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U.S. Federal Labor Relations Authority

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United States Department of Veterans Affairs (Petitioner)

71 FLRA No. 87                                                                                                                                                                













December 13, 2019




Before the Authority:  Colleen Duffy Kiko, Chairman, and

Ernest DuBester and James T. Abbott, Members


  1.              Statement of the Case


                Pursuant to § 2427.2 of the Authority’s Regulations,[1] the Petitioner requests that the Authority issue a general statement of policy or guidance clarifying the meaning of the phrase “adversely affected” in § 7106(b)(3) of the Federal Service Labor‑Management Relations Statute (the Statute).[2] 


II.            Background


                Under § 7106(b)(3) of the Statute, parties must bargain over “appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.”[3]  According to the Petitioner, the Authority has expansively interpreted “adversely affected,” which results in “extensive and time‑consuming negotiations before agencies can exercise [the] management rights”[4] set forth in § 7106(a) of the Statute.[5]


                The Petitioner acknowledges that the Authority uses the long-established analysis set forth in NAGE, Local R-14-87[6] to determine whether a proposal is within the duty to bargain under § 7103(b)(3).  However, the Petitioner asks the Authority to change its analytical framework to create a “rebuttable presumption” that the exercise of a management right under § 7106(a) of the Statute does not “adversely affect” employees.[7]  The Petitioner explains that, under its proposed standard, a labor organization could only rebut the presumption by presenting evidence – rather than merely asserting – that any proposal is a response “to actual adverse effects directly caused by the exercise of [a] management right[].”[8]  The Petitioner posits that the Authority’s adoption of such a requirement would permit agencies to exercise their management rights “immediately” without bargaining.[9]


III.          Discussion


                Upon careful consideration of the Petitioner’s request, we find that it is not appropriate for resolution through the issuance of a general ruling.[10]  These questions would most appropriately be addressed in the context of the facts and circumstances presented by parties involved in an actual dispute.[11]  Accordingly, we deny the request.


IV.          Order


We deny the Petitioner’s request.



[1] 5 C.F.R. § 2427.2.

[2] Petitioner’s Request (Request) at 1.

[3] 5 U.S.C. § 7106(b)(3).

[4] Request at 2.

[5] 5 U.S.C. § 7106(a).

[6] 21 FLRA 24 (1986).

[7] Request at 4.

[8] Id. at 5.

[9] Id.

[10] 5 C.F.R. § 2427.5.

[11] E.g., Gen. Counsel, 51 FLRA 409, 412 (1995) (citing Order Denying Request for Gen. Ruling, 14 FLRA 757, 758 (1984); Order Denying Request for a Gen. Ruling, 9 FLRA 823, 824 (1982)).