[Code of Federal Regulations]
[Title 5, Volume 3, Parts 1200 to end]
[Revised as of January 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2424]
[Page 390-394]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL
PART 2424--EXPEDITED REVIEW OF NEGOTIABILITY ISSUES
Subpart A--Instituting an Appeal
Sec.
2424.1 Conditions governing review.
2424.2 Who may file a petition.
2424.3 Time limits for filing.
2424.4 Content of petition; service.
2424.5 Selection of the unfair labor practice procedure or the
negotiability procedure.
2424.6 Position of the agency; time limits for filing; service.
2424.7 Response of the exclusive representative; time limits for
filing; service.
2424.8 Additional submissions to the Authority.
2424.9 Hearing.
2424.10 Authority decision and order; compliance.
Subpart B--Criteria for Determining Compelling Need for Agency Rules and
Regulations
2424.11 Illustrative criteria.
Authority: 5 U.S.C. 7134.
[[Page 391]]
Source: 45 FR 3511, Jan. 17, 1980, unless otherwise noted.
Subpart A--Instituting an Appeal
Sec. 2424.1 Conditions governing review.
The Authority will consider a negotiability issue under the
conditions prescribed by 5 U.S.C. 7117 (b) and (c), namely: If an agency
involved in collective bargaining with an exclusive representative
alleges that the duty to bargain in good faith does not extend to any
matter proposed to be bargained because, as proposed, the matter is
inconsistent with law, rule or regulation, the exclusive representative
may appeal the allegation to the Authority when--
(a) It disagrees with the agency's allegation that the matter as
proposed to be bargained is inconsistent with any Federal law or any
Government-wide rule or regulation; or
(b) It alleges, with regard to any agency rule or regulation
asserted by the agency as a bar to negotiations on the matter, as
proposed, that:
(1) The rule or regulation violates applicable law, or rule or
regulation of appropriate authority outside the agency;
(2) The rule or regulation was not issued by the agency or by any
primary national subdivision of the agency, or otherwise is not
applicable to bar negotiations with the exclusive representative, under
5 U.S.C. 7117(a)(3); or
(3) No compelling need exists for the rule or regulation to bar
negotiations on the matter, as proposed, because the rule or regulation
does not meet the criteria established in subpart B of this part.
Sec. 2424.2 Who may file a petition.
A petition for review of a negotiability issue may be filed by an
exclusive representative which is a party to the negotiations.
Sec. 2424.3 Time limits for filing.
The time limit for filing a petition for review is fifteen (15) days
after the date the agency's allegation that the duty to bargain in good
faith does not extend to the matter proposed to be bargained is served
on the exclusive representative. The exclusive representative shall
request such allegation in writing and the agency shall make the
allegation in writing and serve a copy on the exclusive representative:
Provided, however, That review of a negotiability issue may be requested
by an exclusive representative under this subpart without a prior
written allegation by the agency if the agency has not served such
allegation upon the exclusive representative within ten (10) days after
the date of the receipt by any agency bargaining representative at the
negotiations of a written request for such allegation.
Sec. 2424.4 Content of petition; service.
(a) A petition for review shall be dated and shall contain the
following:
(1) A statement setting forth the express language of the proposal
sought to be negotiated as submitted to the agency;
(2) An explicit statement of the meaning attributed to the proposal
by the exclusive representative including:
(i) Explanation of terms of art, acronyms, technical language, or
any other aspect of the language of the proposal which is not in common
usage; and
(ii) Where the proposal is concerned with a particular work
situation, or other particular circumstances, a description of the
situation or circumstances which will enable the Authority to understand
the context in which the proposal is intended to apply;
(3) A copy of all pertinent material, including the agency's
allegation in writing that the matter, as proposed, is not within the
duty to bargain in good faith, and other relevant documentary material;
and
(4) Notification by the petitioning labor organization whether the
negotiability issue is also involved in an unfair labor practice charge
filed by such labor organization under part 2423 of this subchapter and
pending before the General Counsel.
(b) A copy of the petition including all attachments thereto shall
be served on the agency head and on the principal agency bargaining
representative at the negotiations.
(c)(1) Filing an incomplete petition for review will result in the
exclusive representative being asked to provide
[[Page 392]]
the missing or incomplete information. Noncompliance with a request to
complete the record may result in dismissal of the petition.
(2) The processing priority accorded to an incomplete petition,
relative to other pending negotiability appeals, will be based upon the
date when the petition is completed--not the date it was originally
filed.
[45 FR 3511, Jan. 17, 1980, as amended at 46 FR 40674, Aug. 11, 1981; 51
FR 45753, Dec. 22, 1986]
Sec. 2424.5 Selection of the unfair labor practice procedure or the
negotiability procedure.
Where a labor organization files an unfair labor practice charge
pursuant to part 2423 of this subchapter which involves a negotiability
issue, and the labor organization also files pursuant to this part a
petition for review of the same negotiability issue, the Authority and
the General Counsel ordinarily will not process the unfair labor
practice charge and the petition for review simultaneously. Under such
circumstances, the labor organization must select under which procedure
to proceed. Upon selection of one procedure, further action under the
other procedure will ordinarily be suspended. Such selection must be
made regardless of whether the unfair labor practice charge or the
petition for review of a negotiability issue is filed first.
Notification of this selection must be made in writing at the time that
both procedures have been invoked, and must be served on the Authority,
the appropriate Regional Director and all parties to both the unfair
labor practice case and the negotiability case. Cases which solely
involve an agency's allegation that the duty to bargain in good faith
does not extend to the matter proposed to be bargained and which do not
involve actual or contemplated changes in conditions of employment may
only be filed under this part.
