31:1294(120)MC - Order Denying Request for General Ruling -- 1988 FLRAdec MC

 31 FLRA NO. 120
    29 APR 1988


                                               Case No. 0-MC-12

              ORDER DENYING REQUEST FOR GENERAL RULING

I. Statement of the Case

     The Federal Service Impasses Panel (the Panel) has requested
the Authority to issue a ruling on the following issue:

     Under what circumstances, if any, is an employer obligated
     to maintain the status quo with respect to changes in personnel
     policies, practices, and working conditions during either
     bilateral negotiations or mediation of a labor agreement?

     For the reasons discussed below, we conclude that the issue
involved in the Panel's request is not appropriate for resolution
through the issuance of a general ruling. Accordingly, we deny
the request.

II. The Panel's Request

     The Panel states that labor organizations have filed
requests for Panel assistance without having first used the
services of the Federal Mediation and Conciliation Service (FMCS)
to resolve impasses. The Panel states further that its
investigations into these requests reveal that labor
organizations have filed the requests in order to delay
implementation of changes in working conditions. According to the
Panel, labor organizations have interpreted the Authority's
decision in Department of the Treasury, Bureau of Alcohol,
Tobacco and Firearms, 18 FLRA  466 (1985), as prohibiting an
agency from implementing a change in working conditions only when
the union involved has filed a request for Panel assistance.


     The Panel states that it is in a "difficult position" when
labor organizations "bypass the negotiation and mediation
process." The Panel asserts that it has two options in this
situation. First, it may hold the case in abeyance until the
parties have completed their efforts to reach agreement, a course
of action which may cause the parties to be confused as to
whether FMCS or the Panel has asserted jurisdiction. Second, the
Panel may decline to assert jurisdiction because its assistance
was requested prematurely. If it declines to assert jurisdiction,
the Panel states that the "union may be harmed" because the
agency could be relieved of its obligation to maintain the status
quo even though the union may subsequently request assistance
from FMCS.

     According to the Panel, the issuance of an Authority ruling
on its request would clarify the law, deter parties' efforts to
circumvent statutory procedures, and enhance opportunities for
voluntary settlements.

III. Discussion

     Section 2429.4 of the Authority's regulations provides that
the Panel "may refer for review and decision or general ruling by
the Authority any case involving a major policy issue that arises
in a proceeding before" it. For the reasons which follow, we
decline to issue the ruling requested by the Panel.

     Authority decisions concerning whether changes in working
conditions properly may be implemented by an agency have turned
on many different factors. In the case cited by the Panel--Bureau
of Alcohol, Tobacco and Firearms, 18 FLRA  466--for example, the
Authority stated (at page 469):

     (O)nce parties have reached an impasse in their negotiations
     and one party timely invokes the services of the Panel, the
     status quo must be maintained to the maximum extent possible
     i.e., to the extent consistent with the necessary functioning of
     the agency, in order to allow the Panel to take whatever action
     is deemed appropriate.

Under this standard, whether or not the status quo must be
maintained after parties have reached impasse depends on such
factors as (1) whether the agency provided the exclusive
representative with a reasonable opportunity to seek
third-party assistance, for example, U.S. customs Service, 16
FLRA  198 (1984); (2) whether the exclusive representative timely
requests third-party assistance, for example, Department of the
Navy, United States Naval Supply Center, San Diego, California,
31 FLRA  1088 (1988); and (3) whether implementation of the
change is consistent with the necessary functioning of the
agency, for example, U.S. Department of Housing and Urban
Development and U.S. Department of Housing and Urban Development,
Kansas City Region, Kansas City, Missouri, 23 FLRA  435 (1986).
These factors involve evaluations of the facts in each case.

     Whether or not the status quo must be maintained during
bilateral negotiations depends on a case-by-case analysis also.
Among the factors which may be addressed in these cases are: (1)
whether the change affects conditions of employment as defined in
section 7103(a)(14) of the Federal Service Labor - Management
Relations Statute, for example, Department of the Air Force,
Eielson Air Force Base, Alaska, 23 FLRA  605 (1986); (2) whether
the nature and extent of the effect or reasonably foreseeable
effect of the change gives rise to a bargaining obligation, for
example, Department of Health and Human Services, Social Security
Administration, 24 FLRA  403 (1986); (3) whether the exclusive
representative clearly and unmistakably waived its right to
negotiate, for example, Department of the Air Force, Scott Air
Force Base, Illinois, 5 FLRA  9 (1981); (4) whether the agency
has provided specific and clear notice to the exclusive
representative concerning the nature of the intended change, for
example, Department of the Army, Harry Diamond Laboratories,
Adelphi, Maryland, 9 FLRA  575 (1982); (5) whether the agency has
provided notice which is sufficient to enable the exclusive
representative to develop bargaining proposals, for example,
Bureau of Government Financial Operations Headquarters, 11 FLRA 
334 (1983); (6) whether the agency is obligated to bargain over
the substance of the change or the impact and implementation of
the change, for example, United States Department of Justice,
Immigration and Naturalization Service, Washington D.C., 31 FLRA 
145 (1988); (7) whether the exclusive representative timely
requests to bargain, for example Internal Revenue Service
(District, Region, National Office Unit), 14 FLRA  698 (1984);
(8) whether the exclusive representative's proposals are
negotiable, for example, Department of Health and Human Services,
Social Security Administration, Baltimore. Maryland, 31 FLRA  651
(1988); and (9) whether the agency was required to implement the
change  in order to correct an illegal practice, for
example, Department of the Interior, U.S. Geological Survey
conservation Division, Gulf of Mexico Region, Metairie,
Louisiana, 9 FLRA  543 (1982).

     Because resolution of issues concerning unilateral changes
in working conditions necessitates determinations on many factors
and the evaluation of the facts in each case, we find that we are
unable to grant the Panel's request that we issue a general
statement detailing the "circumstances" in which an agency is
"obligated to maintain the status quo with respect to changes in
personnel policies, practices, and working conditions(.)" We
conclude that our determinations on the issue posed must be made
on a case-by-case basis.

     Although we conclude that the Panel's request is too broad
to be answered in a general ruling, we urge the parties to
approach negotiations over changes in conditions of employment
with commitments to bilateral problem-solving and accommodation.
Of course, statutory and regulatory requirements concerning the
resolution of impasses must be observed. Those requirements
include the use of FMCS or other third-party mediation services
to resolve negotiation impasses. See 5 U.S.C. 7119(a) and (b); 5
C.F.R. 2470.2 (e), 2471.1. Consistent with these requirements,
our decision here should not be read in any way to mean that an
agency is free to implement a change in working conditions simply
because the parties' dispute is pending before FMCS.

IV. Conclusion

     For the foregoing reasons, the Panel's request for a general
ruling is denied.

Issued, Washington, D.C., April 29,  1988.

                         Jerry L. Calhoun,        Chairman

                         Jean McKee,                Member

                         FEDERAL LABOR RELATIONS AUTHORITY