[ v16 p549 ]
The decision of the Authority follows:
16 FLRA No. 75 Case No. O-PS-27 DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR GUIDANCE The Authority received a request from the United States Customs Service to issue a statement of guidance with respect to the following question: 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 action is available to an agency for resolution of negotiability disputes in the circumstances presented by the Customs Service request. However, an agency may challenge the propriety of an interest arbitration award rendered pursuant to a Panel proceeding by filing exceptions to the award with the Authority under section 7122(a) of the Statute. See United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and Council 214, American Federation of Government Employees, AFL-CIO and United States Air Force, Air force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, AFL-CIO, 15 FLRA No. 27 (1984), appeal docketed sub nom. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, No. 84-3695 (6th Cir. August 22, 1984). Moreover, an agency can refuse to comply with an order of the FSIP, subjecting itself to a possible unfair labor practice complaint, and defend its action in an unfair labor practice proceeding on the ground that the Panel's order was inconsistent with applicable law, rule or regulation. See State of Nevada National Guard and National Association of Government Employees, Locals R12-13 and R12-145, 7 FLRA 245 (1981). Further, an agency head, under section 7114(c) of the Statute, may disapprove provisions imposed by the FSIP and incorporated into a collective bargaining agreement by the local parties pursuant to a Panel proceeding because those provisions are not in accordance with the Statute and other applicable laws, rules and regulations, thereby subjecting the agency to a possible negotiability appeal or an unfair labor practice charge. See Interpretation and Guidance, 15 FLRA No. 120 (1984), appeal docketed sub nom. American Federation of Government Employees v. FLRA, No. 84-1512 (D.C. Cir. October 12, 1984). Thus, the guidance sought by the Customs Service in its request is provided by existing Authority precedent. Therefore, upon consideration of the criteria of section 2427.5 of the Rules and Regulations governing the issuance of general statements of policy or guidance, the Authority concludes that the instant request should be, and hereby is, denied. Issued, Washington, D.C., November 19, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 2427.5 provides as follows: Sec. 2427.5 Standards governing issuance of general statements of policy or 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/ Since the FSIP does not possess the authority to resolve negotiability questions, it clearly follows that the FSIP cannot delegate to an arbitrator any authority to resolve such questions.