[ v12 p346 ]
12:0346(75)PS
The decision of the Authority follows:
12 FLRA No. 75
Case No. O-PS-24
DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
GUIDANCE
The Authority received a request from the United States Department of
Labor (DOL) that the Authority issue a major policy determination
concerning, in effect, whether the Federal Service Impasses Panel
(Panel) may assert jurisdiction over a matter in which one party has
alleged that there exists no duty to bargain. Specifically, DOL has
asked:
Does the Federal Service Impasses Panel (FSIP) have the
authority to usurp the responsibility of the Federal Labor
Relations Authority (FLRA) under 5 C.F.R. 2471.6 and require the
parties to maintain the status quo and bargain where there is no
obligation to bargain? Alternatively, must the assertion of no
duty to bargain first be reaffirmed or denied by the FLRA?
The Authority has carefully considered DOL's request and has
determined that it does not satisfy the standards governing the issuance
of general statements of policy and guidance set forth in section 2427.5
of the Authority's Rules and Regulations. /1/ DOL contends that, a
under the specific facts of the instant dispute, the Panel exceeded its
jurisdiction by dealing with a question concerning the obligation to
bargain. /2/ Congress established the unfair labor practice procedures
as the mechanism in which questions such as those raised by DOL can be
resolved. Accordingly, the Authority finds that the questions raised by
DOL's contention can more appropriately be resolved through other means.
/3/
Moreover, with regard to DOL's request now before the Authority, it
is concluded, because of the particular circumstances of the underlying
dispute between DOL and Local 12 of the American Federation of
Government Employees, AFL-CIO, that granting the request would not
prevent a proliferation of similar cases and that resolution of the
question presented in this context would not have general applicability
under the Statute. Thus, on balance, the Authority concludes upon
consideration of the criteria of section 2427.5 of the Rules and
Regulations governing the issuance of general statements of policy and
guidance, that the instant request should be, and hereby is, denied.
Issued, Washington, D.C., July 27, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
MEMBER FRAZIER, CONCURRING:
In this case the Department of Labor (DOL) requested "a general
statement of policy guidance" provided for under Federal Labor Relations
Authority Rules and Regulations, 5 C.F.R.part 2427, on the following
question:
Does the Federal Service Impasses Panel (FSIP) have the
authority to usurp the responsibility of the Federal Labor
Relations Authority (FLRA) under 5 C.F.R. 2471.6 and require the
parties to maintain the status quo and bargain where there is no
obligation to bargain? Alternatively, must the assertion of no
duty to bargain first be affirmed or denied by the FLRA?
The Authority has previously ruled, in Interpretation and Guidance,
11 FLRA No. 107 (1983), issued pursuant to part 2427 of our Rules and
Regulations, that "Section 7119 of the Statute does not authorize the
Panel to resolve issues as to whether there is an obligation to bargain.
Rather, the Statute requires that the Authority resolve such issues."
In so ruling, the Authority went on to explain:
Specific provisions of the Statute provide for the resolution
by the Authority of disputes relating to the parties' obligation
to bargain. Thus, section 7105(a)(2)(E) of the Statute makes it
clear that the Authority is required to resolve issues relating to
the duty to bargain in good faith under section 7117(c) which
specifically contemplates an appeal "to the Authority." In order
to implement this statutory imperative, Part 2424 of the
Authority's Rules and Regulations sets forth the procedures for
union appeals to the Authority from agency allegations that the
duty to bargain in good faith does not extend to matters proposed
to be bargained. Therefore, it is clear that, based on the plain
language of the Statute as implemented in the Authority's Rules
and Regulations, negotiability issues which arise during the
collective bargaining process must be resolved through appeal to
the Authority.
As to disputes which involve a party's refusal to bargain
because it claims to have no obligation to bargain under the
particular circumstances in which bargaining has been requested,
section 7116(a)(5) of the Statute provides that it is an unfair
labor practice for an agency "to refuse to consult or negotiate in
good faith with a labor organization as required by this
(Statute)(.)" Section 7105(a)(2)(G) of the Statute requires the
Authority to "conduct hearings and resolve complaints of unfair
labor practices . . . (.)" Further, section 7118 of the Statute
requires the General Counsel of the Authority to investigate
unfair labor practice charges and prescribes procedures before the
Authority for the resolution of such issues. Finally, section
7105(e)(2) of the Statute permits the Authority only to delegate
to an administrative law judge "its authority under section 7118 .
