Rule2023-19269
Negotiability Proceedings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 12, 2023
Effective
October 12, 2023
Issuing agencies
Federal Labor Relations Authority
Abstract
The Federal Labor Relations Authority (FLRA) is revising the regulations governing negotiability appeals to better "expedite proceedings," consistent with Congress's direction. The final rule is designed to benefit the FLRA's parties by clarifying various matters and streamlining the adjudication process for negotiability appeals, resulting in more timely decisions.
Full Text
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[Federal Register Volume 88, Number 175 (Tuesday, September 12, 2023)]
[Rules and Regulations]
[Pages 62445-62460]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19269]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 /
Rules and Regulations
[[Page 62445]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2424
Negotiability Proceedings
AGENCY: Federal Labor Relations Authority.
ACTION: Final rule.
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SUMMARY: The Federal Labor Relations Authority (FLRA) is revising the
regulations governing negotiability appeals to better ``expedite
proceedings,'' consistent with Congress's direction. The final rule is
designed to benefit the FLRA's parties by clarifying various matters
and streamlining the adjudication process for negotiability appeals,
resulting in more timely decisions.
DATES:
Effective Date: This rule is effective October 12, 2023.
Applicability Date: This part applies to all petitions for review
filed on or after October 12, 2023.
FOR FURTHER INFORMATION CONTACT: Thomas Tso, Solicitor, at
<a href="/cdn-cgi/l/email-protection#126666617d52747e60733c757d64"><span class="__cf_email__" data-cfemail="067272756946606a746728616970">[email protected]</span></a> or at (771) 444-5779.
SUPPLEMENTARY INFORMATION: The FLRA proposed revisions to part 2424 of
the Authority's Regulations concerning negotiability proceedings. The
proposed rule was published in the Federal Register, and public
comments were solicited on the proposed changes (84 FR 70439) (Dec. 23,
2019). After the initial public comment period closed, the FLRA
reopened the comment period for an additional round of public feedback
(85 FR 4913) (Jan. 28, 2020). (From this point forward, the printed
statements at 84 FR 70439 and 85 FR 4913 are collectively referred to
as ``the proposal notices.'') Comments were received from unions,
agencies, labor-management practitioners, and other individuals. All
timely comments have been considered prior to publishing the final
rule, and virtually all comments, including all significant comments,
are addressed with specificity below. Changes from the proposed rule
are also discussed below, and where those changes relate to specific
comments, the connection between the changes and the comments is noted.
Significant Changes
In Sec. Sec. 2424.22 and 2424.25, the final rule changes the
procedures through which an exclusive representative may divide or
sever a proposal or provision into distinct parts, in order to seek
separate negotiability determinations on particular matters standing
alone. Section 2424.10 of the final rule does not remove references to
the Collaboration and Alternative Dispute Resolution Program. Section
2424.21 of the final rule does not require an exclusive representative
to file a petition for review within sixty days after the expiration of
the deadline for an agency to respond to a request for a written
allegation concerning the duty the bargain. Section 2424.22 of the
final rule does not require an exclusive representative to respond, in
a petition for review, to specific claims in an agency's allegation
concerning the duty to bargain or an agency head's disapproval. Section
2424.26 of the final rule does not shorten the time limit for filing an
agency's reply from fifteen days to ten days. Section 2424.41 of the
final rule does not require an exclusive representative to report to a
Regional Director an agency's failure to comply with a negotiability
decision and order within thirty days after the expiration of the 60-
day period for seeking judicial review. Unlike the potentially broad
revisions contemplated in the proposal notices, the final rule leaves
Sec. 2424.50 of the Authority Regulations (concerning compelling need)
mostly unchanged.
Miscellaneous Comments and Responses
Some of the comments responding to the proposal notices did not
concern a specific section of the proposed rules. One commenter opposed
any changes to existing negotiability procedures because, in the
commenter's view, the process could be streamlined by employing
sufficient staff. As this comment was not germane to the proposed rule,
it did not influence the final rule.
The Office of Personnel Management (OPM) requested that the final
rule include a provision requiring that, if a petition for review
raises a negotiability dispute concerning a statute that OPM
administers, an executive order that OPM administers, or a government-
wide regulation that OPM promulgated, then the Authority must formally
notify OPM and provide OPM an opportunity to intervene in the case.
Section 7105(i) of the Federal Service Labor-Management Relations
Statute (the Statute) states that ``the Authority may request from the
Director of [OPM] an advisory opinion concerning the proper
interpretation of rules, regulations, or policy directives issued by
[OPM] in connection with any matter before the Authority.'' 5 U.S.C.
7105(i) (emphasis added). Admittedly, Section 7105(i) does not address
the full scope of the matters raised in OPM's comment--such as statutes
or executive orders that OPM administers. However, regarding
government-wide regulations that OPM issued, Section 7105(i) indicates
that Congress did not think it necessary either to require the
Authority to seek OPM's views in every case, or to provide OPM an
opportunity to intervene in cases. In addition, when Congress thought
OPM should have the right to intervene in a particular class of civil-
service cases--for example, certain cases before the Merit Systems
Protection Board involving the ``interpretation or application of any
civil[-]service law, rule, or regulation, under the jurisdiction of
[OPM]''--Congress provided for intervention in statutory text. 5 U.S.C.
7701(d)(1). Further, nothing in the Statute, including Section 7105(i),
prevents the Authority from requesting an advisory opinion from OPM on
statutes or executive orders that OPM administers, where such an
opinion would aid the Authority in its decision making. Moreover, Sec.
2429.9 of the Authority's Regulations allows any interested person to
petition for the opportunity to present views as amicus curiae in a
particular case, and OPM may petition to present its views through that
provision. 5 CFR 2429.9.
For these reasons, the final rule does not include a provision
concerning notification of, and intervention by, OPM in particular
cases.
Sectional Analyses, Comments, and Responses
The regulatory analyses provided in the proposal notices about
wording that
[[Page 62446]]
has not changed from the proposed rule to the final rule should be
understood to apply to the unchanged portions of the final rule. Such
previous analyses will not be repeated here, although they continue to
apply. Further sectional analyses of the amendments and revisions to
part 2424, Negotiability Proceedings--including public comments and
responses to those comments--follow:
Part 2424--Negotiability Proceedings
Section 2424.1
None of the public comments addressed Sec. 2424.1. The final rule
is the same as the proposed rule.
Section 2424.2
Comments and Responses
One commenter stated that the sentence listing examples of
bargaining obligation disputes should say that such disputes include,
but may not be limited to, the specified examples. This requested
change is unnecessary because the list of examples does not purport to
be exhaustive. The same commenter asked that the examples be joined by
``or'' rather than ``and.'' The commenter correctly notes that each
example is sufficient, on its own, to establish a bargaining obligation
dispute. However, this requested change is unnecessary because each
example is part of a group of similar terms, so using ``and'' is
appropriate. Therefore, these requested changes were not adopted.
Another commenter requested that the examples of bargaining
obligation disputes be expanded from the proposed rule so that the
examples still included situations where parties disagree about whether
a change to conditions of employment was de minimis. As discussed in
connection with Sec. 2424.2(a)(2) below, this requested change is
incorporated into the final rule.
A third commenter stated that it does not interpret the changes to
the examples in this section to alter the legal definition of the
defined terms. To the extent that the commenter means that the changes
to examples are intended to better illustrate the existing definitions
of these terms, rather than to change the operative definitions of the
terms, the commenter is correct. This commenter also objected to adding
executive orders to the examples of sources of negotiability disputes.
As explained further below in connection with Sec. 2424.2(c),
executive orders are not included among the examples of sources of
negotiability disputes in the final rule. This commenter also asked
that, where government-wide rules or regulations are listed as sources
of negotiability disputes, the rule be amended to acknowledge that
government-wide rules or regulations can be contrary to statutory law.
However, this requested change is unnecessary because it is irrelevant
to the existence of a negotiability dispute. Regardless of whether a
government-wide rule or regulation is consistent with, or contrary to,
a statute, a disagreement between parties about whether a proposal or
provision is consistent with a government-wide rule or regulation will
establish that a negotiability dispute exists.
Further Analysis
As in the proposed rule, Sec. 2424.2(a) of the final rule
clarifies the definition of a ``bargaining obligation dispute.''
However, in response to a comment seeking further examples, Sec.
2424.2(a) of the final rule includes two additional examples, rather
than (as in the proposed rule) one additional example. Specifically,
Sec. 2424.2(a)(2) of the final rule identifies, as examples of
bargaining obligation disputes, disagreements concerning agency claims
that bargaining is not required ``because there has not been a change
in bargaining-unit employees' conditions of employment,'' see, e.g.,
NFFE, IAMAW, Fed. Dist. 1, Fed. Loc. 1998, 69 FLRA 586, 589 (2016)
(analyzing agency's contested claim that it made no changes to
conditions of employment as a bargaining obligation dispute) (Member
Pizzella concurring in part and dissenting in part on other grounds),
as well as claims that bargaining is not required ``because the effect
of the change is de minimis,'' e.g., AFGE, Loc. 2139, Nat'l Council of
Field Lab. Locs., 61 FLRA 654, 656 (2006) (``The claim that a change in
employees' conditions of employment is de minimis is a bargaining
obligation dispute, rather than a negotiability dispute.''). Section
2424.2(a)(3) of the final rule is the same as the proposed rule and
identifies, as an example of a bargaining obligation dispute, a
disagreement about an agency claim that ``[t]he exclusive
representative is attempting to bargain at the wrong level of the
agency.'' Unlike the proposed rule, the final rule does not revise the
text currently located at 5 CFR 2424.2(b).
Section 2424.2(c) of the final rule differs from the proposed rule
in three respects. First, whereas Sec. 2424.2(c)(2) of the proposed
rule identified, as an example of a negotiability dispute, a
disagreement concerning whether a proposal or provision ``[d]irectly
affects bargaining-unit employees' condition of employment,'' Sec.
2424.2(c)(2) of the final rule removes the word ``[d]irectly.'' The
word ``[d]irectly'' was removed because a negotiability dispute exists
when there is a disagreement about whether a proposal or provision has
any effect on bargaining-unit employees' conditions of employment--not
only when there is disagreement about direct effects. See, e.g., NAGE,
Loc. R1-144, 43 FLRA 1331, 1333 (1992); id. at 1335 (agency argued that
proposals did not concern conditions of employment of bargaining-unit
employees), 1350-51 (Authority found four proposals ``nonnegotiable''
because they did not concern the conditions of employment of
bargaining-unit employees). Second, unlike Sec. 2424.2(c) of the
proposed rule, Sec. 2424.2(c) of the final rule does not include
executive orders among the examples of sources of negotiability
disputes. However, the omission of this example does not prohibit
parties from arguing that a proposal's or provision's inconsistency
with an executive order gives rise to a negotiability dispute. Third,
because the executive-order example was removed, Sec. 2424.2(c)(7) of
the proposed rule has become Sec. 2424.2(c)(6) of the final rule, and
Sec. 2424.2(c)(8)(i) through (v) of the proposed rule have become
Sec. 2424.2(c)(7)(i) through (v) of the final rule. The remaining
changes to the text currently located at 5 CFR 2424.2(c) are the same
in the final rule as in the proposed rule.
