[ v16 p549 ]
16:0549(75)PS
The decision of the Authority follows:
16 FLRA No. 75
Case No. O-PS-27
DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
GUIDANCE
The Authority received a request from the United States Customs
Service to issue a statement of guidance with respect to the following
question:
What courses of action are available to the U.S. Customs
Service, or to other Federal employees, for the resolution of
negotiability disputes when, in the course of negotiations, a
written declaration of nonnegotiability is made to the union
declaring specific proposals to be beyond the duty to bargain, the
Union declines to file a petition for review of negotiability
issues with the Authority, but nevertheless continues to insist in
impasse proceedings that the disputed proposal be included in the
labor agreement.
The Authority has carefully considered the Customs Service 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/ because the
question raised by that request not only can be, but has been, resolved
by other means. In this regard, as the Customs Service recognizes, it
is well settled that section 7117(c) of the Statute does not provide for
an agency to file a negotiability appeal with the Authority. Veterans
Administration Medical Center, Salisbury, North Carolina and American
Federation of Government Employees, AFL-CIO, Local 1738, 2 FLRA 405
(1980). Moreover, as the Customs Service also recognizes, it is equally
well established, as to impasse proceedings, that section 7119 of the
Statute does not authorize the Federal Service Impasses Panel (FSIP) to
resolve negotiability questions. Interpretation and Guidance, 11 FLRA
No. 107 (1983). See also Interpretation and Guidance, 12 FLRA No. 75
(1983) (Member Frazier concurring). /2/ Nor may a party to a proceeding
before the FSIP appeal directly to the Authority pursuant to that
proceeding. State of New York, Division of Military and Naval Affairs
and New York Council, Association of Civilian Technicians, Inc., 2 FLRA
186 (1979). See Department of the Air Force and American Federation of
Government Employees, AFL-CIO, 4 FLRA 717, 720 (1980) (wherein the
Authority stated that direct appeal to the Authority from the award of
an arbitration panel established by FSIP pursuant to the authority under
section 7119 is not permitted). Therefore, consistent with existing
Authority precedent, it is clear that, under the Statute, no course of
action is available to an agency for resolution of negotiability
disputes in the circumstances presented by the Customs Service request.
However, an agency may challenge the propriety of an interest
arbitration award rendered pursuant to a Panel proceeding by filing
exceptions to the award with the Authority under section 7122(a) of the
Statute. See United States Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio and Council 214, American
Federation of Government Employees, AFL-CIO and United States Air Force,
Air force Logistics Command, Wright-Patterson Air Force Base, Ohio and
American Federation of Government Employees, AFL-CIO, 15 FLRA No. 27
(1984), appeal docketed sub nom. Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, No.
84-3695 (6th Cir. August 22, 1984). Moreover, an agency can refuse to
comply with an order of the FSIP, subjecting itself to a possible unfair
labor practice complaint, and defend its action in an unfair labor
practice proceeding on the ground that the Panel's order was
inconsistent with applicable law, rule or regulation. See State of
Nevada National Guard and National Association of Government Employees,
Locals R12-13 and R12-145, 7 FLRA 245 (1981). Further, an agency head,
under section 7114(c) of the Statute, may disapprove provisions imposed
by the FSIP and incorporated into a collective bargaining agreement by
the local parties pursuant to a Panel proceeding because those
provisions are not in accordance with the Statute and other applicable
laws, rules and regulations, thereby subjecting the agency to a possible
negotiability appeal or an unfair labor practice charge. See
Interpretation and Guidance, 15 FLRA No. 120 (1984), appeal docketed sub
nom. American Federation of Government Employees v. FLRA, No. 84-1512
(D.C. Cir. October 12, 1984).
Thus, the guidance sought by the Customs Service in its request is
provided by existing Authority precedent. Therefore, upon consideration
of the criteria of section 2427.5 of the Rules and Regulations governing
the issuance of general statements of policy or guidance, the Authority
concludes that the instant request should be, and hereby is, denied.
Issued, Washington, D.C., November 19, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 2427.5 provides as follows:
Sec. 2427.5 Standards governing issuance of general statements
of policy or 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/ Since the FSIP does not possess the authority to resolve
negotiability questions, it clearly follows that the FSIP cannot
delegate to an arbitrator any authority to resolve such questions.