Following are rules proposed by the FLRA designed to speed up its processing of disputes between agencies and unions over what is negotiable, including deadlines for unions to request the FLRA’s intervention and for agencies to respond.
The Federal Service Labor-Management Relations Statute (the Statute) authorizes the FLRA to adjudicate a number of matters related to federal sector labor-management relations, including negotiability appeals. Specifically, the Statute provides that “if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection.” 5 U.S.C. 7117(c)(1). The Statute provides further that “[t]he Authority shall expedite proceedings under this subsection to the extent practicable and shall issue . . . a written decision on the allegation and specific reasons therefor at the earliest practicable date.” 5 U.S.C. 7117(c)(6). The proposed changes are intended to allow the Authority to expedite negotiability appeal proceedings to allow for a written decision at the earliest practicable date.
Analysis of the Regulations
Section 2424.2 Definitions
Section 2424.2 clarifies the definition of a “bargaining obligation dispute” and provides an additional example of such a dispute. The section also changes the definition of Alternative Dispute Resolution to reflect the current practice. The section adds several examples of a “negotiability dispute” to provide a more complete, but not necessarily exhaustive, list. The section proposes removing the definition of “severance” because it is unclear whether providing for severance of a proposal or provision adds value to the adjudicatory process. Other changes to the regulations will allow for FLRA consideration of particular matters when those matters are submitted as distinct proposals or provisions. However, as discussed in connection with section 2424.22, the Authority is also considering a second option that would limit the opportunities for severance, rather than eliminating it completely.
Section 2424.10 is amended to change the heading to “Alternative Dispute Resolution” and is clarified to explain that the use of alternative dispute resolution is at the discretion of the FLRA.
Section 2424.11 is amended so paragraph (a) requires an exclusive representative to put in writing its request that an agency provide a written allegation concerning the duty to bargain. Paragraph (b) is amended to obligate an agency to respond within ten (10) days to an exclusive representative’s written request for a written allegation concerning the duty to bargain. The section clarifies that if an exclusive representative chooses to file a petition based on an unrequested written allegation concerning the duty to bargain, then the petition must be filed within fifteen (15) days after the date of service of the unrequested written allegation.
Section 2424.21 is amended to state that if an agency fails to respond to a written request for a written allegation within ten (10) days of the request, then the exclusive representative may file a petition within the next sixty (60) days. If the agency serves a written allegation on the exclusive representative more than ten (10) days after receiving a written request for such allegation, and a petition has not yet been filed, then the petition must be filed within fifteen (15) days of the service of that allegation. If the exclusive representative files a petition after the expiration of the ten (10) day period, and the agency subsequently serves a written allegation on the exclusive representative, then the FLRA will consider the appeal based upon the petition filed prior to the allegation but may allow the exclusive representative to amend the petition. However, the exclusive representative may not file an additional petition. The FLRA is seeking to prevent negotiability disputes from lingering unresolved for a potentially unlimited period of time, to avoid the inefficiencies of adjudicating stale disputes, and to reduce the potential surprise of a negotiability petition being filed long after a written request for an allegation of nonnegotiability was served. The FLRA seeks comments on whether the proposed language would meet those objectives, and the FLRA welcomes comments with alternative proposals to meet those objectives.
Section 2424.22 adds a new paragraph to allow for division of matters into proposals or provisions. Although the FLRA is proposing the revised subsection wording in this notice, the FLRA is also considering another possible option. It requests comments on the advantages and disadvantages of both options:
Option 1. Eliminating severance altogether and replacing it with the proposed wording in this notice.
Option 2. Allowing only one point in the filing process at which an exclusive representative may request severance. Under this option, the FLRA seeks comments on: (a) When during the filing process this opportunity to request severance should occur; and (b) the advantages and disadvantages of automatically granting all timely severance requests in order to reduce the burden of litigating and resolving these requests. If the FLRA were to automatically grant all timely requests, then: (1) The exclusive representative would bear the burden of requesting severance in a manner that allowed each severed portion to stand alone, and the burden of explaining the meaning and operation of each portion; (2) even if the exclusive representative failed to meet those burdens, the FLRA would automatically grant severance as requested; and (3) where the exclusive representative failed to meet those burdens, after automatically granting severance, the FLRA would find the severed portions outside the duty to bargain, based on the failure to provide an adequate record.