Section 2424.2(e) and (f) are the same in the final rule as in the
proposed rule.
The proposal notices explained that, although the proposed rule
contained revised wording that would ``[e]liminat[e] severance
altogether,'' ``the FLRA [wa]s also considering another possible
option'' that would not completely eliminate severance. 84 FR at 70439.
Unlike the proposed rule, the final rule does not remove the existing
definition of ``[s]everance,'' located at 5 CFR 2424.2(h). Because the
final rule does not remove the ``[s]everance'' definition, the final
rule also does not redesignate the definition of ``[w]ritten allegation
concerning the duty to bargain'' as Sec. 2424.2(h)--which is a change
from the proposed rule. Under the final rule, the definition of
``[w]ritten allegation concerning the duty to bargain'' maintains its
existing location at 5 CFR 2424.2(i).
Section 2424.10
Comments and Responses
Three commenters opposed adding to this section new wording that
specifies that Collaboration and Alternative Dispute Resolution (CADR)
assistance is provided at the discretion of the
[[Page 62447]]
Authority. The final rule does not include the wording that assistance
is provided ``in the discretion of the Authority''; however, the
Authority disagrees with the commenters' assertions that, as long as
the parties agree to CADR assistance, the decision about whether a
dispute enters the CADR Program should not be at the Authority's
discretion. For example, the Authority may not have resources available
to provide CADR assistance every time it is requested. If the Authority
declines to grant CADR assistance, that action in no way prevents
parties from agreeing to seek alternative dispute resolution services
from entities outside the FLRA--such as the Federal Mediation and
Conciliation Service.
One commenter appeared to believe that, under the proposed rule,
after a petition for review had been filed, the Authority could require
the parties to participate in alternative dispute resolution without
their consent. To the contrary, CADR assistance will continue to
require the consent of the parties.
Another commenter expressed reservations about an addition in the
proposed rule that stated that CADR assistance would be provided as
resources permit. Because the FLRA is unable to offer any services
beyond the capacity of its available resources, this wording remains
part of the final rule, as discussed further below.
A third commenter expressed disappointment that the proposed rule
removed references to the CADR Program. As explained further below, the
final rule does not remove those references.
Further Analysis
Unlike the proposed rule, the heading of Sec. 2424.10 in the final
rule will remain the same as the existing heading of 5 CFR 2424.10. In
another variance from the proposed rule, Sec. 2424.10 of the final
rule is amended to state that parties may contact either the CADR
Program or the Office of Case Intake and Publication to seek CADR
services. Updated phone numbers are added to the final rule. Further,
whereas the proposed rule removed all direct references to CADR, Sec.
2424.10 of the final rule retains all of the direct references to CADR
that currently appear in 5 CFR 2424.10. As in the proposed rule, Sec.
2424.10 of the final rule clarifies that CADR representatives will
attempt to assist parties to resolve their disputes ``as resources
permit.''
Section 2424.11
Comments and Responses
Two commenters supported requiring that requests for allegations
concerning the duty to bargain be in writing, and like the proposed
rule, the final rule incorporates this requirement.
OPM requested that this section be amended to state that any
written agency responses to an exclusive representative's proposals--
including agency counterproposals--may contain an unrequested agency
allegation concerning the duty the bargain. Because the existing
wording does not limit the types of written sources that may contain an
unrequested agency allegation concerning the duty to bargain, the
requested change is unnecessary. Therefore, the final rule does not
adopt that requested change.
OPM also requested that this section be amended to specify that an
agency allegation concerning the duty to bargain need contain only an
assertion of nonnegotiability and the statutory basis, or other
authority, supporting that assertion. OPM contended that the rule
should make clear that no further detail is necessary to trigger the
time limits for filing a petition for review under Sec. 2424.21. The
existing wording at 5 CFR 2424.11 does not specify the level of detail
required to trigger the time limits in Sec. 2424.21, except to say
that agency allegations must be in writing and must concern the duty to
bargain. The FLRA believes that case-by-case adjudication continues to
provide a superior method for determining precisely when an agency
allegation has triggered the time limits in Sec. 2424.21, and the
final rule has not adopted OPM's suggested modification.
Further Analysis
The final rule is the same as the proposed rule.
Section 2424.21
Comments and Responses
Six commenters addressed the change in the proposed rule that, if
an agency fails to respond within ten days to an exclusive
representative's written request for a written agency allegation
concerning the duty to bargain, then the exclusive representative may
file a petition, but only within the next sixty days. One union
commenter stated that the sixty-day timeline was adequate under these
circumstances. Three agency commenters stated that imposing the sixty-
day timeline would ensure that negotiability disputes did not linger
longer than necessary. OPM requested that this deadline be shortened to
thirty days. One union commenter opposed the sixty-day deadline
because, according to the commenter, this change rewarded an agency's
failure to respond to a written request for an allegation of
nonnegotiability by nevertheless imposing a deadline on the exclusive
representative for filing a petition for review. As discussed further
below, the final rule does not impose this sixty-day deadline because
it is not clear that there is currently a problem with exclusive
representatives waiting for unnecessarily lengthy periods of time to
file petitions after requesting, but not receiving, written agency
allegations.
Two commenters expressed concern that an agency does not face
adverse consequences for failing to provide a written allegation
concerning the duty the bargain within ten days of the exclusive
representative's written request for such an allegation. One union
commenter suggested that, to provide an adverse consequence for an
agency in these circumstances, for each day that the agency's requested
allegation is late--that is, beyond the ten-day deadline for providing
such an allegation--the exclusive representative should receive an
additional day for filing its petition. This suggestion would violate
Section 7117(c)(2) of the Statute, which requires a fifteen-day
deadline for filing a petition for review after an agency alleges that
the duty to bargain does not extend to any matter. 5 U.S.C. 7117(c)(2).
Thus, this suggestion has not been adopted. The same union commenter
was also concerned that fifteen days would be inadequate for filing a
petition that satisfies certain new content requirements that appeared
in Sec. 2424.22(d) of the proposed rule. As discussed later in
connection with Sec. 2424.22(d), the proposed new content requirements
are not part of the final rule, so this concern has been mooted. One
commenter suggested that the Authority rewrite the section so that none
of the deadlines depend on when the exclusive representative receives,
or does not receive, written agency allegations. According to this
commenter, the complexity of the section in distinguishing between
responses or non-responses to written requests for allegations,
solicited or unsolicited allegations, and written versus unwritten
allegations creates unnecessary formality that will confuse many
negotiators, who are often not lawyers. The commenter suggested that
the section state simply that an exclusive representative may file an
appeal at any time after the representative is placed on notice that
the agency considers a proposal
[[Page 62448]]
nonnegotiable, even if the exclusive representative has not requested a
written allegation of nonnegotiability. This suggestion would violate
Section 7117(c)(2) of the Statute, which requires a fifteen-day
deadline for filing a petition for review after an agency alleges that
the duty to bargain does not extend to any matter. 5 U.S.C. 7117(c)(2).
Accordingly, this suggestion has not been adopted.
One union commenter opposed Sec. 2424.21(b)(1)(i) of the proposed
rule, which stated that, if the agency serves a written allegation on
the exclusive representative more than ten days after receiving a
written request for such allegation, then the petition must be filed
within fifteen days of the service of that allegation. This union
commenter contended that imposing a fifteen-day deadline on an
exclusive representative--even when an agency did not satisfy its
obligation to provide a requested allegation within ten days of the
request--rewards an agency's violation of its regulatory obligation to
furnish requested allegations. However, this commenter did not suggest
any alternative regulatory wording, and as discussed in the previous
two paragraphs, Section 7117(c)(2) of the Statute requires a fifteen-
day deadline for filing a petition for review after an agency alleges
that the duty to bargain does not extend to any matter. 5 U.S.C.
7117(c)(2). As discussed further below, with some modifications to the
wording, the change identified as Sec. 2424.21(b)(1)(i) of the
proposed rule has been adopted as Sec. 2424.21(b)(1) of the final
rule.
OPM suggested that Sec. 2424.21(b)(1)(ii) of the proposed rule be
omitted from the final rule because it was confusing. As explained
further below, this suggestion was accepted.
Further Analysis
Unlike the proposed rule, Sec. 2424.21 of the final rule does not
state that if an agency fails to respond to a written request for a
written allegation within ten days of the request, then the exclusive
representative may file a petition, but only within the next sixty
days. Further, to simplify the rule, Sec. 2424.21 of the final rule
does not adopt the wording from Sec. 2424.21(b)(1)(ii) of the proposed
rule, which described how the Authority would handle a situation where
an agency served a written allegation on the exclusive representative
more than ten days after receiving a written request for such
allegation, but the exclusive representative had already filed a
petition. These proposed changes have been deliberately omitted from
the final rule. However, Sec. 2424.21 of the final rule adopts the
change from the proposed rule that, if the agency serves a written
allegation on the exclusive representative more than ten 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 days of
the service of that allegation. This change now appears as Sec.
2424.21(b)(1) in the final rule.
Section 2424.22
Comments and Responses
OPM suggested that this section specify that untimely petitions
will be dismissed absent a demonstration of good cause. Existing
procedures for addressing untimely petitions have proven adequate, so
this suggestion has not been adopted.
Many of the comments about this section concerned the proposal to
amend severance procedures. The proposal notices described two possible
severance-amendment options. Under ``Option 1,'' severance would be
eliminated altogether by requiring the exclusive representative to
divide matters into separate proposals or provisions when filing the
petition, and by precluding severance at later stages of the
proceeding. Under ``Option 2,'' severance would be available at only
one point in the filing process, and timely severance requests would be
automatically granted. However, if severance requests were
automatically granted, then the exclusive representative would bear
certain burdens to ensure that the record was sufficient to assess
whether the severed portions were within the duty to bargain or
consistent with law.
One union commenter supported the portion of ``Option 1'' that
allowed an exclusive representative to divide matters into distinct
proposals and provisions at the petition stage, but the commenter
desired another opportunity for severance later in the process. This
commenter suggested that the exclusive representative's response to the
agency's statement of position should be the later point for severance.
This commenter supported the portion of ``Option 2'' that would make
severance automatic because this approach would prevent severance from
becoming its own point of contention in the proceedings.
Another commenter said that neither severance option would
streamline the negotiability process because, even after severance
occurred, if only a few words from a larger proposal or provision were
allegedly nonnegotiable, then that small portion could cause the entire
proposal or provision to be found nonnegotiable. However, the
consequence that the commenter identified exists regardless of
severance procedures: Any portion of a proposal or provision may render
the larger whole deficient. Thus, severance procedures could not
completely eliminate that risk. If required to choose between the two
options, this commenter preferred ``Option 1.''
A commenter suggested that unions should state, during bargaining,
how they would prefer proposals to be severed in the event of a
negotiability dispute. The commenter asserted that this approach would
highlight which portions of proposals were most important to the union
before disputes reached the formal negotiability process. However,
regulating the methods that parties use in their bargaining before the
formal negotiability process begins is beyond the scope of the rule.
