OAS-MRA Letterhead
February 8, 1999

MEMORANDUM FOR LABOR RELATIONS SPECIALISTS AT MACOMS,
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SUBJECT: Revised Negotiability Regulation - Labor Relations Bulletin #409

In an effort to expedite processing of negotiability appeals and to facilitate their resolution, the Federal Labor Relations Authority (the Authority) has revised its regulation, Expedited Review of Negotiability Issues, 5 C.F.R. Part 2424. (63 Fed. Reg. 66405 (1998).) Unlike the revised ULP regulation discussed in Labor Relations Bulletin 408, the revision to the negotiability regulation provides dramatic changes to the current process. Even with the revision, this office will continue to prepare all of Army's written submissions to the Authority involving negotiability appeals. This includes the agency's position on the duty to bargain, our statement of position and any subsequent written submissions.

The enclosed bulletin discusses the revision to the negotiability regulation and the possible impact stemming from the changes.

Please share this bulletin with your labor attorney and other interested management officials.

Should you have any questions concerning this bulletin or the revised negotiability regulation, please contact David Helmer at DSN 225-4011, or at (703) 695-4011.

 

 

((((( SIGNED )))))
Elizabeth B. Throckmorton
Acting Director for Civilian Personnel
Management and Operations

Enclosure

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LRB #409 spacer February 8, 1999
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Revised Negotiability Regulation

The Federal Labor Relations Authority (the Authority) has Revised Its Negotiability Regulation

Hard on the heels of the General Counsel's (GC's) revision to its ULP regulation, the Authority, on December 2, 1998, issued a revision to its negotiability regulation. (5 CFR Part 2424.) Unlike the GC's revision, though, these changes will dramatically modify how the Army handles negotiability appeals.

The following provides a section-by-section analysis of the regulatory revision, how Army will process negotiability appeals in light of the changes and a discussion of the possible impacts stemming from the revision.

An interesting aside--the Authority, in an effort to promote truth in advertising, has changed the name of Part 2424 from "Expedited Review of Negotiability Issues" to "Negotiability Proceedings."

5 CFR 2424 Subpart A - Applicability of This Part and Definitions

5 CFR 2424.1 - Applicability of This Part

The revised negotiability regulation applies to all negotiability petitions filed after April 1, 1999.

5 CFR 2424.2 - Definitions

The Authority has defined certain phrases that are key for understanding the requirements of the regulation. The two most important definitions are:

    Bargaining obligation dispute: This is a dispute between the parties over whether there is an obligation to bargain given the specific circumstances of the case, not whether the proposal violates law, rule or regulation. Examples are disputes over whether a proposal is covered by the parties' collective bargaining agreement or whether a proposal is de minimus and, therefore, there is no obligation to bargain.

    Negotiability Dispute: This is a dispute between the parties over whether the proposal violates law, rule or government-wide regulation or an agency regulation for which there is a compelling need. Negotiability disputes can exist absent, or concurrent with, a bargaining obligation dispute.

Other definitions of interest include a definition of: Collaboration and Alternative Dispute Resolution Program (an Authority program that assists the parties in reaching agreements to resolve disputes); petition for review (a union's negotiability appeal filed with the Authority); provision (contract language disapproved during the agency head review); severance (the division of a proposal or provision into separate parts having independent meaning for the purpose of determining whether any of the separate parts are within the duty to bargain); and written allegation concerning the duty to bargain (an agency allegation that the duty to bargain in good faith does not extend to a proposal.)

Changes From the Previous Regulation and Comments

The only change of note is the Authority's definitions of bargaining obligation dispute and negotiability dispute.

5 CFR 2424 Subpart B - Alternative Dispute Resolution; Requesting and Providing Allegations Concerning the Duty to Bargain

5 CFR 2424.10 - Collaboration and Alternative Dispute Resolution

This section publicizes the Authority's Collaboration and Alternative Dispute Resolution Program (CADR) and advises the parties that where they are unable to resolve negotiability issues, they can request the assistance of the CADR. Parties interested in using the CADR should call (202) 482-6503.

Changes From the Previous Regulation and Comments

While promoting the use of CADR is new to the regulation, the CADR program has been around for a number of years. Activities are encouraged to avail themselves of this service. Typically, where a dispute can be resolved prior to formal administrative procedures, the better the outcome.

