12:0346(75)PS - Decision on Request for General Statement of Policy or Guidance -- 1983 FLRAdec PS



[ v12 p346 ]
12:0346(75)PS
The decision of the Authority follows:


 12 FLRA No. 75
 
                                            Case No. O-PS-24
 
      DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
 GUIDANCE
 
    The Authority received a request from the United States Department of
 Labor (DOL) that the Authority issue a major policy determination
 concerning, in effect, whether the Federal Service Impasses Panel
 (Panel) may assert jurisdiction over a matter in which one party has
 alleged that there exists no duty to bargain.  Specifically, DOL has
 asked:
 
          Does the Federal Service Impasses Panel (FSIP) have the
       authority to usurp the responsibility of the Federal Labor
       Relations Authority (FLRA) under 5 C.F.R. 2471.6 and require the
       parties to maintain the status quo and bargain where there is no
       obligation to bargain?  Alternatively, must the assertion of no
       duty to bargain first be reaffirmed or denied by the FLRA?
 
    The Authority has carefully considered DOL's 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/ DOL contends that, a
 under the specific facts of the instant dispute, the Panel exceeded its
 jurisdiction by dealing with a question concerning the obligation to
 bargain.  /2/ Congress established the unfair labor practice procedures
 as the mechanism in which questions such as those raised by DOL can be
 resolved.  Accordingly, the Authority finds that the questions raised by
 DOL's contention can more appropriately be resolved through other means.
  /3/
 
    Moreover, with regard to DOL's request now before the Authority, it
 is concluded, because of the particular circumstances of the underlying
 dispute between DOL and Local 12 of the American Federation of
 Government Employees, AFL-CIO, that granting the request would not
 prevent a proliferation of similar cases and that resolution of the
 question presented in this context would not have general applicability
 under the Statute.  Thus, on balance, the Authority concludes upon
 consideration of the criteria of section 2427.5 of the Rules and
 Regulations governing the issuance of general statements of policy and
 guidance, that the instant request should be, and hereby is, denied.
 Issued, Washington, D.C., July 27, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 MEMBER FRAZIER, CONCURRING:
 
    In this case the Department of Labor (DOL) requested "a general
 statement of policy guidance" provided for under Federal Labor Relations
 Authority Rules and Regulations, 5 C.F.R.part 2427, on the following
 question:
 
          Does the Federal Service Impasses Panel (FSIP) have the
       authority to usurp the responsibility of the Federal Labor
       Relations Authority (FLRA) under 5 C.F.R. 2471.6 and require the
       parties to maintain the status quo and bargain where there is no
       obligation to bargain?  Alternatively, must the assertion of no
       duty to bargain first be affirmed or denied by the FLRA?
 
    The Authority has previously ruled, in Interpretation and Guidance,
 11 FLRA No. 107 (1983), issued pursuant to part 2427 of our Rules and
 Regulations, that "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."
 In so ruling, the Authority went on to explain:
 
          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 must be resolved through appeal to
       the Authority.
 
          As to disputes 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 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.  (Footnote omitted.) /4/
 
    Therefore, to the extent that the DOL request raises a question
 concerning the respective jurisdictions of the Authority and the Panel
 when a dispute arises relating to a party's obligation to bargain during
 an impasse, that question has been previously presented to the
 Authority, deemed appropriate under part 2427 of the Rules and
 Regulations for a general statement of policy or guidance, /5/ and
 answered by the Authority in the previous ruling.  To that extent, the
 issue posed by DOL has been settled.
 