An agency commenter supported both eliminating severance altogether
and prohibiting an exclusive representative from dividing single
proposals from the bargaining table into multiple parts--to be
considered as distinct proposals--in a petition. This suggestion is
impractical because, in most cases, an exclusive representative must
choose how much of the wording from the parties' negotiations will be
set forth in the petition. In some cases, negotiations may involve only
a few sentences, but many cases involve multiple pages of text. It
would be inefficient for the rule to require an exclusive
representative to set forth in the petition all of the text from the
bargaining table, even though some parts are entirely agreeable to both
parties. Thus, an exclusive representative must apportion the text from
the bargaining table into proposals for consideration in a petition.
Another union commenter opposed making any changes to existing
severance procedures because, according to this commenter, the Statute
requires an informal process for presenting arguments to the Authority.
However, the Statute is precise in delimiting the procedures for
negotiability appeals, and there is nothing to suggest that the entire
process should be informal. Further, it is unclear how maintaining or
eliminating severance--which is a specialized concept in negotiability
law--would promote informality, even if that were a goal of the
negotiability process. This commenter also contended that if severance
were eliminated, exclusive representatives would be unable to salvage
negotiable portions of longer proposals in which easily isolatable
parts were outside the duty to bargain. This criticism is
[[Page 62449]]
unwarranted because, under either Option, an exclusive representative
could submit an easily isolated portion of disputed text as one
proposal, and divide the remainder of the disputed text into separate
proposals--provided that all proposals have meaning standing alone.
Moreover, as discussed in connection with Sec. 2424.25 of the final
rule, a modified severance procedure will be available when the
exclusive representative files a response to the agency's statement of
position. Another agency commenter preferred ``Option 1'' because the
commenter said that ``Option 2'' would generate additional disputes
over whether an exclusive representative had satisfied its burdens
after receiving automatic severance. However, the existing process
generates disputes about whether the Authority should grant severance.
The idea for automatically granting severance under ``Option 2'' was
premised on a prediction that there would be fewer disputes about
whether exclusive representatives had satisfied their burdens after
automatic severance than there are disputes at present over whether the
Authority should grant severance. The FLRA adheres to its predictive
judgment that the number of disputes will decrease if the question of
whether to grant severance is not its own point of contention.
After consideration of these severance comments, and as explained
further below, the final rule incorporates portions of ``Option 1'' and
``Option 2.'' At the petition stage, the exclusive representative will
be responsible for dividing matters into distinct proposals or
provisions, if it desires distinct negotiability determinations on
particular matters standing alone. However, when the exclusive
representative files a response to the agency's statement of position,
there will be an opportunity to invoke a modified severance procedure.
The ways in which that procedure has been modified are discussed in
connection with Sec. 2424.25 of the final rule.
The remaining comments on this section concerned Sec. 2424.22(d)
of the proposed rule, which required exclusive representatives to
respond--in the petition for review--to any specific claims from an
agency's allegation concerning the duty to bargain, or from an agency
head's disapproval (the response requirement).
One union commenter opposed the response requirement because the
commenter said that the requirement was overly formalistic, and many
union representatives are not lawyers.
An agency commenter supported the response requirement on the
ground that it would foster a more prompt and focused process for
resolving negotiability disputes.
One commenter said the fifteen-day deadline for filing a petition
would not be sufficient to respond to all of the specific claims in an
agency's allegation concerning the duty to bargain, or an agency head's
disapproval.
Another union commenter stated that the response requirement would
demand that an exclusive representative prove that a proposal was
negotiable, rather than require that an agency prove that it was not.
As explained further below, the final rule does not adopt Sec.
2424.22(d) of the proposed rule, so the expressed concerns about, or
support for, the response requirement are moot.
Further Analysis
The heading and Sec. 2424.22(a) are the same in the final rule as
in the proposed rule. Like the proposal notices' ``Option 1,'' Sec.
2424.22 of the final rule adds a new paragraph--designated Sec.
2424.22(b)--to allow for the division of matters into proposals or
provisions. If an exclusive representative seeks a negotiability
determination on particular matters standing alone, then the exclusive
representative will be required to divide the matters into separate
proposals or provisions when filing the petition. An exclusive
representative may no longer ask the Authority for severance at the
petition stage of the negotiability proceedings, because the exclusive
representative is capable of separating matters into distinct proposals
or provisions when submitting a petition to the Authority. However, the
final rule also adopts parts of ``Option 2'' from the proposal notices.
Specifically, the final rule does not completely eliminate severance
from negotiability proceedings, although the exclusive representative
may no longer ask the Authority for severance at the petition stage. In
accordance with the description of ``Option 2'' in the proposal
notices, a new sentence has been added to Sec. 2424.22(b) of the final
rule that did not appear in the proposed rule. Specifically, Sec.
2424.22(b) of the final rule states that ``the exclusive representative
will have an opportunity to divide proposals or provisions into
separate parts when the exclusive representative files a response under
Sec. 2424.25.'' In other words, a modified severance procedure will be
available at the response stage of the negotiability proceedings.
Section 2424.22(c) of the final rule differs from the proposed rule
in several respects. The paragraph identified as Sec. 2424.22(c)(3) in
the proposed rule is adopted but redesignated as Sec. 2424.22(c)(2)(i)
in the final rule. The paragraph identified as Sec. 2424.22(c)(4) in
the proposed rule is adopted but redesignated as Sec. 2424.22(c)(3) in
the final rule. The word ``and'' has been removed from the end of this
paragraph because an additional paragraph has been added to Sec.
2424.22(c) of the final rule. The paragraph identified as Sec.
2424.22(c)(5) in the proposed rule is adopted but redesignated as Sec.
2424.22(c)(3)(i) in the final rule, and the word ``and'' has been added
to the end of this paragraph to introduce the final paragraph of Sec.
2424.22(c) of the final rule.
Section 2424.22 of the proposed rule eliminated the wording
currently located at 5 CFR 2424.22(b)(4). Section 2424.22 of the final
rule maintains the wording currently located at 5 CFR 2424.22(b)(4),
but the wording is redesignated as Sec. 2424.22(c)(4) in the final
rule. This wording is further amended so that it requires the petition
to include any request for a hearing and the reasons supporting such
request, ``with the understanding that the Authority rarely grants such
requests.'' This additional proviso has been added to make parties
aware that, as a matter of longstanding practice, the Authority very
seldom grants hearing requests.
Unlike the proposed rule, Sec. 2424.22 of the final rule does not
require the exclusive representative to respond, in its petition, to
specific bargaining obligation or negotiability claims that appear in
an agency's written allegation concerning the duty to bargain, or an
agency head's disapproval--although the exclusive representative is not
prohibited from responding to those claims in its petition.
Like the proposed rule, Sec. 2424.22 of the final rule eliminates
the paragraph concerning severance that is currently located at 5 CFR
2424.22(c).
Section 2424.23
Comments and Responses
Two agency commenters opposed making the scheduling of a post-
petition conference dependent on the Authority's discretion. However,
the existing regulation already recognized such discretion by saying
that conferences would be scheduled only ``where appropriate.'' 5 CFR
2424.23(a). Although the wording is being changed, the effect is the
same. One of these commenters also stated that conferences should occur
before the agency files its statement of position. Although the
Authority endeavors to schedule conferences before the filing of a
statement of position, conferences do
[[Page 62450]]
not always occur within that timeframe. The final rule does not
guarantee that a conference will occur within a particular timeframe,
but the Authority will continue to endeavor to schedule conferences at
the earliest practicable date.
A union commenter said that conferences should be held early in the
filing process. As stated previously, the Authority will continue to
endeavor to do so.
Another agency commenter suggested that post-petition conferences
should happen within thirty days or less of the Authority's meeting on
the case. The commenter expressed concern that, because conferences may
be held many months before a decision is issued, the Authority's
Chairman and Members may not retain familiarity with the details of the
conference. Because the record of a post-petition conference is created
shortly after the conference, and that record is part of the official
case file that the Chairman and Members review when deciding a
negotiability appeal, the commenter's concern is unfounded. Thus, the
final rule has not been amended based on this comment.
OPM supported emphasizing the discretionary nature of post-petition
conference scheduling, but asked that the regulation be amended further
to state that the post-petition conference would generally not occur if
no additional clarification was needed regarding the disputed wording.
Experience has shown that, in nearly all cases, post-petition
conferences meaningfully clarify the disputes in negotiability appeals.
Thus, the regulation has not been amended as OPM suggested.
OPM also suggested that the post-petition conferences should occur
after the agency files its statement of position. OPM reasoned that the
statement of position is the first fully elaborated explanation of the
agency's objections to the disputed wording, and if conferences were
held after it is filed, then the conference holder would have more
material with which to prepare for the conference. Post-petition
conferences primarily develop the factual record in a negotiability
appeal and reveal whether the parties have a shared understanding of
the wording in dispute. If the parties do not already have a shared
understanding of the disputed wording, then the conference helps to
develop such an understanding, or to precisely identify where the
parties' understandings differ.
Although previously expressed legal arguments may shape some of the
questions at the conference, the existing process has shown that
conference holders are able to elicit sufficient information from
agencies during the conference to assess the nature of their objections
and tailor the conference accordingly. Further, in cases where the
conference occurs before the statement of position is filed, the agency
is able to focus its arguments in the statement of position on the
actual disputes between the parties, rather than misperceptions about
the meaning, operation, and effects of the proposals or provisions.
Therefore, the final rule does not aim to schedule post-petition
conferences after the filing of the statement of position.
One commenter suggested that the section should not be changed
because the existing process has worked very well. The changes adopted
in the final rule will more closely align the wording of the regulation
and the Authority's actual practices. The essential nature and function
of the post-petition conferences will remain the same.
One agency commenter suggested that Sec. 2424.23(e) of the
proposed rule should be amended to specify that the Authority may take
other appropriate action to aid in its decision making even if a
conference is not held. However, the proposed rule already included
such wording because it stated that the Authority may hold a hearing or
take other appropriate action, in the exercise of its discretion,
instead of, or in addition to, conducting a post-petition conference.
Section 2424.23(e) of the final rule retains this wording.
Further Analysis
The heading of Sec. 2424.23 is the same in the final rule as in
the proposed rule. Further, Sec. 2424.23(a) is the same in the final
rule as in the proposed rule, with one exception. Whereas Sec.
2424.23(a) of the proposed rule said that ``[t]he FLRA may, in its
discretion, schedule a post-petition conference,'' Sec. 2424.23(a) of
the final rule says that ``[t]he FLRA will, in its discretion, schedule
a post-petition conference.'' The word ``may'' was changed to ``will''
to emphasize that, in the vast majority of cases, a post-petition
conference will be scheduled. Further, the phrase ``in its discretion''
already permits the Authority to exercise reasonable judgment in
deciding whether to schedule a post-petition conference in a particular
case, so the permissive ``may'' was not needed to signal such
discretion.
Although the proposed rule did not include changes to Sec.
2424.23(b)(3), the final rule adds the word ``and'' at the end of Sec.
2424.23(b)(3), in order to introduce the following subsection. As this
change is merely a grammatically correct way to introduce Sec.
2424.23(b)(4), rather than a substantive change to Sec. 2424.23(b)(3),
this technical change falls within the scope of the proposed amendments
to Sec. 2424.23(b)(4).
Section 2424.23(b)(4) of the proposed rule was amended, and the
amended version appears as Sec. 2424.23(b)(4) of the final rule.