5 CFR 2424.11 - Requesting and Providing Written Allegations Concerning the Duty to Bargain

The union may file a negotiability petition with the Authority after receiving a written allegation of nonnegotiability from the activity or after 10 days from requesting, in writing, a written allegation of nonnegotiability if the activity does not respond. The activity's allegation of nonnegotiability must be in writing and properly served on the union. If an activity provides an unrequested written allegation of nonnegotiability, the union can file a petition with the Authority or continue to bargain and subsequently request, in writing, an allegation of nonnegotiability. The union can then file a negotiability petition upon receipt of the activity's written allegation of nonnegotiability; or after ten days from requesting the allegation if the activity does not respond.

Changes From the Previous Regulation and Comments

No change from the previous procedures. As a reminder, activities should not submit a written allegation of nonnegotiability in response to a union's verbal request.

The reason for this is that the Authority's procedures establish binding filing requirements on the parties. If the union submits a written request for an allegation of nonnegotiability and the activity responds in writing within 10 days, a union's negotiability petition will be dismissed if it is not filed within 15 days of receipt of the activity's written allegation. If an activity provides the union with a written allegation in response to a verbal request, the union is not under any time restriction to file its petition.

Prior to submitting a written allegation of nonnegotiability, the activity should coordinate with its MACOM, HQDA or Field Advisory Services (FAS).

5 CFR Subpart C - Filing and Responding to a Petition for Review; Conferences

5 CFR 2424.20 - Who May File a Petition for Review

This section simply provides that a union, which is party to the negotiations, may file a petition for review.

Changes from the Previous Regulation and Comments

This is no change from the previous regulation. Only a union can file a negotiability petition; management cannot.

5 CFR 2424.21 - Time Limits for Filing a Petition for Review

The union can file a petition for review within 15 days after the date of service of either the activity's written allegation of nonnegotiability or an agency head's disapproval of a contract provision. If the activity does not serve a written allegation of nonnegotiability on the union within 10 days after the activity's principal bargaining representative has received a written request for such allegation, then the petition can be filed at any time.

Changes from the Previous Regulation and Comments

Again, nothing new here. Activities should provide a written allegation of nonnegotiability within 10 days of receipt of a written request from the union.

5 CFR 2424.22 - Exclusive Representative's Petition for Review; Purpose; Content; Severance; Service

The purpose of a petition is to initiate a negotiability proceeding and to provide the activity notice that a request has been submitted to the Authority. A petition for review must be dated and include:

  • The exact wording of the proposal/provision;
  • An explanation of technical terms or phrases or other words that are not in common usage;
  • A discussion of how the proposal is intended to work;
  • Specific citations to any law, rule, regulation or collective bargaining provision relied on by the union and a copy of any such material not easily available to the Authority;
  • A statement as to whether the proposal/provision is also involved in a ULP, grievance, or impasse and whether any other petition for review has been filed concerning the proposal/provision;
  • Any request for a hearing before the Authority and supporting arguments;
  • A table of contents and a table of legal authorities cited if the petition exceeds 25 double-spaced pages in length; and
  • If desired, a request that the proposal or provision be severed (severance) so the Authority can render a negotiability finding on each aspect of the proposal/provision. If a request for severance is made, the union must support its request by explaining how each severed portion of the proposal/provision may stand alone, and how each portion would operate.

The petition for review, including all attachments, must be properly served on the parties.

Changes from the Previous Regulation and Comments

This section clarifies what the union is required to submit in its negotiability petition. The revised regulation excludes previous language which provided that filing an "incomplete petition for review will result in the exclusive representative being asked to provide the missing or incomplete information." The Authority noted, though, that this will continue to be the Authority's practice. However, the fact that the Authority will allow the parties time to correct minor technical errors does not mean it will allow parties to correct other deficiencies, such as failure to raise and support, or respond to, an issue or argument.

While not specifically stated in this section of the regulation, the union may argue in its initial petition, or in its response to the agency's statement of position, that a proposal/provision should be severed, that it is a procedure, or an appropriate arrangement.

5 CFR 2424.23 - Post-petition Conferences; Conduct and Record

Once the Authority receives a petition for review, a representative of the Authority, where appropriate, will schedule a post-petition conference to be conducted either telephonically or in person. Efforts will be made to schedule the conference within ten days after receipt of the petition for review.

The conference will be with representatives of the activity/agency, the union and the Authority. Management and union representatives must be prepared and authorized to discuss, clarify, and resolve matters including:

  • The meaning of the proposal/provision;
  • Any disputed factual issue(s);
  • Negotiability dispute objections and bargaining obligation claims;
  • Whether the proposal/provision is involved in a ULP, negotiated grievance, or impasse; and
  • Whether an extension of time for filing the agency's statement of position, or any other subsequent filing, is requested.

