Decision on Request for General Statement of Policy or Guidance




[ v02 p650 ]
02:0650(80)PS
The decision of the Authority follows:


 2 FLRA No. 80
 
                                            Case No. 0-PS-8
 
          DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
                                 GUIDANCE
 
    AS PREVIOUSLY ANNOUNCED, /1/ THE AUTHORITY RECEIVED A REQUEST FROM
 THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) THAT THE AUTHORITY ISSUE A
 MAJOR POLICY DETERMINATION CONCERNING THE EFFECT OF CERTAIN PROVISIONS
 OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1111) ON ALLEGEDLY
 INCONSISTENT PROVISIONS OF COLLECTIVE BARGAINING AGREEMENTS.
 
    THE SPECIFIC MATTERS AT ISSUE, SUBSTANTIALLY AS STATED BY NTEU, ARE
 AS FOLLOWS:
 
    1.  DO THE PROVISIONS OF SECTION 7114(A) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS
 
    STATUTE (92 STAT. 1202), CONCERNING THE RIGHTS ACCORDED EXCLUSIVE
 REPRESENTATIVES OF THE
 
    EMPLOYEES SUPERSEDE, BY OPERATION OF LAW, INCONSISTENT PROVISIONS OF
 COLLECTIVE BARGAINING
 
    AGREEMENTS NEGOTIATED PRIOR TO JANUARY 11, 1979, OR DO THE
 INCONSISTENT PROVISIONS OF THE
 
    AGREEMENTS TAKE PRIORITY OVER PROVISIONS OF THE STATUTE, PURSUANT TO
 SECTION 7135(A)(1) (92
 
    STAT. 1215)?
 
    2.  DO THE PROVISIONS OF SECTION 7121(B)(3)(C) OF THE STATUTE (92
 STAT. 1211), PROVIDING
 
    BINDING ARBITRATION FOR ANY GRIEVANCE NOT SATISFACTORILY SETTLED
 UNDER THE NEGOTIATED
 
    GRIEVANCE PROCEDURE, SUPERSEDE, BY OPERATION OF LAW, INCONSISTENT
 PROVISIONS OF COLLECTIVE
 
    BARGAINING AGREEMENTS NEGOTIATED PRIOR TO JANUARY 11, 1979, OR DO THE
 INCONSISTENT PROVISIONS
 
    OF THE AGREEMENTS TAKE PRIORITY OVER THE PROVISIONS OF THE STATUTE,
 PURSUANT TO SECTION
 
    7135(A)(1)?
 
    3.  DO THE PROVISIONS OF SECTION 4302 OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92
 
    STAT. 1132, 1133), PARTICULARLY THOSE DEALING WITH THE RIGHTS OF
 EMPLOYEES TO PARTICIPATE IN
 
    THE ESTABLISHMENT OF PERFORMANCE STANDARDS, SUPERSEDE, BY THE
 OPERATION OF LAW, INCONSISTENT
 
    PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED PRIOR
 TO JANUARY 11, 1979, OR DO
 
    THE INCONSISTENT PROVISIONS OF THE AGREEMENTS TAKE PRIORITY OVER THE
 PROVISIONS OF THE ACT,
 
    PURSUANT TO SECTION 7135(A)(1)?
 
    4.  DO THE PROVISIONS OF SECTION 7116(A)(7) OF THE STATUTE (92 STAT.
 1204), PROVIDING THAT
 
    IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY TO ENFORCE ANY
 RULE OR REGULATION WHICH IS
 
    IN CONFLICT WITH ANY COLLECTIVE BARGAINING AGREEMENT IF THE AGREEMENT
 WAS IN EFFECT BEFORE THE
 
    DATE THE RULE OR REGULATION WAS PRESCRIBED, SUPERSEDE, BY OPERATION
 OF LAW, INCONSISTENT
 
    PROVISIONS OF COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED PRIOR TO
 JANUARY 11, 979, OR DO THE
 
    INCONSISTENT PROVISIONS OF THE AGREEMENTS TAKE PRIORITY OVER THE
 PROVISIONS OF THE STATUTE,
 
    PURSUANT TO SECTION 7135(A)(1)?
 
