RECOGNITIONS, AGREEMENTS,
AND PROCEDURES
. . . .
(B) POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED UNDER AND
DECISIONS ISSUED UNDER
EXECUTIVE ORDERS 11491, 11616, 11636, 11787, AND 11838, OR UNDER ANY
OTHER EXECUTIVE ORDER, AS
IN EFFECT ON THE EFFECTIVE DATE OF THIS CHAPTER, SHALL REMAIN IN FULL
FORCE AND EFFECT UNTIL
REVISED OR REVOKED BY THE PRESIDENT, OR UNLESS SUPERSEDED BY SPECIFIC
PROVISIONS OF THIS
CHAPTER OR BY REGULATIONS OR DECISIONS ISSUED PURSUANT TO THIS
CHAPTER.
/14/ SECTION 7117(A)(2) OF THE STATUTE (5 U.S.C. 7117(A)(2)) PROVIDES
AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
. . . .
(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL
LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY
AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
SUBSECTION ONLY IF THE
AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
COMPELLING NEED (AS
DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
THE RULE OR REGULATION.
/15/ SECTION 7105(A)(2)(D) OF THE STATUTE (5 U.S.C. 7105(A)(2)(D))
PROVIDES AS FOLLOWS:
SEC. 7105. POWERS AND DUTIES OF THE AUTHORITY
. . . .
(A)(2) THE AUTHORITY SHALL, TO THE EXTENT PROVIDED IN THIS CHAPTER
AND IN ACCORDANCE WITH
REGULATIONS PRESCRIBED BY THE AUTHORITY--
. . . .
(D) PRESCRIBE CRITERIA AND RESOLVE ISSUES RELATING TO DETERMINING
COMPELLING NEED FOR
AGENCY RULES OR REGULATIONS UNDER SECTION 7117(B) OF THIS TITLE (.)
/16/ SECTION 7117(B) OF THE STATUTE (5 U.S.C. 7117(B)) PROVIDES, IN
RELEVANT PART, AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
. . . .
(B)(1) IN ANY CASE OF COLLECTIVE BARGAINING IN WHICH AN EXCLUSIVE
REPRESENTATIVE ALLEGES
THAT NO COMPELLING NEED EXISTS FOR ANY RULE OR REGULATION REFERRED TO
IN SUBSECTION (A)(3) OF
THIS SECTION WHICH IS THEN IN EFFECT AND WHICH GOVERNS ANY MATTER AT
ISSUE IN SUCH COLLECTIVE
BARGAINING, THE AUTHORITY SHALL DETERMINE UNDER PARAGRAPH (2) OF THIS
SUBSECTION, IN
ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE AUTHORITY, WHETHER SUCH
A COMPELLING NEED
EXISTS.
(2) FOR THE PURPOSE OF THIS SECTION, A COMPELLING NEED SHALL BE
DETERMINED NOT TO EXIST FOR
ANY RULE OR REGULATION ONLY IF--
(A) THE AGENCY, OR PRIMARY NATIONAL SUBDIVISION, AS THE CASE MAY BE,
WHICH ISSUED THE RULE
OR REGULATION INFORMS THE AUTHORITY IN WRITING THAT A COMPELLING NEED
FOR THE RULE OR
REGULATION DOES NOT EXIST; OR
(B) THE AUTHORITY DETERMINES THAT A COMPELLING NEED FOR A RULE OR
REGULATION DOES NOT
EXIST.
/17/ CF. 57 COMP.GEN. 379, 384(1978) (PROPOSAL RELATING TO "PORTAL TO
PORTAL" TRAVEL FOR MEAT GRADERS CONTRARY TO LAW AND REGULATION).
/18/ THE AUTHORITY NOTES THAT SHOULD THE AGENCY AGREE TO THE PROPOSAL
IN SUBSEQUENT BARGAINING IT WOULD BE REQUIRED THEREBY TO AMEND ITS
OFFICIAL POLICY BY, E.G., ISSUING NEW REGULATIONS. SEE NOTE 9, SUPRA.