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The decision of the Authority follows:
11 FLRA NO. 107
Case No. 0-PS-23
INTERPRETATION AND GUIDANCE
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.
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.
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
Issued, Washington, D.C., March 17, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
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Footnote 1 The Panel, the National Federation of Federal Employees (NFFE) and the Department of the Interior made submissions to the Authority in response to NTEU's request for a general statement of policy. Pursuant to section 2429.26 of the Authority's Rules, these submissions have been considered herein.
Footnote 2 This section provides, in relevant part, as follows: 2471.6 Investigation of request; Panel recommendation and assistance; approval of binding arbitration. (a) Upon receipt of a request for consideration of an impasse, the Panel or its designee will promptly conduct an investigation, consulting when necessary with the parties and with any mediation service utilized. After due consideration, the Panel shall either: (1) Decline to assert jurisdiction in the event that it finds that no impasse exists or that there is other good cause for not asserting jurisdiction, in whole or in part, and so advise the parties in writing, stating its reasons; or (2) Recommended to the parties procedures, including but not limited to arbitration, for the resolution of the impasse and/or assist them in resolving the impasse through whatever methods and procedures the Panel considers appropriate.
Footnote 3 Section 7119(c)(5)(A)(ii) provides: 7119. Negotiation impasses; Federal Service Impasses Panel (5)(A) The Panel or its designee shall promptly investigate any impasse presented to it under subsection (b) of this section. The Panel shall consider the impasse and shall either-- (ii) assist the parties in resolving the impasse through whatever methods and procedures, including factfinding and recommendations, it may consider appropriate to accomplish the purpose of this section.
Footnote 4 Section 7119(c)(5)(B)(iii) provides: (5)(B) If the parties do not arrive at a settlement after assistance by the panel under subparagraph (A) of this paragraph, the Panel may-- (iii) take whatever action is necessary and not inconsistent with this chapter to resolve the impasse.
Footnote 5 It is well established that the impasse resolution procedures of the Panel operate as one aspect of the collective bargaining process. International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 10 FLRA No. 39 at page 2.
Footnote 6 See, e.g., Department of the Treasury, Internal Revenue Service, Office of the Regional Director of Appeals, North Atlantic Region, New York, New York and Local 15, American Federation of Government Employees, AFL-CIO, Case No. 82 FSIP 48 (June 15, 1982), Panel Release No. 205; and Department of the Army, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and Local 2022, American Federation of Government Employees, AFL-CIO, Case No. 81 FSIP 75 (August 4, 1981), Panel Release No. 193.