51:0409(37)PS - - General Counsel of the FLRA - - 1995 FLRAdec PS - - v51 p409
[ v51 p409 ]
The decision of the Authority follows:
51 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
ORDER DENYING REQUEST FOR A GENERAL RULING
October 31, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
In accordance with section 2429.4 of the Authority's Regulations,(1) the General Counsel has requested the Authority to issue a ruling on the following issue:
Are matters and proposals which are within the bargaining subjects set forth in section 7106(b)(1) of the Statute negotiable at the election of agency management at the level of exclusive recognition even though those matters and proposals also may be within the subjects set forth in section 7106(a) of the Statute?
G.C. Request at 1.
For the reasons discussed below, we conclude that the issue involved in the General Counsel's request is not appropriate for resolution through the issuance of a general ruling. Accordingly, we deny the request for a general ruling. The issue involved in the General Counsel's request is addressed by the Authority in its decision in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA No. 36 (1995) (VA Medical Center), issued today.
The General Counsel explains that his request was prompted by Executive Order 12871, which provides, in section 2(d), that agency heads shall "negotiate over subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same," and by the court's decision in Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) (Montana ACT). In Montana ACT, the United States Court of Appeals for the District of Columbia Circuit reversed and remanded the Authority's dismissal of an unfair labor practice complaint. The unfair labor practice complaint alleged that the Activity violated the Statute by disapproving a contract provision and by directing the Activity to repudiate that provision. The disapproved provision gave employees the option to wear either a military uniform or agreed-upon standard civilian attire. National Guard Bureau, Alexandria, Virginia, 45 FLRA 506 (1992) (National Guard Bureau). In National Guard Bureau, the Authority determined that the agency head properly could disapprove the contract provision because it directly interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Although the Authority acknowledged that the disputed provision also concerned the methods and means of performing the Activity's work under section 7106(b)(1) of the Statute, the Authority rejected the Union's claim that section 7106(b)(1) is an exception to section 7106(a).
In reversing and remanding the Authority's decision, the District of Columbia Circuit held that where a matter falls within subsection (b)(1) of section 7106, even if the matter also affects a right under subsection (a), the matter is subject to negotiation at the election of the agency. Montana ACT, 22 F.3d at 1155.(2)
The General Counsel's request for a general ruling stated that the mandate in the Executive Order to negotiate over subsection (b)(1) matters, and the court's holding in Montana ACT, has rendered the relationship between subsections (a) and (b)(1) a major policy issue. According to the General Counsel, the issue has arisen in the context of numerous cases.
III. The Federal Register Notice
On March 16, 1995, in response to the General Counsel's request, the Authority issued a Federal Register notice soliciting comments from interested persons on the following questions to assist the Authority in determining whether to issue a ruling on the issue referred by the General Counsel:
1. Are the matters and proposals which are within the bargaining subjects set forth in section 7106(b)(1) of the Statute negotiable at the election of agency management at the level of exclusive recognition even though those matters and proposals also may be within the subjects set forth in section 7106(a) of the Statute?
2. What is the proper meaning to be accorded the phrase in section 7106(a) stating that it is "[s]ubject to subsection (b)," as it relates to subsection (b)(1)?
3. What is the proper meaning to be accorded the phrase in 7106(b) stating that "[n]othing in this section shall preclude any agency and any labor organization from negotiating--"? For example, does it operate with respect to section 7106(b)(1) as a "clarification" or a "limitation," a distinction raised by the court in American Federation of Government Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1186-87 (D.C. Cir. 1983) (dicta)?
4. What matters or proposals, if any, within the subjects set forth in section 7106(b)(1) are also not within (i.e., do not also affect) one or more subjects set forth in section 7106(a)?
5. Does the relationship between section 7106(a) and (b)(1) depend on the particular section 7106(a) subject which is affected?
6. Does the relationship between section 7106(a) and (b)(1) depend on whether parties are bargaining over proposals for an agreement or whether an agency head is exercising authority under section 7114(c) of the Statute to review an agreement already reached?
60 Fed. Reg. 14,285 (1995).
The Authority received comments from 10 unions, 8 agencies, 3 individuals and the General Counsel. The comments have been carefully considered, but are not summarized here. We note that, in general, 9 comments opposed the issuance of a general ruling, 10 comments favored such a ruling, and 3 comments either did not express, or were unclear about, their preference on this question.
The Authority has carefully considered the General Counsel's request and the comments received in response to the Federal Register announcement, and has decided to address the question raised in that request in a pending negotiability case. As the Authority previously recogni