At the end of the post-petition conference, or shortly thereafter, the FLRA representative will prepare and serve on the parties a written statement that includes whether the parties agree on the meaning of the proposal/provision, the resolution of disputed factual issues and any other appropriate matter.

Changes from the Previous Regulation and Comments

Big, big, big changes here. The Authority's revision creates a post-petition conference where the parties are obligated to discuss all issues surrounding the negotiability appeal. This includes not only the "negotiability" of the proposal, but also whether there is a bargaining obligation concerning the union's proposal. Additionally, modifications to proposal language may be suggested by the Authority to have the proposal more accurately reflect the intent of the parties. Luckily, when the Authority first proposed this rule, it provided that the parties would be unable to raise any matters in the negotiability appeal that were not raised in the post-complaint hearing. This requirement has been deleted in the final regulation. Now, even if we happen not to raise a matter during the conference, it can still be raised in the agency's statement of position.

This conference is not a mediation or settlement effort on the part of the Authority, though such services may be offered. Rather, the intent is to clarify the negotiability issues. The Authority has indicated that these conferences will normally be handled telephonically.

Under the current procedures, when a union files a negotiability petition, this office, after informal coordination with the activity, prepares the agency's statement of position. After the union submits its written response, the Authority issues a written decision addressing the negotiability of the proposal/provision. The Authority does not address an activity's bargaining obligation with regard to that proposal/provision. Bargaining obligation disputes were not currently addressed in negotiability cases, rather, they are settled in an unfair labor practice forum. Under the revised regulation, the negotiability of the proposal, as well as the obligation to bargain, can be addressed in the post-petition conference. As such, all appropriate agency representatives will have to coordinate, and be fully prepared to address, all aspects of the negotiability case prior to the teleconference.

Up until the actual filing of a negotiability petition by a union under the revised system, there shouldn't be much change from the way these matters are handled under the current system. An activity wishing to declare a union proposal nonnegotiable should coordinate this matter with its MACOM, this office or FAS.

Once the union petition is filed under the revised system, though, we're into a whole new ball game. Upon the filing of a petition, the Authority representative will contact the union and management to set up a post-petition conference. The Authority has indicated that it will abide by our decision regarding which agency official should be notified of the meeting by the Authority. It appears that such notification will probably be made to FAS or this office. No matter which management representative the Authority contacts (installation, HQDA or FAS), that office will be responsible for contacting all the other appropriate management parties. Each location will then be responsible for assuring its own legal office participation. It is expected that, at a minimum, all three organizations will participate in the post-petition conference (the installation, HQDA and FAS.) Additional participants could be the MACOM, the appropriate Civilian Personnel Operations Center (CPOC), the Civilian Personnel Operation Center Management Agency (CPOCMA) or any other appropriate office or agency (e.g., OPM.)

While this office and FAS could discuss at the post-petition conference why a particular proposal/provision violates law, rule or regulation, the activity will be in the best position to address any applicable bargaining obligation arguments. That is, Is the matter covered by the collective bargaining agreement? Is the change de minimus? Has the union waived its right to bargain over the particular change?

While it is not necessary for management to raise every possible argument at the post-petition conference, the various management participants need to have internally discussed the possible appropriate defenses prior to the conference.

To assure that management presents a comprehensive position to the Authority, once it is aware that the union will file, or has filed, a petition, the appropriate management officials will participate in an internal management teleconference. The teleconference will address the proposal/provision, the activity's position with regard to the matter and any bargaining obligation issues that should be raised.

While the Authority's post-petition conference may create an administrative headache, it should not drastically impact on our overall success rate before the Authority. In fact, it just may help the parties informally resolve their disputes instead of waiting the year or so for an Authority decision.

The bottom line here is that under the current regulation, once the union files a negotiability petition, responsibility for presenting the agency position rests solely with HQDA or FAS. Under the revised regulation, preparing the agency position has now become much more of a team approach with the parties coordinating their positions early on in the process.

5 CFR 2424.24 - Agency's Statement of Position; Purpose; Time Limits; Content; Severance; Service

The purpose of an agency's statement of position is to inform the Authority and the union why a proposal/provision is not within the duty to bargain or why it violates law, rule or regulation. Unless the time limit for filing a statement of position has been extended during the post-petition conference or the Authority has granted an extension, the agency must file its position within thirty days after the date the head of the agency receives a copy of the union's petition for review. HQDA will continue to file Army's negotiability statements of position.