Whereas the proposed rule addressed the status of ``any proposal or
provision that is also involved in'' another proceeding, the final rule
addresses the status of ``any proceedings . . . that are directly
related to the negotiability petition.'' Thus, the scope of Sec.
2424.23(b)(4) in the final rule is broader than Sec. 2424.23(b)(4) in
the proposed rule. The final rule requires parties to be prepared and
authorized to discuss the status of any proceedings directly related to
the negotiability petition, and not merely a particular proposal or
provision that is involved in both the negotiability process and
another proceeding. Further, including the ``directly related'' wording
in Sec. 2424.23(b)(4) of the final rule ensures consistency with Sec.
2424.30, which states that the Authority will dismiss a petition for
review when the exclusive representative has filed an unfair labor
practice (ULP) charge or a grievance alleging a ULP, and the charge or
grievance concerns issues ``directly related'' to the petition.
Section 2424.23(b) of the final rule deletes the wording currently
located at 5 CFR 2424.23(b)(5) because the subject matter currently
addressed at 5 CFR 2424.23(b)(5)--that is, extensions of time limits--
is now addressed in Sec. 2424.23(c) of the final rule. Section
2424.23(c) is the same in the final rule as in the proposed rule.
Section 2424.23(d) of the final rule differs from the proposed rule
in three respects. First, rather than referring to ``the representative
of the FLRA,'' as the proposed rule did, the final rule refers to ``the
FLRA representative.'' Second, the final rule clarifies that the FLRA
will serve the record of the conference on the parties: the FLRA
representative conducting the conference will prepare the record but
not serve it. Third, the final rule references ``a written record,''
rather than ``a written statement'' as in the proposed rule. ``Record''
is the term the FLRA uses to refer to this document in communications
with parties and in Authority decisions, so the rule's wording was
changed to correspond with these other uses.
Section 2424.23(e) is the same in the final rule as in the proposed
rule.
Section 2424.24
Comments and Responses
OPM and an agency commenter supported the specificity requirements
[[Page 62451]]
of the section as promoting prompt and focused resolutions to disputes.
Further Analysis
The heading and Sec. 2424.24(a) are the same in the final rule as
in the proposed rule, with one minor, technical change. The final rule
uses the term ``outside the duty to bargain,'' rather than ``not within
the duty to bargain,'' to make the sentence read more clearly and to
use the same wording that is set forth in Sec. 2424.32(b). The change
does not alter the sentence's meaning.
Although the proposed rule included changes to streamline Sec.
2424.24(b), the final rule leaves the wording located at 5 CFR
2424.24(b) unchanged.
Section 2424.24(c)(2) is the same in the final rule as in the
proposed rule.
Section 2424.24(c)(3) of the final rule differs from the proposed
rule in several respects. The first part of Sec. 2424.24(c)(3) of the
final rule--in the portion that begins with the word ``[s]tatus''--is
changed from the proposed rule so that this portion of Sec.
2424.24(c)(3) of the final rule mirrors Sec. 2424.23(b)(4) of the
final rule. The second part of Sec. 2424.24(c)(3) of the final rule--
in the portion that begins with ``and whether''--is the same as in the
proposed rule, except the word ``and'' has been deleted after the
semicolon.
The paragraph identified as Sec. 2424.24(c)(4) in the proposed
rule is adopted but redesignated as Sec. 2424.24(c)(3)(i) in the final
rule, and the word ``and'' has been added to the end of this paragraph
to introduce the final paragraph of Sec. 2424.24(c) of the final rule.
Section 2424.24 of the proposed rule eliminated the wording currently
located at 5 CFR 2424.24(c)(4). However, Sec. 2424.24 of the final
rule maintains the wording currently located at 5 CFR 2424.24(c)(4),
but that wording is supplemented so that it requires the petition to
include any request for a hearing and the reasons supporting such
request, ``with the understanding that the Authority rarely grants such
requests.'' This additional proviso has been added to make parties
aware that, as a matter of longstanding practice, the Authority very
seldom grants hearing requests.
Like the proposed rule, Sec. 2424.24 of the final rule deletes the
paragraph currently located at 5 CFR 2424.24(d), and the final rule
also redesignates the paragraph currently located at 5 CFR 2424.24(e)
as the new Sec. 2424.24(d) of the final rule.
Section 2424.25
Comments and Responses
OPM suggested that this section specify that untimely responses to
statements of position will not be considered, absent a demonstration
of good cause. Existing procedures for addressing untimely responses
have proven adequate, so this suggestion has not been adopted.
OPM and an agency commenter supported the specificity requirements
of this section as promoting prompt and focused resolutions to
disputes.
One commenter suggested that the section should clarify that a
response is optional if the exclusive representative does not have any
additional arguments that were not already set forth in the petition
for review. This concern is adequately addressed by Sec. 2424.25(c) of
the final rule, which states that the response is limited to matters
that the agency raised in its statement of position, and that the
exclusive representative is not obligated to repeat arguments that were
made in the petition for review.
One commenter specifically supported the idea of granting severance
automatically--as suggested in the proposal notices under severance
``Option 2''--and that commenter also advocated making severance
available in the response. Except for one point that was already
addressed in connection with Sec. 2424.22 about disputes over whether
an exclusive representative satisfied its burdens related to automatic
severance, commenters did not specifically oppose providing severance
automatically when it was sought. To be clear, some commenters did
advocate for eliminating severance altogether, but those commenters did
not provide specific reasons why--if severance were retained in some
fashion--it should not occur automatically when sought.
Further Analysis
Section 2424.25(a) is the same in the final rule as in the proposed
rule, except that, instead of the word ``union'' as in the proposed
rule, the final rule uses the term ``exclusive representative.''
Although the proposed rule included changes to streamline Sec.
2424.25(b), the final rule leaves the wording located at 5 CFR
2424.25(b) unchanged.
Section 2424.25(c) is the same in the final rule as in the proposed
rule, except for the fourth complete sentence in Sec. 2424.25(c). The
fourth complete sentence in Sec. 2424.25(c) of the proposed rule
stated, ``You must limit your response to the matters that the agency
raised in its statement of position.'' By contrast, the fourth complete
sentence in Sec. 2424.25(c) of the final rule states, ``With the
exception of severance under paragraph (d) of this section, you must
limit your response to the matters that the agency raised in its
statement of position.'' Thus, this sentence in the final rule allows
for the accomplishment of severance in the exclusive representative's
response, but otherwise, the response is limited to the matters that
the agency raised in its statement of position.
Section 2424.25 of the proposed rule deleted the severance wording
currently located at 5 CFR 2424.25(d), and the proposed rule
redesignated the wording currently located at 5 CFR 2424.25(e) as the
new Sec. 2424.25(d).
As mentioned during the earlier discussion of severance in
connection with the content of a petition for review under Sec.
2424.22, the final rule makes a modified severance procedure available
under Sec. 2424.25. Thus, unlike the proposed rule, Sec. 2424.25 of
the final rule does not completely delete the severance paragraph
currently located at 5 CFR 2424.25(d). Instead, the final rule amends
that paragraph to allow the exclusive representative, of its own
accord, to accomplish severance of a previously submitted proposal or
provision. Section 2424.25(d) of the final rule explains how the
exclusive representative may accomplish severance of its own accord and
describes how the exclusive representative's accomplishment of
severance must aim to satisfy the exclusive representative's burdens
under Sec. Sec. 2424.25(c) and 2424.32. This approach is consistent
with severance ``Option 2,'' as described in the proposal notices in
connection with Sec. 2424.22 of the proposed rule.
Under Sec. 2424.25(d) of the final rule, the exclusive
representative must identify the proposal or provision that the
exclusive representative is severing and set forth the exact wording of
the newly severed portion(s). At that point, under the final rule,
severance will have been accomplished, creating revised or new
proposals or provisions. However, under the final rule, consistent with
FLRA case law, the exclusive representative will maintain the burden of
establishing why, despite an agency's objections, the newly severed
proposals or provisions are within the duty to bargain or not contrary
to law. That burden includes explaining how the newly severed proposals
or provisions operate and stand alone with independent meaning.
Moreover, under the final rule, if the exclusive representative
accomplishes severance of its own accord but fails to meet the
associated burdens under Sec. 2424.25(c) or Sec. 2424.32, then the
Authority would dismiss the petition as to the newly severed proposals
or provisions, based on the exclusive representative's failure
[[Page 62452]]
to provide an adequate record for a negotiability determination. See,
e.g., NFFE, Loc. 1655, 49 FLRA 874, 878-79 (1994) (dismissing petition
as to one provision because the record was inadequate for the Authority
to make a negotiability determination).
An exclusive representative must be especially attentive to its
burdens in connection with accomplishing severance, particularly
because a response is ordinarily an exclusive representative's last
filing in a negotiability case. Whereas insufficiently explained
proposals or provisions in a petition may often be clarified in the
record of a later post-petition conference, it is unlikely (although
not impossible) that a post-petition conference will occur after the
filing of a response.
Section 2424.25(e) of the final rule leaves the wording currently
located at 5 CFR 2424.25(e) unchanged.
Section 2424.26
Comments and Responses
OPM suggested that this section specify that untimely replies will
not be considered, absent a demonstration of good cause. Existing
procedures for addressing untimely replies have proven adequate, so
this suggestion has not been adopted.
Two commenters opposed Sec. 2424.26(b) of the proposed rule
because that paragraph changed the time limit for filing a reply from
fifteen days (under the existing rule) to ten days from the date of
receipt of the exclusive representative's response. OPM supported
shortening the time limit. As discussed further below, the final rule
does not change the time limit.
Further Analysis
The heading and Sec. 2424.26(a) are the same in the final rule as
in the proposed rule. Although the proposed rule included changes to
Sec. 2424.26(b)--concerning the time limit for filing a reply--the
final rule leaves the wording located at 5 CFR 2424.26(b) unchanged.
Section 2424.22(c) is the same in the final rule as in the proposed
rule, with one exception. The sixth full sentence of Sec. 2424.22(c)
of the final rule ends with the word ``respectively,'' which was not
part of the proposed rule.
Section 2424.26 of the proposed rule deleted the severance wording
currently located at 5 CFR 2424.26(d), and the proposed rule
redesignated the wording currently located at 5 CFR 2424.25(e) as the
new Sec. 2424.25(d). The final rule adopts these changes in full.
Section 2424.27
Comments and Responses
One commenter suggested that the paragraph about additional
submissions include a time limit for when such submissions must be
filed. This paragraph is mostly aimed at addressing unexpected
developments that cannot be adequately discussed in the filings that
the negotiability regulations already recognize. For that reason, it is
unclear what event would trigger a time limit for additional
submissions, and the commenter did not suggest any point at which to
begin measuring such a time limit. Further, one purpose of this section
is to allow filings even late in negotiability proceedings, if
sufficiently important developments could affect the Authority's
eventual decision and order. A time limit would impede that purpose.
Thus, this suggestion has not resulted in changes to the rule.
The proposed rule removed--from the paragraph currently located at
the 5 CFR 2424.27--the five-day deadline for filing an additional
submission, after receipt of an Authority order granting permission to
file that submission. A union commenter opposed this change because the
proposed rule did not provide an alternate deadline. As discussed
further below, the final rule addresses this issue by requiring that
any additional submission be filed simultaneously with the request for
permission to file that additional submission.
