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U.S. Federal Labor Relations Authority

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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
 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
                                       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.