The statement of position must be on a form provided by the Authority or in a substantially similar format. It will be dated and must:

  • 1. Withdraw the allegation of nonnegotiability or the agency head's disapproval of the provision; or
  • 2. Set forth the agency's positions on any matters relevant to the case. This includes all arguments concerning the bargaining obligation and the negotiability dispute. Also included in the statement of position should be any disagreements with the union's petition, specific cites to law, rule or regulation or collective bargaining agreement relied upon by the agency. A copy of such material must also be included if not easily available to the Authority.

Additionally, the statement of position must include:

  • If different from the union's position, an explanation of the meaning of the proposal/provision and the reasons for disagreeing with the union's explanation of meaning;
  • If different from the union's position, an explanation of how the proposal would work, and the reasons for disagreeing with the union's explanation;
  • A statement as to whether the proposal/provision is also involved in a ULP, negotiated grievance or impasse panel proceeding and whether any other petition for review has been filed;
  • Any request for a hearing;
  • A table of contents and a table of legal authorities cited if the statement of position is over 25 double-spaced pages in length; and
  • If the exclusive representative requested severance of the proposals and the agency opposes, explain the reason for opposing.

A copy of the agency's statement of position must be properly served on the union.

Changes from the Previous Regulation and Comment

The important change here is that the agency, in its statement of position, is obligated to raise all of its arguments regarding both the negotiability of the proposal/provision and any bargaining obligation. No new arguments can be raised later in this proceeding or in any other proceeding if not raised in the statement of position. This is a huge change from the previous regulation and is discussed in greater detail in section 2424.32.

5 USC 2424.25 - Response of the Exclusive Representative; Purpose; Time Limits; Content; Severance; Service

The purpose of the union's response is to inform the Authority and the agency why, despite the agency's arguments, the proposal is negotiable. At this point (or in its petition for review), the union can raise that its proposal is an appropriate arrangement, a procedure, a permissive right or it can request severance of the proposal/provision. Unless the time limit has been extended, the union has 15 days after the date it receives a copy of the agency's statement of position to file its response.

The response must be on a form provided by the Authority or be in a substantially similar format. Except for raising the matters discussed in the previous paragraph, the union's response is limited to matters raised in the agency's statement of position. It must also include:

  • Any disagreement with the agency's bargaining obligation claim;
  • Any arguments not included in its petition supporting its assertion that the proposal/provision does not affect management's rights or that an exception to those rights applies (e.g., a permissive right, an appropriate arrangement, a procedure or it enforces an applicable law within the meaning of 5 USC 7106(a)(2);
  • Any allegation that agency rules or regulations relied upon by the agency violate law, rule or regulation, the rules were not issued by the agency or a primary national subdivision (Army) or that there is no compelling need for the regulation; and
  • A table of contents and legal authorities if over 25 double-spaced pages.

A copy of the union's response must be properly served on the parties.

Changes from the Previous Regulation and Comment

The revised regulation provides a couple of new items, though nothing earth shattering. Probably the most significant is that the regulation requires the union to raise any arguments concerning exceptions to management rights (e.g., appropriate arrangements.) While this requirement was enforced via Authority case law, this is the first time the requirement is spelled out in its regulation. Other less significant revisions include a statement as to the purpose of the response and more detailed specifics as to what is required in the union's response.

As with management, the union is precluded from raising new arguments in this or other proceedings after the filing of the response. This limitation is discussed in greater detail in section 2424.32.

5 CFR 2424.26 - Agency's Reply; Purpose; Time Limits; Content; Service

The purpose of an agency's reply is to inform the Authority and the union whether and why the agency disagrees with any facts or arguments made by the union for the first time in its response. Unless an extension has been granted, the agency has 15 days from the time it receives the union's response to file its reply. The reply must be submitted on an Authority form or in a substantially similar format and is limited solely to matters raised for the first time in the union's response. The reply must be dated and include:

  • Any disagreement with the union's assertion that the proposal/provision is an exception to management's rights (e.g., it is not an appropriate arrangement or procedures); and
  • Any arguments disputing the union's claim in its response that an agency or primary national subdivision regulation does not bar negotiations.

The reply must include tables of contents and legal authorities if it exceeds 25 double-spaced pages. Additionally, if the union requests severance of the proposal/provision for this first time in its response, the agency may oppose the union's request in its reply. The reply must be properly served on all parties.

Changes from the Previous Regulation and Comment

While the Authority has normally allowed an agency to reply to new arguments raised in a union's response, this is the first time the Authority has regulated this process. The Authority makes clear, though, that the agency's reply is only to address those issues raised by the union for the first time in its response. The agency is barred from raising any new arguments.