The same union commenter also characterized this paragraph as
creating a process for third parties to submit documents for the
Authority's consideration in a negotiability case. That is, the
commenter believed that the paragraph concerned filings that are not
submitted by the parties to a case. However, the commenter's
characterization misconstrued the paragraph. Both before and after
revisions, the beginning of the paragraph states that ``[t]he Authority
will not consider any submission filed by any party other than those
authorized under this part,'' and then the remainder of the paragraph
sets forth a process for granting exceptions to that prohibition. 5 CFR
2424.27. The reference to ``any party'' does not permit non-parties to
employ this procedure to file submissions in a negotiability case.
Instead, the reference to ``any party'' emphasizes that all parties to
negotiability cases are limited to the filings expressly recognized in
the negotiability regulations, except for additional submissions that
the Authority grants permission to file, in accordance with this
section. See Processing of Cases; Final Rules, 45 FR 3482, 3485 (Jan.
17, 1980) (explaining that the purpose of the predecessor rule to Sec.
2424.27 was to clarify that ``the Authority will not consider any
submissions other than a petition for review, statement of position[,]
and response . . . unless such additional submission is requested by
the Authority[,] or the Authority in its discretion grants permission
to file such submission''). Further, the paragraph states that a party
must show that extraordinary circumstances justify filing an additional
submission, and this burden reinforces that the paragraph does not
concern filings by non-parties. A separate rule governing submissions
from amicus curiae is located at 5 CFR 2429.9.
Further Analysis
Section 2424.27 of the final rule adopts the heading and all of the
wording from the proposed rule, but Sec. 2424.27 of the final rule
also includes one additional sentence that comes from the wording
currently located at 5 CFR 2424.27. Specifically, the additional
sentence in the final rule that was not present in the proposed rule
states, ``The additional submission must be filed with the written
request.'' The ``written request'' in this additional sentence is a
written request to file an additional submission in a negotiability
proceeding based on a showing of extraordinary circumstances.
Section 2424.30
Comments and Responses
One union commenter and one agency commenter supported the proposed
clarifications in this section about when a grievance alleging a ULP
would be considered administratively resolved. These commenters stated
that the proposed rule identified all of the circumstances that, to
their knowledge, could be considered an administrative resolution that
would trigger the thirty-day deadline for an exclusive representative
to refile a directly related negotiability petition that was previously
dismissed without prejudice. The final rule adopts these clarifications
from the proposed rule in full.
The same union commenter suggested that, because this section would
now list the possible administrative resolutions for a grievance
alleging a ULP, the section should also list the possible
administrative resolutions for a ULP charge that prompted the dismissal
of a negotiability petition without prejudice. The commenter should
refer to the ULP regulations in part 2423 for guidance about potential
administrative
[[Page 62453]]
resolutions of ULP charges. The final rule does not repeat information
from part 2423.
An agency commenter suggested that Sec. 2424.30(b)(2) of the
proposed rule state that where an agency makes only bargaining
obligation claims, and not negotiability claims, those bargaining
obligation claims will not be resolved through the negotiability
process. The clarification that this commenter sought is already
present in Sec. 2424.2(d)'s definition of a petition for review, so
this suggestion has not resulted in changes to Sec. 2424.30 of the
final rule.
OPM contended that the Authority should not automatically dismiss
petitions for review without prejudice when an exclusive representative
has filed a ULP charge or grievance alleging a ULP, and the charge or
grievance concerns issues directly related to the petition for review.
Instead, OPM advocated a case-by-case assessment of which forum would
most expeditiously resolve the parties' disputes. According to OPM, if
the Authority determines that the negotiability process would provide
the most expeditious resolution, then the Authority should not dismiss
a petition for review (without prejudice) while the parties' directly
related disputes proceed toward resolution in another forum. When the
Authority amended its negotiability regulations to allow for the
resolution of bargaining obligation disputes that accompany
negotiability disputes, the Authority declined to adopt a commenter's
suggestion that, if directly related disputes were filed in multiple
forums, then an exclusive representative should have the right to
determine which forum proceeds to a resolution first. On that point,
the Authority stated that ULP ``proceedings are, in these situations,
better suited to resolving the entire dispute.'' Negotiability
Proceedings, 63 FR 66405, 66410 (Dec. 2, 1998). The Authority explained
further:
[W]ith the sole exception of compelling need claims . . . all
bargaining obligation and negotiability claims may be adjudicated in
[a ULP] proceeding. Further, unless excluded from the scope of the
parties' grievance procedure by agreement, alleged [ULPs] may be
resolved under such negotiated procedures. Thus, with one exception,
dismissing petitions for review where [ULP] charges have been filed
does not jeopardize a party's ability to obtain adjudication of all
claims. In addition, . . . with the exception of orders to bargain,
remedies available in [ULP] proceedings under 5 U.S.C. 7118(a)(7)
are not . . . available in Authority decisions and orders issued
under this part. Accordingly, in situations where an exclusive
representative has filed [a ULP] charge, requiring adjudication in a
negotiability proceeding would deprive a prevailing exclusive
representative of such remedies.
Id. The Authority continues to adhere to those views about
resolving cases that involve both bargaining obligation and
negotiability disputes. Moreover, a case-by-case assessment would leave
the decision-makers in other forums--specifically, the General Counsel
and employees of the Office of the General Counsel, as well as
arbitrators--uncertain about whether to process disputes before them
that are directly related to a negotiability petition for review. For
all these reasons, the final rule does not adopt OPM's suggestion.
OPM also suggested that the section state that if an exclusive
representative files a ULP charge that solely concerns an allegation of
nonnegotiability, then the Authority may choose to process the ULP
charge as a negotiability appeal. However, OPM did not provide any
legal authority to establish that an exclusive representative's choice
of forum may be overruled in that manner, so this suggestion has not
been adopted.
Further Analysis
The heading; Sec. 2424.30(a)--including subsections (a)(1), (2),
(3), and (4); and Sec. 2424.30(b) and (b)(1) are the same in the final
rule as in the proposed rule.
Section 2424.30(b)(2) of the final rule differs from the proposed
rule only in its first sentence. This sentence concerns how the
Authority will process a petition for review when an exclusive
representative has not already filed a related ULP charge or a
grievance alleging a ULP, but a bargaining obligation dispute exists in
connection with the petition for review. The first sentence of Sec.
2424.30(b)(2) of the proposed rule stated, in pertinent part, ``The
exclusive representative may file an unfair labor practice charge
pursuant to part 2423 of this subchapter or a grievance under the
parties' negotiated grievance procedure concerning the bargaining
obligation dispute . . . .'' In contrast, the first sentence of Sec.
2424.30(b)(2) of the final rule states, in pertinent part, ``The
exclusive representative may have an opportunity to file an unfair
labor practice charge pursuant to part 2423 of this subchapter or a
grievance under the parties' negotiated grievance procedure concerning
the bargaining obligation dispute . . . .'' This sentence was changed
to avoid implying that, if an exclusive representative files a petition
that involves a bargaining obligation dispute, then the exclusive
representative is entitled to file a ULP charge or grievance alleging a
ULP, irrespective of the ordinary legal and contractual conditions that
would otherwise apply to these filings. Thus, this portion of the first
sentence of Sec. 2424.30(b)(2) of the final rule uses the phrase ``may
have an opportunity to file'' to indicate that, if an exclusive
representative files a ULP charge or grievance as described in this
subsection, then those filings would be subject to all of the otherwise
applicable conditions that ordinarily apply to such filings--such as,
for example, time limits. The remainder of Sec. 2424.30(b)(2) of the
final rule is the same as the proposed rule.
Section 2424.31
Comments and Responses
One commenter disagreed that this section should allow for hearings
or other appropriate action to resolve bargaining obligation disputes
since this part of the Authority's Regulations concerns negotiability
proceedings. The procedures of this section would apply only to
bargaining obligation disputes that may be resolved in a negotiability
appeal because they are accompanied by negotiability disputes
concerning the same proposal or provision.
A union commenter stated that, to the extent that the final rule is
intended to preclude the consideration of parties' views about whether
a hearing is needed, the commenter opposes that change. The final rule
is not intended to preclude the consideration of the parties' views,
and none of the changes to the rule expressly state or imply that the
Authority will not consider the parties' views. Thus, this concern is
misplaced.
Further Analysis
Section 2424.31 is the same in the final rule as in the proposed
rule.
Section 2424.32
Comments and Responses
An agency commenter recommended adding the phrase ``or government-
wide regulation'' after the phrase ``contrary to law'' in Sec.
2424.32(a) and (b). This change has not been made because this
section's use of the phrase ``contrary to law'' is intended to
encompass all authorities with the force and effect of law--not merely
statutes.
A union commenter opposed the newly created burden under Sec.
2424.32(c) of the proposed rule that each party must give sufficiently
detailed explanations to enable the Authority to understand the party's
position regarding the meaning, operation, and effects of a proposal or
provision. The commenter noted that Sec. 2424.32(c) cautioned that the
Authority's decision may be adverse to
[[Page 62454]]
a party that fails to satisfy this burden to sufficiently explain, and
the commenter contended that an adverse consequence is an unfair
penalty for non-lawyer union representatives who may not phrase
arguments in the most compelling way. This commenter viewed Sec.
2424.32(c) as an attempt to punish parties that do not provide
sophisticated analyses. However, the commenter's criticism is unfounded
because the burden in Sec. 2424.32(c) is not concerned with
sophistication; it is concerned with sufficiency. Parties must provide
the Authority with the details necessary to understand their positions,
and parties must be aware that a failure to provide those details may
adversely affect them. Section 2424.32(c) essentially warns parties not
to expect the Authority to fill in gaps in order to fully develop, or
make sense of, incompletely explained positions. Rather, parties must
be diligent in setting forth their understandings on all relevant
facets of the meaning, operation, and effects of a proposal or
provision, as well as the associated legal implications.
Further Analysis
The heading and Sec. 2424.32(a) are the same in the final rule as
in the proposed rule.
Section 2424.32(b) of the final rule differs from the proposed rule
in one respect. Whereas Sec. 2424.32(b) of the proposed rule stated
that ``[t]he agency has the burden of explaining the meaning,
operation, and effects of the proposal or provision, if the agency
disagrees with the exclusive representative's explanations''; Sec.
2424.32(b) of the final rule states that ``[t]he agency has the burden
of explaining the agency's understanding of the meaning, operation, and
effects of the proposal or provision, if the agency disagrees with the
exclusive representative's explanations.'' Unlike the proposed rule,
Sec. 2424.32(b) of the final rule assigns the agency the burden of
explaining the agency's understanding of meaning, operation, and
effects because the agency has this burden of explanation only when the
agency disagrees with the explanations that the exclusive
representative already provided. In those situations where the agency
disagrees with the exclusive representative's explanations, the
agency's burden would be to explain the agency's understanding, so as
to distinguish that understanding from the exclusive representative's
previous explanations.