    On the other hand, to the extent that DOL may be attempting through
 its instant request for a general statement of policy or guidance, to
 seek relief from or to file with the Authority an appeal from a Decision
 and Order of the Panel, that attempt must be rejected.  /6/ Part 2427 of
 the Authority's Rules and Regulations sets forth procedures under which
 requests may be submitted to the Authority seeking the issuance of
 general statements of policy or guidance under section 7105(a)(1) of the
 Statute.  /7/ Part 2427 of its Rules and Regulations was issued pursuant
 to section 7134 of the Statute.  /8/ The Rules and Regulations contained
 in part 2427, like any Rules and Regulations of the Authority must, of
 course, be written, interpreted and applied in a manner consistent with
 the Statute.  To the extent that a party might attempt to utilize those
 Rules and Regulations in a manner or for purposes inconsistent with the
 Statute, that attempt must be denied as contrary to the Statute.
 Therefore, to the extent that DOL may be attempting, through an
 ostensible request for a general statement of policy or guidance filed
 under the provisions of part 2427, to seek relief from or to file with
 the Authority an appeal from a Decision and Order of the Panel, that
 attempt must be rejected as inconsistent with the Statute.  /9/
 
    The Statute provides that any action by the Panel to resolve a
 bargaining impasse is final and binding on the parties, unless they
 mutually agree to an alternative resolution.  /10/ An alleged failure to
 comply with the Panel's final Decision and Order can be raised as an
 unfair labor practice under section 7116 of the Statute.  /11/ In any
 such unfair labor practice proceeding, the party charged with
 noncompliance with a final Decision and Order of the Panel may defend
 its action on the grounds, inter alia, that the Panel's action was
 outside the scope of its jurisdiction or was otherwise contrary to the
 Statute.  No direct appeal from a final Decision and Order of the Panel
 is provided for in the Statute, and the legislative history of the
 Statute decisively supports the conclusion that no right of appeal was
 intended.
 
    The Senate bill provided for the filing of exceptions to a Panel
 decision /12/ and, hence, a direct but limited review by the Authority.
 /13/ The House bill reported out of committee, however, contained no
 provision for a direct challenge of a Panel Decision and Order with the
 Authority.  In fact, section 7119(c)(5)(C) of this Statute is virtually
 identical to the analogous provision of the House bill as reported out
 of committee.  /14/ In discussing its intention regarding the finality
 of Panel decisions, the House Committee expressly stated in its report
 accompanying the bill:
 
          Notice of any final action of the Panel must be promptly served
       upon the parties, and the action is final and binding upon the
       parties during the term of the agreement, unless the parties agree
       otherwise.  Final action of the Panel under this section is not
       subject to appeal, and failure to comply with any final action
       ordered by the Panel constitutes an unfair labor practice by an
       agency . . . .  /15/
 
 The Conference Committee agreed on the House version without comment.
 /16/ Since section 7119(c)(5)(C) was enacted in precisely the form
 reported out of the House, and the relevant legislative history in the
 House is clear, Congress obviously intended that there be no direct
 appeal of Panel decisions.  /17/
 
    Therefore, to the extent that the DOL request is, in effect, an
 attempt to appeal directly to the Authority from a final Decision and
 Order of the Panel, that attempt must be rejected as contrary to the
 Statute.
 
    In conclusion, to state the matter plainly, DOL may not obtain review
 of the Panel's final Decision and Order without disobeying it, thereby
 subjecting itself to a possible unfair labor practice charge.  Only in
 the context of such an unfair labor practice proceeding could the
 Panel's final Decision and Order be challenged.  If this is what my
 colleagues mean when they state that "Congress established the unfair
 labor practice procedure as the mechanism in which questions such as
 those raised by DOL can be resolved," I agree.  I cannot say that the
 question presented by DOL can therefore "more appropriately" be resolved
 0y other means, namely the unfair labor practice procedures.  I must say
 that to the extent the DOL request is, in effect, an attempt to appeal
 directly to the Authority from a final Decision and Order of the Panel,
 such appeal can only be resolved through use of the unfair labor
 practice procedures, as outlined.  Issued, Washington, D.C., July 27,
 1983
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 2427.5 provides as follows:
 
          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 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/ Regarding the Panel's authority to resolve questions relating to
 the obligation to bargain, see, Interpretation and Guidance, 11 FLRA No.
 107 (1983), appeal docketed, No. 83-1518 (D.C. Cir. May 13, 1983).
 