Sec. 2424.6 Position of the agency; time limits for filing; service.
(a) Within thirty (30) days after the date of the receipt by the
head of an agency of a copy of a petition for review of a negotiability
issue the agency shall file a statement--
(1) Withdrawing the allegation that the duty to bargain in good
faith does not extend to the matter proposed to be negotiated; or
(2) Setting forth in full its position on any matters relevant to
the petition which it wishes the Authority to consider in reaching its
decision, including a full and detailed statement of its reasons
supporting the allegation. The statement shall cite the section of any
law, rule or regulation relied upon as a basis for the allegation and
shall contain a copy of any internal agency rule or regulation so relied
upon. The statement shall include:
(i) Explanation of the meaning the agency attributes to the proposal
as a whole, including any terms of art, acronyms, technical language or
any other aspect of the language of the proposal which is not in common
usage; and
(ii) Description of a particular work situation, or other particular
circumstance the agency views the proposal to concern, which will enable
the Authority to understand the context in which the proposal is
considered to apply by the agency.
(b) A copy of the agency's statement of position, including all
attachments thereto shall be served on the exclusive representative.
[45 FR 3511, Jan. 17, 1980; 45 FR 8933, Feb. 11, 1980; 51 FR 45753, Dec.
22, 1986]
Sec. 2424.7 Response of the exclusive representative; time limits for
filing; service.
(a) Within fifteen (15) days after the date of the receipt by an
exclusive representative of a copy of an agency's statement of position
the exclusive representative shall file a full and detailed response
stating its position and reasons for:
(1) Disagreeing with the agency's allegation that the matter, as
proposed to be negotiated, is inconsistent with any Federal law or
Government-wide rule or regulation; or
(2) Alleging that the agency's rules or regulations violate
applicable law, or rule or regulation or appropriate authority outside
the agency; that the rules or regulations were not issued by the agency
or by any primary national subdivision of the agency, or otherwise
[[Page 393]]
are not applicable to bar negotiations under 5 U.S.C. 7117(a)(3); or
that no compelling need exists for the rules or regulations to bar
negotiations.
(b) The response shall cite the particular section of any law, rule
or regulation alleged to be violated by the agency's rules or
regulations; or shall explain the grounds for contending the agency
rules or regulations are not applicable to bar negotiations under 5
U.S.C. 7117(a)(3), or fail to meet the criteria established in subpart B
of this part or were not issued at the agency headquarters level or at
the level of a primary national subdivision.
(c) A copy of the response of the exclusive representative including
all attachments thereto shall be served on the agency head and on the
agency's representative of record in the proceeding before the
Authority.
[45 FR 3511, Jan. 17, 1980; 45 FR 8933, Feb. 11, 1980]
Sec. 2424.8 Additional submissions to the Authority.
The Authority will not consider any submission filed by any party,
whether supplemental or responsive in nature, other than those
authorized under Secs. 2424.2 through 2424.7 unless such submission is
requested by the Authority; or unless, upon written request by any
party, a copy of which is served on all other parties, the Authority in
its discretion grants permission to file such submission.
Sec. 2424.9 Hearing.
A hearing may be held, in the discretion of the Authority, before a
determination is made under 5 U.S.C. 7117(b) or (c). If a hearing is
held, it shall be expedited to the extent practicable and shall not
include the General Counsel as a party.
Sec. 2424.10 Authority decision and order; compliance.
(a) Subject to the requirements of this subpart the Authority shall
expedite proceedings under this part to the extent practicable and shall
issue to the exclusive representative and to the agency a written
decision on the allegation and specific reasons therefor at the earliest
practicable date.
(b) If the Authority finds that the duty to bargain extends to the
matter proposed to be bargained, the decision of the Authority shall
include an order that the agency shall upon request (or as otherwise
agreed to by the parties) bargain concerning such matter. If the
Authority finds that the duty to bargain does not extend to the matter
proposed to be negotiated, the Authority shall so state and issue an
order dismissing the petition for review of the negotiability issue. If
the Authority finds that the duty to bargain extends to the matter
proposed to be bargained only at the election of the agency, the
Authority shall so state and issue an order dismissing the petition for
review of the negotiability issue.
(c) When an order is issued as provided in paragraph (b) of this
section, the agency or exclusive representative shall report to the
appropriate Regional Director within a specified period failure to
comply with an order that the agency shall upon request (or as otherwise
agreed to by the parties) bargain concerning the disputed matter. If the
Authority finds such a failure to comply with its order, the Authority
shall take whatever action it deems necessary, including enforcement
under 5 U.S.C. 7123(b).
[45 FR 48576, July 21, 1980; 45 FR 49905, July 28, 1980; 46 FR 12191,
Feb. 13, 1981]
Subpart B--Criteria for Determining Compelling Need for Agency Rules and
Regulations
Sec. 2424.11 Illustrative criteria.
A compelling need exists for an agency rule or regulation concerning
any condition of employment when the agency demonstrates that the rule
or regulation meets one or more of the following illustrative criteria:
(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national subdivision in
a manner which is consistent with the requirements of an effective and
efficient government.
[[Page 394]]
(b) The rule or regulation is necessary to insure the maintenance of
basic merit principles.
(c) The rule or regulation implements a mandate to the agency or
primary national subdivision under law or other outside authority, which
implementation is essentially nondiscretionary in nature.