Section 2424.22 also requires greater specificity in what must be included in a petition and requires the submission of relevant documents. The section is also amended to require that an exclusive representative respond in a petition to any specific arguments that are set forth in an agency’s written allegation concerning the duty to bargain or an agency head’s disapproval of an agreement.
Section 2424.23 is amended to clarify that the decision to hold a post-petition conference is at the discretion of the FLRA and that, regardless of whether one does occur, the parties must observe all filing deadlines. The FLRA seeks comments on the most appropriate juncture, within the stages of pleading, for the post-petition conference to occur, in cases where a conference is held. The section is also amended to clarify that the FLRA may take other appropriate action, in the exercise of its discretion, to aid in decision making, regardless of whether a post-petition conference occurs.
Section 2424.24 clarifies the content of the agency’s statement of position, requires greater specificity about certain matters within the statement of position, and requires the submission of relevant documents.
Section 2424.25 clarifies what is to be included in the exclusive representative’s response and removes surplus language. This section is amended to limit the content of the response to matters raised for the first time in the agency’s statement of position. Because changes to section 2424.22 would require the exclusive representative to address, in its petition, specific arguments in an agency’s written allegation concerning the duty to bargain or an agency head’s disapproval of an agreement, the exclusive representative could not wait until filing its response under section 2424.25 to address those matters. Any facts or arguments that should be included in the petition in accordance with the changes to section 2424.22, but are not included in the petition, would be barred from consideration in the exclusive representative’s response under section 2424.25.
Section 2424.26 is amended to shorten the time period for the agency’s submission of a reply to the exclusive representative’s response to ten (10) days and specifies the content to be included. The section also reorganizes the content requirements.
Section 2424.27 removes the time period for filing additional submissions authorized in the discretion of the FLRA. When authorizing additional submissions, the FLRA will establish the deadline for their submission.
Section 2424.30, in paragraph (a), clarifies when the deadline begins to run for refiling a petition that was previously dismissed without prejudice by the FLRA in the case of a related grievance that was administratively resolved. The FLRA requests comments on whether the proposed clarification accurately captures all of the scenarios under which a grievance mentioned in this subsection could be administratively resolved. Subsection (b) of the section clarifies the process by which the FLRA will resolve matters under various factual scenarios.
Section 2424.31 is amended to include a new heading that more accurately reflects its contents, and to make other minor wording changes.
Section 2424.32 is amended to highlight that the parties’ failures to explain their positions thoroughly could lead to an adverse ruling, and that assessing the consequences of such a failure (e.g., waiver, concession) is within the discretion of the FLRA.
Section 2424.40 is amended to make conforming changes to reflect the proposed removal of severance. The section also proposes altering the content of an FLRA order where it finds a duty to bargain by deleting the reference to a “request” to bargain concerning the proposal. The FLRA seeks comments on whether the “request” wording serves a useful purpose. The wording may imply that the burden is on an exclusive representative to re-start negotiations following a negotiability decision, and that the agency is not obligated to take any action until the exclusive representative requests that the agency do so.
Section 2424.41 proposes altering the description of noncompliance with an FLRA order by deleting wording that is already present in section 2424.40. As with the proposed change to section 2424.40, the FLRA seeks comments on whether this wording serves a useful purpose or whether it is duplicative of the wording in 2424.40. In addition, this section proposes adding a deadline of thirty (30) days for an exclusive representative to report the failure to comply with an order, following the expiration of the 60-day period under 5 U.S.C. 7123(a).
Section 2424.50 is amended to explain the criteria in the section are illustrative and there may be other, or more appropriate, examples of an agency rule or regulation for which there is a compelling need. The FLRA solicits specific examples of an agency rule or regulation for which there is a compelling need and appropriate illustrative criteria that would establish a compelling need for the rule or regulation.