    BEFORE DECIDING WHETHER ISSUANCE OF A POLICY STATEMENT WAS WARRANTED,
 THE AUTHORITY INVITED INTERESTED PERSONS TO EXPRESS THEIR VIEWS IN
 WRITING WITH RESPECT TO THE QUESTION OF WHETHER THE AUTHORITY SHOULD
 ISSUE A POLICY STATEMENT ON THESE MATTERS.  THE VIEWS SUBMITTED TO THE
 AUTHORITY WERE MOST THOROUGH AND HELPFUL.
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THIS 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 RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY, WHICH PROVIDES IN
 PERTINENT PART:
 
    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
 
    PROLIFERATION OF CASES INVOLVING THE SAME OR SIMILAR QUESTION;
 
    (C) WHETHER THE RESOLUTION OF THE QUESTION PRESENTED WOULD HAVE
 GENERAL APPLICABILITY TO
 
    THE OVERALL PROGRAM(.)
 
    THE QUESTIONS PRESENTED IN THIS REQUEST FOR A MAJOR POLICY
 DETERMINATION CAN BE MORE APPROPRIATELY RESOLVED BY OTHER MEANS.  FOR
 EXAMPLE, PROCEDURES SET FORTH IN THE STATUTE AND APPROPRIATE REGULATIONS
 FOR THE RESOLUTION OF UNFAIR LABOR PRACTICES PROVIDE A MECHANISM FOR THE
 ADJUDICATION OF ISSUES OF FACT WITH RESPECT TO THE VARIED CIRCUMSTANCES
 PRESENTED BY THE QUESTIONS.  /2/
 
    MOREOVER, AUTHORITY ACTION ON THIS REQUEST IS NOT WARRANTED SINCE IT
 WOULD NOT PREVENT THE PROLIFERATION OF CASES INVOLVING THE SAME OR
 SIMILAR QUESTIONS.  IN THE REQUEST IT IS INDICATED THAT THE QUESTIONS
 PRESENTED ARE MERELY ILLUSTRATIVE OF A GREAT MANY SIMILAR QUESTIONS
 INVOLVING THE EFFECT OF THE ACT ON ALLEGEDLY INCONSISTENT PROVISIONS OF
 EXISTING COLLECTIVE BARGAINING AGREEMENTS ENTERED INTO BY NTEU AND
 CERTAIN AGENCIES.  IT IS APPARENT THAT SIMILAR QUESTIONS COULD ARISE
 WITH RESPECT TO VIRTUALLY ALL EXISTING COLLECTIVE BARGAINING AGREEMENTS
 AND MANY OTHER PROVISIONS OF THE ACT.  IN SUCH A SITUATION, GIVEN THE
 VARIETY OF AGREEMENT PROVISIONS AND THE PROVISIONS OF THE ACT WHICH
 COULD BE INVOLVED, ISSUANCE OF AN AUTHORITY STATEMENT MIGHT SERVE TO
 ENGENDER MORE QUESTIONS THAN IT WOULD ANSWER AND IN SO DOING CREATE MORE
 CASES THAN IT WOULD PREVENT.
 
    FINALLY RESOLUTION OF THE QUESTIONS PRESENTED WOULD NOT HAVE GENERAL
 APPLICABILITY TO THE OVERALL PROGRAM.  AS PREVIOUSLY NOTED, GIVEN THE
 VARIETY OF AGREEMENT PROVISIONS AND THE PROVISIONS OF THE ACT WHICH
 COULD CONCEIVABLY BE BROUGHT INTO PLAY, RESOLUTION OF THE QUESTIONS
 PRESENTED APPARENTLY WOULD ONLY HAVE APPLICABILITY TO THE SPECIFIC
 CONTRACTUAL RELATIONSHIPS IN EXISTENCE BETWEEN NTEU AND CERTAIN
 AGENCIES.
 
    ACCORDINGLY, THE REQUEST FOR A MAJOR POLICY DETERMINATION CANNOT BE
 GRANTED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ FEDERAL LABOR RELATIONS AUTHORITY, NOTICE RELATING TO THE
 ISSUANCE OF A POLICY STATEMENT, 44 F.R. 45997(AUG. 6, 1979).
 
    /2/ IN THIS CONNECTION, IT IS NOTED THAT NTEU HAS FILED SEVERAL
 UNFAIR LABOR PRACTICE CHARGES WITH THE AUTHORITY IN WHICH IT RAISES THE
 SAME QUESTIONS PRESENTED IN THE REQUEST.