The wording in Sec. 2424.32(b) of the final rule is consistent
with Sec. 2424.24(c)(2)(i) of the final rule, in which agencies are
instructed that their statements of positions must include, ``[i]f
different from the exclusive representative's position, an explanation
of the meaning the agency attributes to the proposal or provision and
the reasons for disagreeing with the exclusive representative's
explanation of meaning.'' 5 CFR 2424.24(c)(2)(i) (emphasis added).
Further, Sec. 2424.32(b) of the final rule is consistent with
Authority precedent that when the parties disagree about a proposal's
meaning, then the Authority relies on the exclusive representative's
explanation of the proposal's meaning to assess whether the proposal is
within the duty to bargain, as long as the exclusive representative's
explanation comports with the proposal's wording. E.g., Nat'l Nurses
United, 70 FLRA 306, 307 (2017).
Moreover, Sec. 2424.32(b) of the final rule accounts for cases
where an exclusive representative explains a proposal's meaning, but
that explanation does not comport with the proposal's wording. Under
those circumstances, if the agency disagrees with the exclusive
representative's explanation, then the agency bears the burden of
explaining (1) the agency's understanding of the proposal and how that
understanding comports with the proposal's wording; and (2) why the
exclusive representative's alternate explanation does not comport with
the proposal's wording.
The remainder of Sec. 2424.32(b) of the final rule is the same as
the proposed rule.
Section 2424.32(c); (d)--including subsections (d)(1), (d)(1)(i),
(d)(1)(ii), and (d)(2); and (e) of the final rule are the same as the
proposed rule.
Section 2424.40
None of the public comments addressed Sec. 2424.40. Section
2424.40 is the same in the final rule as in the proposed rule, except
for one phrase that has been added in the final rule. The second
complete sentence of Sec. 2424.40(b) in the proposed rule stated, ``If
the Authority finds that the duty to bargain does not extend to the
proposal, then the Authority will dismiss the petition for review.'' In
Sec. 2424.40(b) of the final rule, the second half of this sentence
states, ``then the Authority will dismiss the petition for review as to
that proposal.'' This change makes Sec. 2424.40(b) of the final rule
consistent with Sec. 2424.40(c) of the final rule, which states, ``If
the Authority finds that a provision is contrary to law, rule, or
regulation, then the Authority will dismiss the petition for review as
to that provision.'' 5 CFR 2424.40(c) (emphasis added). Further, this
change is consistent with the Authority's longstanding practice. E.g.,
AFGE, Loc. 3509, 46 FLRA 1590, 1623-24 (1993) (dismissing petition for
review as to seven proposals, but ordering agency to bargain concerning
one proposal).
Section 2424.41
None of the public comments addressed Sec. 2424.41. Section
2424.41 is the same in the final rule as in the proposed rule, with one
exception. Section 2424.41 of the proposed rule stated that an
exclusive representative must report to the appropriate Regional
Director an agency's failure to comply with an order issued in
accordance with Sec. 2424.40 ``within thirty (30) days following
expiration of the 60-day period under 5 U.S.C. 7123(a).'' By contrast,
Sec. 2424.41 of the final rule reverts to wording currently located at
5 CFR 2424.41. Thus, Sec. 2424.41 of the final rule states that an
exclusive representative must report an agency's failure to comply with
an order ``within a reasonable period of time following expiration of
the 60-day period under 5 U.S.C. 7123(a).''
Section 2424.50
Comments and Responses
Two union commenters opposed changing the regulatory definition of
compelling need in a way that would permit the Authority to find that
circumstances other than those listed in the illustrative examples
demonstrated the existence of compelling need. These same commenters
opposed adding any additional examples to the illustrative criteria.
One commenter provided six additional examples to consider adding
to the illustrative criteria.
OPM supported changing the regulatory definition of compelling need
in a way that would permit the Authority to find that circumstances
other than those listed in the illustrative criteria demonstrated the
existence of compelling need.
OPM requested that the section specify that compelling need
arguments may be merely one of several grounds for an allegation of
nonnegotiability. OPM also asked that the section include additional
explanation about what constitutes an agency rule or regulation. These
requests were not germane to the definition of a compelling need--which
is the subject of this section--so they were not incorporated into the
final rule.
OPM suggested removing the reference to ``the accomplishment of the
mission or the execution of functions of
[[Page 62455]]
the agency or primary national subdivision'' from Sec. 2424.50(a) of
the proposed rule. As no rationale was offered for deleting that
phrase, it has been retained in the final rule.
One agency commenter argued that all agency rules that have general
applicability to the agency's workforce should demonstrate a compelling
need. This argument is rejected because it would allow agencies to
render topics nonnegotiable merely by issuing a regulation of general
applicability. This same commenter argued that executive orders should
qualify as ``mandate[s] to the agency or primary national subdivision
under law or other outside authority, which implementation is
essentially nondiscretionary in nature,'' under Sec. 2424.50(c).
Nothing in the rule prevents a party from making that argument in the
context of a concrete dispute, but the final rule does not include a
blanket statement to that effect.
The Department of Veterans Affairs argued that agency rules and
regulations concerning pandemics, epidemics, or other similar emergency
situations should be treated as rules and regulations supported by a
compelling need, particularly because of the Department's healthcare
responsibilities. The Department may advance that argument in the
context of a concrete dispute, but the final rule does not include a
blanket statement to that effect.
Ultimately, the comments on additional examples to add to Sec.
2424.50 were varied and conflicting. The final rule retains the
examples already set forth at 5 CFR 2424.50. However, as explained
further below, the final rule does not include any additional examples
in the illustrative criteria. In addition, the final rule does not
include a phrase that would recognize the Authority's ability to
determine that a compelling need exists based on circumstances other
than those in the illustrative criteria.
Further Analysis
Section 2424.50 of the final rule differs from the proposed rule in
several respects. Like Sec. 2424.50 of the proposed rule, Sec.
2424.50 of the final rule adds to the middle of the introductory
paragraph the following wording that does not currently appear in 5 CFR
2424.50: ``the rule or regulation was issued by the agency or any
primary national subdivision of the agency, and.'' This additional
wording recognizes requirements from Section 7117(a)(3) of the
Statute--concerning agency rules or regulations for which a compelling
need exists--as part of Sec. 2424.50 of the final rule, which provides
a regulatory definition for compelling need.
After the concluding word ``and'' in the additional wording
discussed in the preceding paragraph, Sec. 2424.50 of the proposed
rule stated that ``the agency demonstrates that either the rule or
regulation meets one or more of the following illustrative criteria, or
the Authority determines that other circumstances establish a
compelling need for the rule or regulation.'' By contrast, after the
concluding word ``and'' in the additional wording discussed in the
preceding paragraph, Sec. 2424.50 of the final rule states that ``the
agency demonstrates that the rule or regulation satisfies one of the
following illustrative criteria.'' As such, the final rule departs from
the proposed rule in that the final rule does not state that the
Authority may determine that ``other circumstances establish a
compelling need for the rule or regulation.'' Further, the final rule
changes the phrase ``one or more of the following illustrative
criteria'' from the proposed rule to simply ``one of the following
illustrative criteria.'' This change was made because a compelling need
exists if any one of the illustrative criteria is satisfied, and it
will ordinarily be unnecessary for the Authority to determine that a
rule or regulation satisfies multiple illustrative criteria. However,
this change does not preclude the possibility that a rule or regulation
could satisfy more than one of the illustrative criteria.
In connection with Sec. 2424.50, the proposal notices solicited
suggestions for more illustrative criteria that could be added to the
criteria currently located at 5 CFR 2424.50. Although the FLRA
appreciates the time that commenters dedicated to suggesting additional
illustrative criteria, the final rule does not adopt any additional
criteria. Under the final rule, the illustrative criteria currently
located at 5 CFR 2424.50(a), (b), and (c) remain unchanged.
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Chairman of the FLRA has determined that this final
rule will not have a significant impact on a substantial number of
small entities, because this final rule applies only to Federal
agencies, Federal employees, and labor organizations representing those
employees.
Executive Order 12866, Regulatory Review
The FLRA is an independent regulatory agency and thus is not
subject to the requirements of E.O. 12866 (58 FR 51735, Sept. 30,
1993).
Executive Order 13132, Federalism
The FLRA is an independent regulatory agency and thus is not
subject to the requirements of E.O. 13132 (64 FR 43255, Aug. 4, 1999).
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by state, local,
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This action is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This final
rule will not result in an annual effect on the economy of $100,000,000
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Paperwork Reduction Act of 1995
The amended regulations contain no additional information
collection or record-keeping requirements under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501, et seq.
List of Subjects in 5 CFR Part 2424
Negotiability Proceedings.
For the reasons stated in the preamble, the Federal Labor Relations
Authority amends 5 CFR part 2424 as set forth below:
0
1. The authority citation for part 2424 continues to read as follows:
Authority: 5 U.S.C. 7134.
0
2. Revise Section 2424.1 to read as follows:
Sec. 2424.1 Applicability of this part.
This part applies to all petitions for review filed on or after
October 12, 2023.
0
3. Amend Sec. 2424.2 by revising paragraphs (a), (c)(2) and (c)(3),
adding
[[Page 62456]]
paragraphs (c)(4) through (7), and revising paragraphs (copyright) and
(f). The revisions and additions read as follows:
Sec. 2424.2 Definitions.
In this part, the following definitions apply:
(a) Bargaining obligation dispute means a disagreement between an
exclusive representative and an agency concerning whether, in the
specific circumstances involved in a particular case, the parties are
obligated by law to bargain over a proposal that otherwise may be
negotiable. Examples of bargaining obligation disputes include
disagreements between an exclusive representative and an agency
concerning agency claims that:
(1) A proposal concerns a matter that is covered by a collective
bargaining agreement;
(2) Bargaining is not required because there has not been a change
in bargaining-unit employees' conditions of employment or because the
effect of the change is de minimis; and
(3) The exclusive representative is attempting to bargain at the
wrong level of the agency.
* * * * *
(c) * * *
(2) Affects bargaining-unit employees' conditions of employment;
(3) Enforces an ``applicable law,'' within the meaning of 5 U.S.C.
7106(a)(2);
(4) Concerns a matter negotiable at the election of the agency
under 5 U.S.C. 7106(b)(1);
(5) Constitutes a ``procedure'' or ``appropriate arrangement,''
within the meaning of 5 U.S.C. 7106(b)(2) and (3), respectively;
(6) Is consistent with a Government-wide rule or regulation; and
(7) Is negotiable notwithstanding agency rules or regulations
because:
(i) The proposal or provision is consistent with agency rules or
regulations for which a compelling need exists under 5 U.S.C.
7117(a)(2);
(ii) The agency rules or regulations violate applicable law, rule,
regulation, or appropriate authority outside the agency;
(iii) The agency rules or regulations were not issued by the agency
or by any primary national subdivision of the agency;
(iv) The exclusive representative represents an appropriate unit
including not less than a majority of the employees in the rule- or
regulation-issuing agency or primary national subdivision; or
(v) No compelling need exists for the rules or regulations to bar
negotiations.
* * * * *
(e) Proposal means any matter offered for bargaining that has not
been agreed to by the parties. If a petition for review concerns more
than one proposal, then the term ``proposal'' includes each proposal
concerned.
