12:0074(25)PS - Order Denying Request for General Ruling -- 1983 FLRAdec PS
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The decision of the Authority follows:
12 FLRA No. 25 ORDER DENYING REQUEST FOR GENERAL RULING The General Counsel of the Authority, pursuant to section 2429.4 of the Authority's Rules and Regulations, /1/ has requested that the Authority issue a general ruling on certain issues which have arisen in an unfair labor practice case pending before him. Specifically, the General Counsel seeks rulings on the following issues: 1. Is the John F. Kennedy Center for the Performing Arts, a bureau within the Smithsonian Institution, an agency within the meaning of section 7103(a)(2) of the Statute subject to the provisions of the Statute? 2. Is an applicant for employment with a Federal agency (who is not a current Federal employee) an employee within the meaning of section 7103(a)(2) of the Statute so that the refusal to hire the applicant based solely on union considerations would be encompassed within the unfair labor practices set forth in section 7116(a)(2) and 7116(b)(2) of the Statute? 3. If the refusal to hire an applicant based solely on union considerations is encompassed within the unfair labor practices set forth in section 7116(a)(2) and 7116(b)(2) of the Statute, does the first sentence of section 7116(d) of the Statute bar the Authority from asserting jurisdiction over such refusal of an agency to hire an applicant based solely on union considerations? Whether the John F. Kennedy Center for the Performing Arts is an "agency" within the meaning of the Statute is a threshold jurisdictional issue which must be resolved before the remaining issues raised by the General Counsel can be considered by him. The Authority concludes that this issue of jurisdiction over the Kennedy Center is not one involving "major policy" within the meaning of section 2429.4 of the Rules and Regulations, since resolution of that issue will not settle questions of general applicability under the Federal Service Labor-Management Relations Statute (5 U.S.C. 7101 et seq.). Accordingly, a general ruling will not be issued with regard to this narrow jurisdictional question. In view of the foregoing determination involving the threshold issue pending before the General Counsel, the Authority further concludes that it is inappropriate for it to consider the remaining substantive issues raised at this time by the General Counsel. Accordingly, IT IS ORDERED that the General Counsel's request for a general ruling be, and it hereby is, denied. Issued, Washington, D.C., May 26, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 2429.4 provides, in pertinent part: Sec.2429.4 Referral of policy questions to the Authority. Notwithstanding the procedures set forth in this subchapter, the General Counsel . . . may refer for review and decision or general ruling by the Authority any case involving a major policy issue that arises in a proceeding before (him). . . .