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The decision of the Authority follows:
23 FLRA No. 57 PETITION FOR AMENDMENT OF RULES Case No 0-MC-10 DECISION ON PETITION FOR AMENDMENT OF RULES The Petition for Amendment of Rules was filed pursuant to 5 U.S.C. Section 553(e) and 5 U.S.C. Section 7134 and seeks an amendment to three provisions in the Authority's Rules and Regulations, specifically 5 CFR Sections 2423.5, 2424.5 and 2424.10. I. Establishment of Deadlines for Deciding Scope of Bargaining Issues Under Section 7117(c) Petitioner proposes the following amendment to section 2424.10(a) of the Authority's Rules and Regulations to provide a deadline for issuance of Authority negotiability decisions: Except in cases in which hearings are held, decisions in cases arising under 5 U.S.C. Section 7117(c) shall be issued within 60 days of the submission of the union's response to the agency's statement of position. In support of this proposed revision, the Petitioner relies on section 7117(c)(6) of the Federal Service Labor-Management Relations Statute (the Statute) which requires the Authority to expedite negotiability proceedings. The Authority rejects the proposal to establish a regulatory time limit for the issuance of negotiability decisions. While the timely resolution of negotiability disputes is essential to the effective administration of the Federal labor-management relations program, we do not believe that the establishment of a 60-day time limit applicable to all negotiability appeals will assist in accomplishing that goal. Negotiability cases vary substantially. The length of time it takes to decide a particular case depends upon such factors as the number and complexity of the proposals at issue; the relationship of the disputed proposals to other cases; the size and composition of our case docket; the need to give priority consideration to some cases; and the availability of resources. The assumption that all negotiability decisions could be issued within a fixed regulatory time limit would ignore the existence of all these factors and might well reduce the operational flexibility necessary to enable us to effectively carry out our other responsibilities under the Statute. The Authority has established goals which will significantly reduce the time taken to issue all of our decisions. Our immediate goal is to decide all cases within six months of their receipt. As of April 1, 1986, there were 512 cases that would be six months old on September 30, 1986; as of August 31, 1986 that figure was reduced to 232. We will continue our efforts until the goal is met. II. Recognition of the Relationship Between Scope of Bargaining Disputes and Failure to Bargain Disputes. The petitioner proposes that sections 2423.5 and 2424.5 of the Authority's Rules and Regulations should be replaced by the following: (a) If a union files an unfair labor practice charge over an agency's failure to bargain over a matter, and the union has already filed an appeal of the agency's allegation that the duty to bargain does not extend to that matter, a complaint shall be issued and the agency required to answer, but further proceedings concerning the unfair labor practice charge will be suspended pending decision on the duty to bargain issue. (b) If during the investigation of a charge that an agency has failed to bargain in good faith, the agency alleges as a defense that the duty to bargain in good faith does not extend to the matter sought to be bargained, the agency will be instructed to submit its allegation in writing to the union. If the union files a timely appeal of the allegation, a complaint on the unfair labor practice charge will be issued and an answer required, but further proceedings concerning the unfair labor practice charge will be suspended pending decision on the duty to bargain issue. (c) If at any time after issuance of the complaint the agency alleges as a defense that the duty to bargain in good faith does not extend to the matter sought to be bargained, the agency will be instructed to submit its allegation in writing to the union. If the union files a timely appeal of the allegation, further proceedings concerning the unfair labor practice charge will be suspended pending decision on the duty to bargain issue. (d) Upon issuance of the Authority's decision on the duty to bargain issue, the proceedings on the unfair labor practice case will be resumed in a manner consistent with that decision. The petitioner asserts that adoption of this proposal is necessary to allow for the pursuit of unfair labor practice remedies in situations where an agency simply refuses to negotiate over contract proposals on the basis that they are outside the duty to bargain. The Authority rejects this proposal for the following reasons. Sections 2423.5 and 2424.5 of the Authority's Rules and Regulations provide, in pertinent part, that where a labor organization files an unfair labor practice charge which involves a negotiability issue and also files a petition for review of the same negotiability issue, it is required to choose which procedure to pursue first. Cases which involve only 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 alleged unilateral changes in conditions of employment, must be processed exclusively under the negotiability procedures in part 2424 of the Authority's Rules and Regulations. In our view, these regulations are consistent with the language of sections 7117 and 7118 of the Statute, which specify separate procedures for resolving negotiability and unfair labor practice cases, respectively. They are also consistent with the legislative history of the Statute, which indicates that Congress considered but rejected a provision which would have required all negotiability disputes to be resolved in unfair labor practice proceedings. /*/ Unfair labor practice remedies are available in appropriate refusal to bargain situations, such as (1) where the refusal to negotiate is accompanied by unilateral changes in conditions of employment (Veterans Administration, Washington, D.C., 22 FLRA No. 69 (1986)); and (2) where an agency refuses to bargain over a proposal substantially identical to one which the Authority has previously determined to be negotiable under the Statute. See Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), affirmed sub nom. Department of the Air Force, United States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983); Department of Treasury, Internal Revenue Service, Memphis Service Center, 15 FLRA 829 (1984). We conclude that Petitioner's suggestion to provide for unfair labor practice remedies beyond these circumstances, such as where an agency is merely alleging -- in the absence of clear precedent to the contrary -- that a disputed proposal is nonnegotiable, would be contrary to the language and legislative history of the Statute as well as Authority precedent. III. Conclusion For the reasons stated above, the proposed amendments to the Authority's Rules and Regulations contained in the Petition for Amendment of Rules must be rejected. Accordingly, the Petition is denied. Issued, Washington, D.C., September 23, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) See 124 Cong. Rec. 29184 (1978), reprinted in Sub-comm. on Postal Personnel and Modernization of the House Comm. on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statue, Title VII of the Civil Service Reform Act of 1978, at 927 (Comm. print No. 96-7).