. . ." These statutory provisions have been implemented in Part
2423 of the Authority's Rules and Regulations. Therefore, this
type of dispute concerning the obligation to bargain must also be
resolved by the Authority. (Footnote omitted.) /4/
Therefore, to the extent that the DOL request raises a question
concerning the respective jurisdictions of the Authority and the Panel
when a dispute arises relating to a party's obligation to bargain during
an impasse, that question has been previously presented to the
Authority, deemed appropriate under part 2427 of the Rules and
Regulations for a general statement of policy or guidance, /5/ and
answered by the Authority in the previous ruling. To that extent, the
issue posed by DOL has been settled.
On the other hand, to the extent that DOL may be attempting through
its instant request for a general statement of policy or guidance, to
seek relief from or to file with the Authority an appeal from a Decision
and Order of the Panel, that attempt must be rejected. /6/ Part 2427 of
the Authority's Rules and Regulations sets forth procedures under which
requests may be submitted to the Authority seeking the issuance of
general statements of policy or guidance under section 7105(a)(1) of the
Statute. /7/ Part 2427 of its Rules and Regulations was issued pursuant
to section 7134 of the Statute. /8/ The Rules and Regulations contained
in part 2427, like any Rules and Regulations of the Authority must, of
course, be written, interpreted and applied in a manner consistent with
the Statute. To the extent that a party might attempt to utilize those
Rules and Regulations in a manner or for purposes inconsistent with the
Statute, that attempt must be denied as contrary to the Statute.
Therefore, to the extent that DOL may be attempting, through an
ostensible request for a general statement of policy or guidance filed
under the provisions of part 2427, to seek relief from or to file with
the Authority an appeal from a Decision and Order of the Panel, that
attempt must be rejected as inconsistent with the Statute. /9/
The Statute provides that any action by the Panel to resolve a
bargaining impasse is final and binding on the parties, unless they
mutually agree to an alternative resolution. /10/ An alleged failure to
comply with the Panel's final Decision and Order can be raised as an
unfair labor practice under section 7116 of the Statute. /11/ In any
such unfair labor practice proceeding, the party charged with
noncompliance with a final Decision and Order of the Panel may defend
its action on the grounds, inter alia, that the Panel's action was
outside the scope of its jurisdiction or was otherwise contrary to the
Statute. No direct appeal from a final Decision and Order of the Panel
is provided for in the Statute, and the legislative history of the
Statute decisively supports the conclusion that no right of appeal was
intended.
The Senate bill provided for the filing of exceptions to a Panel
decision /12/ and, hence, a direct but limited review by the Authority.
/13/ The House bill reported out of committee, however, contained no
provision for a direct challenge of a Panel Decision and Order with the
Authority. In fact, section 7119(c)(5)(C) of this Statute is virtually
identical to the analogous provision of the House bill as reported out
of committee. /14/ In discussing its intention regarding the finality
of Panel decisions, the House Committee expressly stated in its report
accompanying the bill:
Notice of any final action of the Panel must be promptly served
upon the parties, and the action is final and binding upon the
parties during the term of the agreement, unless the parties agree
otherwise. Final action of the Panel under this section is not
subject to appeal, and failure to comply with any final action
ordered by the Panel constitutes an unfair labor practice by an
agency . . . . /15/
The Conference Committee agreed on the House version without comment.
/16/ Since section 7119(c)(5)(C) was enacted in precisely the form
reported out of the House, and the relevant legislative history in the
House is clear, Congress obviously intended that there be no direct
appeal of Panel decisions. /17/
Therefore, to the extent that the DOL request is, in effect, an
attempt to appeal directly to the Authority from a final Decision and
Order of the Panel, that attempt must be rejected as contrary to the
Statute.
In conclusion, to state the matter plainly, DOL may not obtain review
of the Panel's final Decision and Order without disobeying it, thereby
subjecting itself to a possible unfair labor practice charge. Only in
the context of such an unfair labor practice proceeding could the
Panel's final Decision and Order be challenged. If this is what my
colleagues mean when they state that "Congress established the unfair
labor practice procedure as the mechanism in which questions such as
those raised by DOL can be resolved," I agree. I cannot say that the
question presented by DOL can therefore "more appropriately" be resolved
0y other means, namely the unfair labor practice procedures. I must say
that to the extent the DOL request is, in effect, an attempt to appeal
directly to the Authority from a final Decision and Order of the Panel,
such appeal can only be resolved through use of the unfair labor
practice procedures, as outlined. Issued, Washington, D.C., July 27,
1983
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 2427.5 provides as follows:
Sec.2427.5 Standards governing issuance of general statements
of policy and guidance.