 
    /3/ Department of the Navy, Naval Air Station, Patuxent River,
 Maryland, 8 FLRA No. 29 (1982).
 
 
    /4/ Interpretation and Guidance at 3-4.
 
 
    /5/ For this reason it appears somewhat inconsistent for the majority
 to conclude that the instant request from DOL "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."
 
 
    /6/ See Decision and Order of the Federal Service Impasses Panel in
 the matter of U.S. Department of Labor, Washington, D.C. and Local 12,
 American Federation of Government Employees, AFL-CIO, 82 FSIP 95, in
 which the Panel, following a request by the American Federation of
 Government Employees for assistance in resolving an impasse with DOL,
 determined the length of notice period to be given unit employees
 affected by a transfer and ordered the parties to adopt specific
 contractual language to that effect.  DOL had maintained that there
 existed no obligation to bargain the length of the notice period
 inasmuch as the notice period had been previously established and
 reaffirmed by the parties in their current collective bargaining
 agreement.  Reciting these circumstances, DOL, in its instant request,
 now argues that the Panel lacked jurisdiction to handle the dispute
 since questions concerning the duty to bargain were raised.
 
 
    /7/ Section 7105(a)(1) provides:
 
          The Authority shall provide leadership in establishing policies
       and guidance relating to matters under this chapter, and, except
       as otherwise provided, shall be responsible for carrying out the
       purposes of this chapter.
 
 
    /8/ Section 7134 of the Statute provides in pertinent part:
 
          The Authority, the General Counsel, the Federal Mediation and
       Conciliation Service, the Assistant Secretary of Labor for Labor
       Management Relations, and the Panel shall each prescribe rules and
       regulations to carry out the provisions of this chapter applicable
       to each of them, respectively.
 
 
    /9/ Should a party submit a bona fide request for a statement of
 policy or guidance, i.e., one which is not otherwise inconsistent with
 or contrary to the Statute, the Authority should, of course, consider
 the standards in section 2427.5 of its Rules and Regulations in deciding
 whether to issue the statement requested.  Clearly in such circumstances
 where the Authority does reach section 2427.5 of its Rules and
 Regulations, the application of that section is not a mechanical process
 but one which calls for the exercise of judgment and discretion.  In
 this case I find no reason to apply the provisions of section 2427.5
 because the DOL request itself, to the extent that it seeks relief from
 or may constitute an appeal from a Decision and Order of the Panel, is
 inconsistent with the Statute and must be denied as contrary thereto.
 
 
    /10/ Section 7119(c)(5)(C) of the Statute states:
 
          (C) Notice of any final action of the Panel under this section
       shall be promptly served upon the parties, and the action shall be
       binding on such parties during the term of the agreement, unless
       the parties agree otherwise.
 
 
    /11/ In this regard, section 7116 provides in pertinent part as
 follows:
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
                                .  .  .  .
 
          (6) to fail or refuse to cooperate in impasse procedures and
       impasse decisions as required by this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
          (b) For the purpose of this chapter, it shall be an unfair
       labor practice for a labor organization--
 
                                .  .  .  .
 
          (6) to fail or refuse to cooperate in impasse procedures and
       impasse decisions as required by this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /12/ S. 2640, 95th Cong., 2d Sess. Sec. 7204(c)(4) (1978) reprinted
 in Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978, at 566-67
 (1979).
 
 
    /13/ S. Rep. No. 95-969, 95th Cong., 2d Sess. 101 (1978), Legislative
 History at 761.
 
 
    /14/ H.R. 11280, 95th Cong., 2d Sess. Sec. 7119(c)(5)(C) (1978),
 Legislative History at 417.
 
 
    /15/ H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 54-55 (1978),
 Legislative History at 700-01.
 
 
    /16/ H.R.