(f) Provision means any matter that has been disapproved by the
agency head on review pursuant to 5 U.S.C. 7114(c). If a petition for
review concerns more than one provision, then the term ``provision''
includes each provision concerned.
* * * * *
0
4. Revise Sec. 2424.10 to read as follows:
Sec. 2424.10 Collaboration and Alternative Dispute Resolution
Program.
Where an exclusive representative and an agency are unable to
resolve disputes that arise under this part, they may request
assistance from the Collaboration and Alternative Dispute Resolution
(CADR) Program or the Office of Case Intake and Publication (CIP),
which will refer requests to the CADR Program. Upon request, as
resources permit, and as agreed upon by the parties, CADR
representatives will attempt to assist the parties to resolve these
disputes. Parties seeking information or assistance under this part may
call the CADR Office at (771) 444-5802 or the Office of CIP at (771)
444-5805, or write those offices at 1400 K Street NW, Washington, DC
20424-0001. A brief summary of CADR activities is available on the
internet at <a href="http://www.flra.gov">www.flra.gov</a>.
0
5. Revise Sec. 2424.11 to read as follows:
Sec. 2424.11 Requesting and providing written allegations concerning
the duty to bargain.
(a) General. An exclusive representative may file a petition for
review after receiving a written allegation concerning the duty to
bargain from the agency. An exclusive representative also may file a
petition for review if it requests in writing that the agency provide
it with a written allegation concerning the duty to bargain and the
agency does not respond to the request within ten (10) days.
(b) Agency allegation in response to request. The agency has an
obligation to respond within ten (10) days to a written request by the
exclusive representative for a written allegation concerning the duty
to bargain. The agency's allegation in response to the exclusive
representative's request must be in writing and must be served in
accord with Sec. 2424.2(g).
(copyright) Unrequested agency allegation. If an agency provides an
exclusive representative with an unrequested written allegation
concerning the duty to bargain, then the exclusive representative may
either file a petition for review under this part, or continue to
bargain and subsequently request in writing a written allegation
concerning the duty to bargain, if necessary. If the exclusive
representative chooses to file a petition for review based on an
unrequested written allegation concerning the duty to bargain, then the
time limit in Sec. 2424.21(a)(1) applies.
0
6. Amend Sec. 2424.21 by revising paragraph (b) to read as follows:
Sec. 2424.21 Time limits for filing a petition for review.
* * * * *
(b) If the agency has not served a written allegation on the
exclusive representative within ten (10) days after the agency's
principal bargaining representative has received a written request for
such allegation, as provided in Sec. 2424.11(a), then the petition may
be filed at any time, subject to the following:
(1) If the agency serves a written allegation on the exclusive
representative more than ten (10) days after receiving a written
request for such allegation, then the petition must be filed within
fifteen (15) days after the date of service of that allegation on the
exclusive representative.
(2) [Reserved]
0
7. Revise Sec. 2424.22 to read as follows:
Sec. 2424.22 Exclusive representative's petition for review; purpose;
divisions; content; service.
(a) Purpose. The purpose of a petition for review is to initiate a
negotiability proceeding and provide the agency with notice that the
exclusive representative requests a decision from the Authority that a
proposal or provision is within the duty to bargain or not contrary to
law, respectively.
(b) Divisions. The petition will be resolved according to how the
exclusive representative divides matters into proposals or provisions.
If the exclusive representative seeks a negotiability determination on
particular matters standing alone, then the exclusive representative
must submit those matters as distinct proposals or provisions. However,
the exclusive representative will have an opportunity to divide
proposals or provisions into separate parts when the exclusive
representative files a response under Sec. 2424.25.
I Content. You must file a petition for review on a form that the
Authority has provided for that purpose, or in a substantially similar
format. You meet this requirement if you file your petition
[[Page 62457]]
electronically through use of the eFiling system on the FLRA's website
at <a href="http://www.flra.gov">www.flra.gov</a>. That website also provides copies of petition forms.
You must date the petition, unless you file it electronically through
use of the FLRA's eFiling system. And, regardless of how you file the
petition, you must ensure that it includes the following:
(1) The exact wording and explanation of the meaning of the
proposal or provision, including an explanation of special terms or
phrases, technical language, or other words that are not in common
usage, as well as how the proposal or provision is intended to work;
(2) Specific citation to any law, rule, regulation, section of a
collective bargaining agreement, or other authority that you rely on in
your argument or that you reference in the proposal or provision, and a
copy of any such material that the Authority cannot easily access
(which you may upload as attachments if you file the petition
electronically through use of the FLRA's eFiling system);
(i) An explanation of how the cited law, rule, regulation, section
of a collective bargaining agreement, or other authority relates to
your argument, proposal, or provision;
(ii) [Reserved]
(3) A statement as to whether the proposal or provision is also
involved in an unfair labor practice charge under part 2423 of this
subchapter, a grievance pursuant to the parties' negotiated grievance
procedure, or an impasse procedure under part 2470 of this subchapter,
and whether any other petition for review has been filed concerning a
proposal or provision arising from the same bargaining or the same
agency head review;
(i) Documents relevant to the statement, including a copy of any
related unfair labor practice charge, grievance, request for impasse
assistance, or other petition for review; and
(ii) [Reserved]
(4) Any request for a hearing before the Authority and the reasons
supporting such request, with the understanding that the Authority
rarely grants such requests.
0
8. Revise Sec. 2424.23 to read as follows:
Sec. 2424.23 Post-petition conferences; conduct and record.
(a) Scheduling a post-petition conference. The FLRA will, in its
discretion, schedule a post-petition conference to be conducted by an
FLRA representative by telephone, in person, or through other means.
Unless the Authority or an FLRA representative directs otherwise,
parties must observe all time limits in this part, regardless of
whether a post-petition conference is conducted or may be conducted.
(b) Conduct of conference. The post-petition conference will be
conducted with representatives of the exclusive representative and the
agency, who must be prepared and authorized to discuss, clarify, and
resolve matters including the following:
(1) The meaning of the proposal or provision in dispute;
(2) Any disputed factual issue(s);
(3) Negotiability dispute objections and bargaining obligation
claims regarding the proposal or provision; and
(4) Status of any proceedings--including an unfair labor practice
charge under part 2423 of this subchapter, a grievance under the
parties' negotiated grievance procedure, or an impasse procedure under
part 2470 of this subchapter--that are directly related to the
negotiability petition.
[euro] Discretionary extension of time limits. The FLRA
representative may, on determining that it will effectuate the purposes
of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
7101 et seq., and this part, extend the time limits for filing the
agency's statement of position and any subsequent filings.
(d) Record of the conference. After the post-petition conference
has been completed, the FLRA representative will prepare, and the FLRA
will serve on the parties, a written record that includes whether the
parties agree on the meaning of the disputed proposal or provision, the
resolution of any disputed factual issues, and any other appropriate
matter[euro]
(e) Hearings. Instead of, or in addition to, conducting a post-
petition conference, the Authority may exercise its discretion under
Sec. 2424.31 to hold a hearing or take other appropriate action to aid
in decision making.
0
9. Revise Sec. 2424.24 to read as follows:
Sec. 2424.24 Agency's statement of position; purpose; time limits;
content; service.
(a) Purpose. The purpose of the agency's statement of position is
to inform the Authority and the exclusive representative why a proposal
or provision is outside the duty to bargain or contrary to law,
respectively, and whether the agency disagrees with any facts or
arguments made by the exclusive representative in the petition.
(b) Time limit for filing. Unless the time limit for filing has
been extended pursuant to Sec. 2424.23 or part 2429 of this
subchapter, the agency must file its statement of position within
thirty (30) days after the date the head of the agency receives a copy
of the petition for review.
I Content. You must file your statement of position on a form that
the Authority has provided for that purpose, or in a substantially
similar format. You meet this requirement if you file your statement
electronically through use of the eFiling system on the FLRA's website
at <a href="http://www.flra.gov">www.flra.gov</a>. That website also provides copies of statement forms.
You must date your statement, unless you file it electronically through
use of the eFiling system. And, regardless of how you file your
statement, your statement must:
(1) Withdraw either:
(i) The allegation that the duty to bargain in good faith does not
extend to the exclusive representative's proposal, or
(ii) The disapproval of the provision under 5 U.S.C. 7114(c); or
(2) Set forth in full your position on any matters relevant to the
petition that you want the Authority to consider in reaching its
decision, including: A statement of the arguments and authorities
supporting any bargaining obligation or negotiability claims; any
disagreement with claims that the exclusive representative made in the
petition for review; specific citation to, and explanation of the
relevance of, any law, rule, regulation, section of a collective
bargaining agreement, or other authority on which you rely; and a copy
of any such material that the Authority may not easily access (which
you may upload as attachments if you file your statement of position
electronically through use of the FLRA's eFiling system). Your
statement of position must also include the following:
(i) If different from the exclusive representative's position, an
explanation of the meaning the agency attributes to the proposal or
provision and the reasons for disagreeing with the exclusive
representative's explanation of meaning;
(ii) If different from the exclusive representative's position, an
explanation of how the proposal or provision would work, and the
reasons for disagreeing with the exclusive representative's
explanation;
(3) Status of any proceedings--including an unfair labor practice
charge under part 2423 of this subchapter, a grievance under the
parties' negotiated grievance procedure, or an impasse procedure under
part 2470 of this subchapter--that are directly related to the
negotiability petition, and whether any other petition for review has
been filed concerning a
[[Page 62458]]
proposal or provision arising from the same bargaining or the same
agency head review;
(i) If they have not already been provided with the petition,
documents relevant to the status updates, including a copy of any
related unfair labor practice charge, grievance, request for impasse
assistance, or other petition for review; and
(ii) [Reserved]
(4) Any request for a hearing before the Authority and the reasons
supporting such request, with the understanding that the Authority
rarely grants such requests.
(d) Service. A copy of the agency's statement of position,
including all attachments, must be served in accord with Sec.
2424.2(g).
0
10. Revise paragraphs (a) through (c) of Sec. 2424.25 to read as
follows:
Sec. 2424.25 Response of the exclusive representative; purpose; time
limits; content; severance; service.
(a) Purpose. The purpose of the exclusive representative's response
is to inform the Authority and the agency why, despite the agency's
arguments in its statement of position, the proposal or provision is
within the duty to bargain or not contrary to law, respectively, and
whether the exclusive representative disagrees with any facts or
arguments in the agency's statement of position.
(b) Time limit for filing. Unless the time limit for filing has
been extended pursuant to Sec. 2424.23 or part 2429 of this
subchapter, within fifteen (15) days after the date the exclusive
representative receives a copy of an agency's statement of position,
the exclusive representative must file a response.
(copyright) Content. You must file your response on a form that the
Authority has provided for that purpose, or in a substantially similar
format. You meet this requirement if you file your response
electronically through use of the eFiling system on the FLRA's website
at <a href="http://www.flra.gov">www.flra.gov</a>. That website also provides copies of response forms.
