16:0549(75)PS - Decision on Request for General Statement of Policy or Guidance -- 1984 FLRAdec PS

[ v16 p549 ]
The decision of the Authority follows:

 16 FLRA No. 75
                                            Case No. O-PS-27
    The Authority received a request from the United States Customs
 Service to issue a statement of guidance with respect to the following
          What courses of action are available to the U.S. Customs
       Service, or to other Federal employees, for the resolution of
       negotiability disputes when, in the course of negotiations, a
       written declaration of nonnegotiability is made to the union
       declaring specific proposals to be beyond the duty to bargain, the
       Union declines to file a petition for review of negotiability
       issues with the Authority, but nevertheless continues to insist in
       impasse proceedings that the disputed proposal be included in the
       labor agreement.
    The Authority has carefully considered the Customs Service 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/ because the
 question raised by that request not only can be, but has been, resolved
 by other means.  In this regard, as the Customs Service recognizes, it
 is well settled that section 7117(c) of the Statute does not provide for
 an agency to file a negotiability appeal with the Authority.  Veterans
 Administration Medical Center, Salisbury, North Carolina and American
 Federation of Government Employees, AFL-CIO, Local 1738, 2 FLRA 405
 (1980).  Moreover, as the Customs Service also recognizes, it is equally
 well established, as to impasse proceedings, that section 7119 of the
 Statute does not authorize the Federal Service Impasses Panel (FSIP) to
 resolve negotiability questions.  Interpretation and Guidance, 11 FLRA
 No. 107 (1983).  See also Interpretation and Guidance, 12 FLRA No. 75
 (1983) (Member Frazier concurring).  /2/ Nor may a party to a proceeding
 before the FSIP appeal directly to the Authority pursuant to that
 proceeding.  State of New York, Division of Military and Naval Affairs
 and New York Council, Association of Civilian Technicians, Inc., 2 FLRA
 186 (1979).  See Department of the Air Force and American Federation of
 Government Employees, AFL-CIO, 4 FLRA 717, 720 (1980) (wherein the
 Authority stated that direct appeal to the Authority from the award of
 an arbitration panel established by FSIP pursuant to the authority under
 section 7119 is not permitted).  Therefore, consistent with existing
 Authority precedent, it is clear that, under the Statute, no course of