In deciding whether to issue a general statement of policy or
guidance, the Authority shall consider:
(a) Whether the question presented can more appropriately be
resolved by other means;
(b) Where other means are available, whether an Authority
statement would prevent the proliferation of cases involving the
same or similar question;
(c) Whether the resolution of the question presented would have
general applicability under the Federal Service Labor-Management
Relations Statute;
(d) Whether the question currently confronts parties in the
context of a labor-management relationship;
(e) Whether the question is presented jointly by the parties
involved; and
(f) Whether the issuance by the Authority of a general
statement of policy or guidance on the question would promote
constructive and cooperative labor-management relationships in the
Federal service and would otherwise promote the purposes of the
Federal Service Labor-Management Relations Statute.
/2/ Regarding the Panel's authority to resolve questions relating to
the obligation to bargain, see, Interpretation and Guidance, 11 FLRA No.
107 (1983), appeal docketed, No. 83-1518 (D.C. Cir. May 13, 1983).
/3/ Department of the Navy, Naval Air Station, Patuxent River,
Maryland, 8 FLRA No. 29 (1982).
/4/ Interpretation and Guidance at 3-4.
/5/ For this reason it appears somewhat inconsistent for the majority
to conclude that the instant request from DOL "does not satisfy the
standards governing the issuance of general statements of policy and
guidance set forth in section 2427.5 of the Authority's Rules and
Regulations."
/6/ See Decision and Order of the Federal Service Impasses Panel in
the matter of U.S. Department of Labor, Washington, D.C. and Local 12,
American Federation of Government Employees, AFL-CIO, 82 FSIP 95, in
which the Panel, following a request by the American Federation of
Government Employees for assistance in resolving an impasse with DOL,
determined the length of notice period to be given unit employees
affected by a transfer and ordered the parties to adopt specific
contractual language to that effect. DOL had maintained that there
existed no obligation to bargain the length of the notice period
inasmuch as the notice period had been previously established and
reaffirmed by the parties in their current collective bargaining
agreement. Reciting these circumstances, DOL, in its instant request,
now argues that the Panel lacked jurisdiction to handle the dispute
since questions concerning the duty to bargain were raised.
/7/ Section 7105(a)(1) provides:
The Authority shall provide leadership in establishing policies
and guidance relating to matters under this chapter, and, except
as otherwise provided, shall be responsible for carrying out the
purposes of this chapter.
/8/ Section 7134 of the Statute provides in pertinent part:
The Authority, the General Counsel, the Federal Mediation and
Conciliation Service, the Assistant Secretary of Labor for Labor
Management Relations, and the Panel shall each prescribe rules and
regulations to carry out the provisions of this chapter applicable
to each of them, respectively.
/9/ Should a party submit a bona fide request for a statement of
policy or guidance, i.e., one which is not otherwise inconsistent with
or contrary to the Statute, the Authority should, of course, consider
the standards in section 2427.5 of its Rules and Regulations in deciding
whether to issue the statement requested. Clearly in such circumstances
where the Authority does reach section 2427.5 of its Rules and
Regulations, the application of that section is not a mechanical process
but one which calls for the exercise of judgment and discretion. In
this case I find no reason to apply the provisions of section 2427.5
because the DOL request itself, to the extent that it seeks relief from
or may constitute an appeal from a Decision and Order of the Panel, is
inconsistent with the Statute and must be denied as contrary thereto.
/10/ Section 7119(c)(5)(C) of the Statute states:
(C) Notice of any final action of the Panel under this section
shall be promptly served upon the parties, and the action shall be
binding on such parties during the term of the agreement, unless
the parties agree otherwise.
/11/ In this regard, section 7116 provides in pertinent part as
follows:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
. . . .
(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization--
. . . .
(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/12/ S. 2640, 95th Cong., 2d Sess. Sec. 7204(c)(4) (1978) reprinted
in Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 566-67
(1979).
/13/ S. Rep. No. 95-969, 95th Cong., 2d Sess. 101 (1978), Legislative
History at 761.
/14/ H.R. 11280, 95th Cong., 2d Sess. Sec. 7119(c)(5)(C) (1978),
Legislative History at 417.
/15/ H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 54-55 (1978),
Legislative History at 700-01.
/16/ H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 152-53 (1978),
Legislative History at 820-21.
/17/ See Department of the Navy, Naval Air Station, Patuxent River,
Maryland and Local 1603, American Federation of Government Employees,
AFL-CIO, 8 FLRA No. 29 (1982) and Authority case discussed therein. See
generally AFGE, Local 1617 v. FLRA, No. 81-4412 (5th Cir., Dec. 16,
1981); Bureau of Prisons Council, AFGE, AFL-CIO v. FLRA, FSIP, No.
81-1055 (D.C. Cir., July 2, 1981); Nevada National Guard, Carson City,
Nevada v. U.S., No. 79-7235 (9th Cir., Dec. 14, 1979); and Council of
Prison Locals, AFGE, AFL-CIO v. Howlett, Civil Action No. 81-1782
(D.D.C., Apr. 26, 1983).