11:0626(107)PS DIGEST HEADINGS STATUTE SUBJECT MATTER INDEX ENTRIES DIGEST NOTES INTERPRETATION AND GUIDANCE Introduction Conclusion Discussion -- 1983 FLRAdec PS



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11:0626(107)PS
The decision of the Authority follows:


11 FLRA NO. 107

Case No. 0-PS-23

INTERPRETATION AND GUIDANCE

Introduction

After careful consideration of a request for a general statement of policy submitted by the National Treasury Employees Union (NTEU), pursuant to section 2427.2 of the Authority's Rules and Regulations, the Authority has determined that an interpretation of the Federal Service Labor - Management Relations Statute (the Statute) is warranted on the question of whether the Federal Service Impasses Panel (the Panel) has the authority to resolve questions concerning the obligation to bargain which arise after the Panel has asserted jurisdiction over an impasse in negotiations pursuant to section 7119 of the Statute.

Conclusion 1

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.

Discussion

NTEU asserts that the language of section 7119(c)(5)(A) and (B) of the Statute reflects the clear intent of Congress to vest the Panel with "virtually limitless power" in settling bargaining disputes, once the Panel has asserted jurisdiction pursuant to section 2471.6(a)(2) of [ v11 p626] its Rules and Regulations. 2 More particularly, NTEU claims such intent is manifest in the language of section 7119(c)(5)(A)(ii) of the Statue 3 which states that the Panel shall assist the parties in resolving their impasse "through whatever methods and procedures ... it may consider appropriate...." and in the language of section 7119(c)(5)(B)(iii) of the Statute 4 which states that if the parties fail to settle the impasse, the Panel may "take whatever action is necessary and not inconsistent with (the Statute) to resolve the impasse." [ v11 p627 ]

In the absence of evidence that Congress intended the panel to resolve questions concerning the obligation to bargain, and in light of the unambiguous language of the Statue requiring the Authority to resolve such questions, the Authority finds the position of NTEU to be unpersuasive.

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 5 must be resolved through appeal to the Authority.

As to dispute 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. [ v11 p628 ]

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.

Consequently, since the plain language of the Statute specifically contemplates that the Authority (not the Panel) will resolve questions relating to the parties' obligation to bargain, and in the absence of any indication in the relevant legislative history that Congress intended the Panel to resolve such questions, the position of NTEU can not be sustained. On the contrary, the Authority finds that the Panel's authority under section 7119(c)(5)(A)(ii) to assist the parties in resolving an impasse through whatever methods or procedures the Panel considers appropriate does not include resolving questions concerning the underlying obligation to bargain. Nonetheless, the Statute itself recognizes the importance of expediting to the extent practicable the resolution of questions concerning the duty to bargain by the Authority. 5 U.S.C. 7117(c)(6). Where questions concerning the duty to bargain arise during an impasse in bargaining, the raising of such questions, as noted by NTEU, NFFE and the Panel, can further delay in whole or in part the final execution of a collective bargaining agreement. In this area, the Panel is to be commended for avoiding obligation to bargain problems in a number of cases and still resolving the impasses. 6