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32 FLRA No. 76

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, MEBA, AFL-CIO
Union

and 

DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Agency

Case No. 0-NG-1456

ORDER

The Agency has moved to reopen this negotiability proceeding and stay the related unfair labor practice proceedings in Department of Transportation and Federal Aviation Administration, Case Nos. 3-CA-70647-1,2 et al. The Union opposes the motion. The General Counsel asserts that a stay of the unfair labor practice cases is inappropriate. For the reasons discussed below, we deny the Agency's motion.

On March 24, 1988, the Authority issued an order relating to the processing of these negotiability and unfair labor practice cases. That order was in response to a request from the Agency that the Authority: (1) proceed with the processing of the negotiability case notwithstanding the Union's selection under the Authority's Regulations to proceed first with the processing of the related unfair labor practice proceedings; and (2) stay the unfair labor practice proceeding pending completion of the processing of the negotiability case. The Authority's order of March 24, 1988, denied the Agency's request to process the negotiability case prior to the unfair labor practice cases and its request for a stay. The order also stated that processing of the negotiability case was suspended pending resolution of the related unfair labor practice cases.

By motion dated April 19, 1988, and renewed on April 27 and June 10, 1988, the Agency requested that the Authority reopen the negotiability case and stay the related unfair labor practice cases until issuance of a negotiability decision which addresses the negotiability of proposals raising compelling need issues.

On April 27, 1988, the Agency also filed a "Request For Special Permission To Appeal Administrative Law Judge's Denial of Respondents' Motion to Dismiss, To Strike, and For Other Appropriate Relief" in the related unfair labor practice cases. The Agency's request was filed after the Supreme Court issued its decision in FLRA v. Aberdeen Proving Ground, Department of the Army, 108 S. Ct. 1261 (1988). In that case, the Court held that the exclusive procedure for determining whether there is a compelling need for an agency regulation is the procedure set forth in section 7117(b) of the Federal Service Labor-Management Relations Statute, and that a compelling need determination may not be made in connection with an unfair labor practice proceeding.

On May 24, 1988, we denied the Agency's request because it was an interlocutory appeal of an order of the Administrative Law Judge (ALJ) and the Agency failed to demonstrate the existence of extraordinary circumstances which would warrant the granting of the request. We noted, among other things, that the ALJ had held a hearing in the case and all that remained before the ALJ issued a decision was the filing of post-hearing briefs. We also noted that the parties could address the effect of Aberdeen Proving Ground on the case in their post-hearing briefs and in exceptions filed with the Authority after the ALJ issues his decision.

As stated above, the Agency has again requested the Authority to stay the unfair labor practice proceeding and to reopen the negotiability appeal.

The Agency states that not all of the proposals involved in the unfair labor practice proceeding involve compelling need issues. Agency's April 19, 1988 Motion at 6. The Agency has not identified particular proposals, however. Further, the record indicates both that the Agency withdrew certain of its original assertions of nonnegotiability in the negotiability appeal (Agency's Response to Union Petition at third unnumbered page) and that the Union withdrew its unfair labor practice charge as it related to other proposals in the unfair labor practice proceeding (Agency's April 19, 1988 Motion at 6). As a result, we are unable to determine the extent to which the proposals in the unfair labor practice proceeding and the proposals in the negotiability appeal are identical, and to identify the proposals in the unfair labor practice proceeding which involve compelling need assertions and those which do not.

We expect that the record before the Administrative Law Judge will enable him to determine those proposals which involve compelling need assertions and those which do not. Under Authority precedent--which was not affected in any way by the Supreme Court's decision in Aberdeen Proving Ground--an Administrative Law Judge may consider the negotiability of proposals which do not involve compelling need assertions in resolving the allegations contained in the complaint before him. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651 (1988).

Consistent with the Supreme Court's decision in Aberdeen Proving Ground, the Administrative Law Judge does not have jurisdiction to resolve compelling need issues in the unfair labor practice proceeding. However, since there are proposals before the Judge which do not involve compelling need issues, the unfair labor practice complaint may be resolved without resolution of those issues. Compare Federal Emergency Management Agency, 32 FLRA No. 73 (1988) (unfair labor practice complaint alleging improper refusal to bargain dismissed where complaint concerned only one proposal about which agency raised compelling need issues). After completion of the unfair labor practice proceeding, the Union may withdraw its negotiability appeal or may otherwise modify any remaining proposals. Therefore, we find no reason to stay the unfair labor practice proceeding or to reinstitute the processing of the negotiability appeal at this time.

There is no basis on which to conclude that the Agency is harmed in any way by delaying consideration of the negotiability appeal until the unfair labor practice proceeding is completed. The Agency may not be required to bargain over any proposals about which it has made compelling need assertions until the Authority has determined in a negotiability proceeding that no compelling need exists for the regulation involved. Federal Emergency Management Agency, 32 FLRA No. 73, slip op. at 4-5.

Either party to the unfair labor practice proceeding may file exceptions to any portion of the Administrative Law Judge's decision with the Authority. If exceptions are filed, the Authority will review the Judge's decision. If exceptions are taken to any of the Judge's negotiability findings, those findings will be reviewed. Social Security Administration, 31 FLRA at 656. After issuance of the Authority's decision in the unfair labor practice proceeding, the Union may withdraw its negotiability appeal or may modify any remaining proposals. Absent a withdrawal or modification of the proposals, the Authority will reinstitute the processing of the negotiability appeal.

Accordingly, the Agency's request is denied in its entirety.

Issued, Washington, D.C.,

___________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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