With the exception of severance under paragraph (d) of this section,
you must limit your response to the matters that the agency raised in
its statement of position. You must date your response, unless you file
it electronically through use of the FLRA's eFiling system. And,
regardless of how you file your response, you must ensure that it
identifies any disagreement with the agency's bargaining obligation or
negotiability claims. You must: State the arguments and authorities
supporting your opposition to any agency argument; include specific
citation to, and explanation of the relevance of, any law, rule,
regulation, section of a collective bargaining agreement, or other
authority on which you rely; and provide a copy of any such material
that the Authority may not easily access (which you may upload as
attachments if you file your response electronically through use of the
FLRA's eFiling system). You are not required to repeat arguments that
you made in your petition for review. If not included in the petition
for review, then you must state the arguments and authorities
supporting your position on all of the relevant bargaining obligation
and negotiability matters identified in Sec. 2424.2(a) and (c),
respectively.
(d) Severance. The exclusive representative may, of its own accord,
accomplish the severance of a previously submitted proposal or
provision. To accomplish severance, the exclusive representative must
identify the proposal or provision that the exclusive representative is
severing and set forth the exact wording of the newly severed
portion(s). Further, as part of the exclusive representative's
explanation and argument about why the newly severed portion(s) are
within the duty to bargain or not contrary to law, the exclusive
representative must explain how the severed portion(s) stand alone with
independent meaning, and how the severed portion(s) would operate. The
explanation and argument in support of the severed portion(s) must meet
the same requirements for specific information set forth in
paragra(copyright)(c) of this section, and must satisfy the exclusive
representative's burdens under Sec. 2424.32.
* * * * *
0
11. Revise Sec. 2424.26 to read as follows:
Sec. 2424.26 Agency's reply; purpose; time limits; content; service.
(a) Purpose. The purpose of the agency's reply is to inform the
Authority and the exclusive representative whether and why it disagrees
with any facts or arguments made for the first time in the exclusive
representative's response.
(b) Time limit for filing. Unless the time limit for filing has
been extended pursuant to Sec. 2424.23 or part 2429 of this
subchapter, within fifteen (15) days after the date the agency receives
a copy of the exclusive representative's response to the agency's
statement of position, the agency may file a reply.
(c) Content. You must file your reply on a form that the Authority
has provided for that purpose, or in a substantially similar format.
You meet this requirement if you file your reply electronically through
use of the eFiling system on the FLRA's website at <a href="http://www.flra.gov">www.flra.gov</a>. That
website also provides copies of reply forms. You must limit your reply
to matters that the exclusive representative raised for the first time
in its response. You must date your reply, unless you file it
electronically through use of the FLRA's eFiling system. And,
regardless of how you file your reply, you must ensure that it
identifies any disagreement with the exclusive representative's
assertions in its response, including your disagreements with
assertions about the bargaining obligation and negotiability matters
identified in Sec. 2424.2(a) and (c), respectively. You must: State
the arguments and authorities supporting your position; include
specific citation to, and explanation of the relevance of, any law,
rule, regulation, section of a collective bargaining agreement, or
other authority on which you rely; and provide a copy of any such
material that the Authority may not easily access (which you may upload
as attachments if you file your reply electronically through use of the
FLRA's eFiling system). You are not required to repeat arguments that
you made in your statement of position.
(d) Service. A copy of the agency's reply, including all
attachments, must be served in accord with Sec. 2424.2(g).
0
12. Revise Sec. 2424.27 to read as follows:
Sec. 2424.27 Additional submissions to the Authority.
The Authority will not consider any submission filed by any party
other than those authorized under this part, provided however that the
Authority may, in its discretion, grant permission to file an
additional submission based on a written request showing extraordinary
circumstances by any party. The additional submission must be filed
with the written request. All documents filed under this section must
be served in accord with Sec. 2424.2(g).
0
13. Revise Sec. 2424.30 to read as follows:
Sec. 2424.30 Procedure through which the petition for review will be
resolved.
(a) Exclusive representative has filed related unfair labor
practice charge or grievance alleging an unfair labor practice. Except
for proposals or provisions that are the subject of an agency's
compelling need claim under 5 U.S.C. 7117(a)(2), the Authority will
dismiss a petition for review when an exclusive representative files an
unfair labor practice charge pursuant to part 2423 of this subchapter
or a grievance alleging an unfair labor practice under
[[Page 62459]]
the parties' negotiated grievance procedure, and the charge or
grievance concerns issues directly related to the petition for review
filed pursuant to this part. The dismissal will be without prejudice to
the right of the exclusive representative to refile the petition for
review after the unfair labor practice charge or grievance has been
resolved administratively, including resolution pursuant to an
arbitration award that has become final and binding. No later than
thirty (30) days after the date on which the unfair labor practice
charge or grievance is resolved administratively, the exclusive
representative may refile the petition for review, and the Authority
will determine whether resolution of the petition is still required.
For purposes of this subsection, a grievance is resolved
administratively when:
(1) The exclusive representative withdraws the grievance;
(2) The parties mutually resolve the grievance;
(3) An arbitrator has issued an award resolving the grievance, and
the 30-day period under 5 U.S.C. 7122(b) has passed without an
exception being filed; or
(4) An arbitrator has issued an award resolving the grievance, a
party has filed an exception to that award, and the Authority has
issued a decision resolving that exception.
(b) Exclusive representative has not filed related unfair labor
practice charge or grievance alleging an unfair labor practice. The
petition will be processed as follows:
(1) No bargaining obligation dispute exists. The Authority will
resolve the petition for review under the procedures of this part.
(2) A bargaining obligation dispute exists. The exclusive
representative may have an opportunity to file an unfair labor practice
charge pursuant to part 2423 of this subchapter or a grievance under
the parties' negotiated grievance procedure concerning the bargaining
obligation dispute, and, where the exclusive representative pursues
either of these courses, the Authority will proceed in accord with
paragraph (a) of this section. If the exclusive representative does not
file an unfair labor practice charge or grievance concerning the
bargaining obligation dispute, then the Authority will proceed to
resolve all disputes necessary for disposition of the petition unless,
in its discretion, the Authority determines that resolving all disputes
is not appropriate because, for example, resolution of the bargaining
obligation dispute under this part would unduly delay resolution of the
negotiability dispute, or the procedures in another, available
administrative forum are better suited to resolve the bargaining
obligation dispute.
0
14. Amend Sec. 2424.31 by revising the heading, introductory text, and
paragraph (copyright) to read as follows:
Sec. 2424.31 Hearings and other appropriate action.
When necessary to resolve disputed issues of material fact in a
negotiability or bargaining obligation dispute, or when it would
otherwise aid in decision making, the Authority, or its designated
representative, may, in its discretion:
* * * * *
(c) Refer the matter to a hearing pursuant to 5 U.S.C. 7117(b)(3)
or (c)(5); or
* * * * *
0
15. Revise Sec. 2424.32 to read as follows:
Sec. 2424.32 Parties' responsibilities; failure to raise, support, or
respond to arguments; failure to participate in conferences or respond
to Authority orders.
(a) Responsibilities of the exclusive representative. The exclusive
representative has the burden of explaining the meaning, operation, and
effects of the proposal or provision; and raising and supporting
arguments that the proposal or provision is within the duty to bargain,
within the duty to bargain at the agency's election, or not contrary to
law, respectively.
(b) Responsibilities of the agency. The agency has the burden of
explaining the agency's understanding of the meaning, operation, and
effects of the proposal or provision, if the agency disagrees with the
exclusive representative's explanations; and raising and supporting
arguments that the proposal or provision is outside the duty to bargain
or contrary to law, respectively.
(c) Responsibilities to sufficiently explain. Each party has the
burden to give sufficiently detailed explanations to enable the
Authority to understand the party's position regarding the meaning,
operation, and effects of a proposal or provision. A party's failure to
provide such explanations may affect the Authority's decision in a
manner that is adverse to the party.
(d) Failure to raise, support, or respond to arguments.
(1) Failure to raise and support an argument may, in the
Authority's discretion, be deemed a waiver of such argument. Absent
good cause:
(i) Arguments that could have been but were not raised by an
exclusive representative in the petition for review, or made in its
response to the agency's statement of position, may not be made in this
or any other proceeding; and
(ii) Arguments that could have been but were not raised by an
agency in the statement of position, or made in its reply to the
exclusive representative's response, may not be raised in this or any
other proceeding.
(2) Failure to respond to an argument or assertion raised by the
other party may, in the Authority's discretion, be treated as conceding
such argument or assertio(copyright)(e) Failure to participate in
conferences; failure to respond to Authority orders. Where a party
fails to participate in a post-petition conference pursuant to Sec.
2424.23, a direction or proceeding under Sec. 2424.31, or otherwise
fails to provide timely or responsive information pursuant to an
Authority order, including an Authority procedural order directing the
correction of technical deficiencies in filing, the Authority may, in
addition to those actions set forth in paragraph (d) of this section,
take any other action that, in the Authority's discretion, it deems
appropriate, including dismissal of the petition for review (with or
without prejudice to the exclusive representative's refiling of the
petition for review), and granting the petition for review and
directing bargaining or rescission of an agency head disapproval under
5 U.S.C. 7114(c) (with or without conditions).
0
16. Amend Sec. 2424.40 by revising paragraphs (b) and (c) to read as
follows:
Sec. 2424.40 Authority decision and order.
* * * * *
(b) Cases involving proposals. If the Authority finds that the duty
to bargain extends to the proposal, then the Authority will order the
agency to bargain concerning the proposal. If the Authority finds that
the duty to bargain does not extend to the proposal, then the Authority
will dismiss the petition for review as to that proposal. If the
Authority finds that the proposal is bargainable only at the election
of the agency, then the Authority will so state. If the Authority
resolves a negotiability dispute by finding that a proposal is within
the duty to bargain, but there are unresolved bargaining obligation
dispute claims, then the Authority will order the agency to bargain in
the event its bargaining obligation claims are resolved in a manner
that requires bargaining.
(d) Cases involving provisions. If the Authority finds that a
provision is not contrary to law, rule, or regulation, or is
bargainable at the election of the agency, then the Authority will
direct the agency to rescind its disapproval of
[[Page 62460]]
such provision in whole or in part as appropriate. If the Authority
finds that a provision is contrary to law, rule, or regulation, then
the Authority will dismiss the petition for review as to that
provision.
0
17. Revise Sec. 2424.41 to read as follows:
Sec. 2424.41 Compliance.
The exclusive representative may report to the appropriate Regional
Director an agency's failure to comply with an order issued in
accordance with Sec. 2424.40. The exclusive representative must report
such failure within a reasonable period of time following expiration of
the 60-day period under 5 U.S.C. 7123(a), which begins on the date of
issuance of the Authority order. If, on referral from the Regional
Director, the Authority finds such a failure to comply with its order,
the Authority will take whatever action it deems necessary to secure
compliance with its order, including enforcement under 5 U.S.C.
7123(b).
0
18. Amend Sec. 2424.50 by revising the introductory text to read as
follows:
Sec. 2424.50 Illustrative criteria.
A compelling need exists for an agency rule or regulation
concerning any condition of employment when the rule or regulation was
issued by the agency or any primary national subdivision of the agency,
and the agency demonstrates that the rule or regulation satisfies one
of the following illustrative criteria:
* * * * *
Approved: August 31, 2023.
Rebecca J. Osborne,
Federal Register Liaison, Federal Labor Relations Authority.
[FR Doc. 2023-19269 Filed 9-11-23; 8:45 am]
BILLING CODE 7627-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.