5 CFR 2424.27 - Additional submissions to the Authority

The Authority may grant a written request by a party for the filing of an additional submission where extraordinary circumstances are shown. The additional submission should be filed with a written request to file the additional submission or within 5 days of the Authority's order granting the request. Any opposition to a request for an additional submission must be filed within 15 days after the date of receipt of the additional request. All documents filed under this section must be properly served on the parties.

Changes from the Previous Regulation and Comment

It is rare for the Authority to allow additional submissions. This section merely establishes the procedures to be followed should a party ever feel the need to submit one.

5 CFR 2424 Subpart D - Processing a Petition for Review

5 CFR 2424.30 - Procedure Through Which the Petition for Review Will be Resolved

  • a. Where the union has filed a related ULP or negotiated grievance alleging a ULP

    Except for cases involving compelling need arguments, where the union files a ULP or a negotiated grievance alleging a violation of the Federal Service Labor-Management Relations Statute and a negotiability appeal on the same issue, the Authority will dismiss the negotiability petition. The dismissal will be without prejudice allowing the union to refile the petition after the ULP or grievance (to include arbitration) has been administratively resolved. The union may refile the negotiability petition within 30 days after the date on which the ULP or grievance is resolved administratively.

  • b. Where the union has not filed a related ULP or negotiated grievance alleging a ULP

    When the union files only a negotiability petition and there is no bargaining obligation dispute, the Authority will resolve the negotiability dispute under part 2424.

    Where a bargaining obligation dispute exists in addition to a negotiability dispute, the Authority will inform the union of its opportunity to file a ULP charge or a negotiated grievance over the activity's refusal to bargain. Should the union pursue any of these options, the Authority will proceed in accord with section "a" above.

If the union does not file a ULP or negotiated grievance, the Authority will resolve all disputes necessary for disposition of the petition unless, at the Authority's discretion, it determines that resolving all the disputes is not appropriate. Reasons why the Authority might not address all issues can be that resolving all issues may delay the negotiability finding or the procedures in another administrative forum are better to resolve the bargaining obligation dispute.

Changes from the Previous Regulation and Comment

Here's another big change. Where the union files a negotiability appeal and a ULP or grievance on the same issue, the Authority will no longer give the union the option of deciding whether it wants to first process its ULP (or negotiated grievance) or its negotiability appeal. Rather, the ULP or grievance must be processed before the Authority considers the negotiability appeal.

Where the union does not file a ULP or negotiated grievance, and a bargaining obligation dispute exists in addition to the negotiability dispute, the Authority will normally resolve both the negotiability dispute and the bargaining obligation dispute in the negotiability forum. Under this later circumstance, the agency's statement of position will have to address, and raise all relevant arguments concerning why the proposal is nonnegotiable and why the activity does not have an obligation to bargain with the union. This will require the installation to provide this office with specific information regarding its obligation to bargain for inclusion in the agency's statement of position. Failure to raise any arguments concerning the obligation to bargain (e.g., the matter is covered by the parties' agreement) will prevent the agency from subsequently raising these arguments in this or other related procedures.

To assist activities in focusing on whether a negotiability matter also includes a bargaining obligation dispute, this office will subsequently publish a list of factors which relate to the obligation to bargain. Activities should consult this list as part of their process for declaring a union proposal nonnegotiable.

The benefit of having the Authority address both the negotiability of a proposal as well as any bargaining obligation disputes is that the Authority will not provide the same remedies that are available in a ULP proceeding. That is, the Authority will not find that the agency committed a ULP nor will it award back pay, issue a status quo remedy nor require a posting if it finds a proposal negotiable and management has improperly refused to bargain. If a union is seeking some type of remedy besides the Authority directing the parties to negotiate, the union will have to file a ULP as well as a negotiability petition. The matter will then be processed under the ULP forum. The down side of the Authority reviewing bargaining obligation disputes in a negotiability forum is that the parties will not generally be allowed to offer testimony in support of its position.

Where the union has filed a ULP as well as a negotiability petition, we believe the ALJ will first address whether there is an obligation to bargain. If there is an obligation to bargain, he or she will then see if Authority case law can be applied. That is, has the Authority previously addressed the negotiability of the same or similar proposals? If the Authority has not addressed a similar proposal, the ALJ will likely refer the parties to the negotiability process. (The Authority has indi-cated that this change is not intended to infer new authorities upon ALJs, though the application of this section is still being discussed within the Authority.)

Where a proposal is declared nonnegotiable because it conflicts with an agency regulation for which there is a compelling need, even if the proposal also involves an obligation to bargain dispute, the Authority will not refer the matter to the ALJ. Compelling need determinations can only be rendered in a negotiability forum. The Authority, though, may bifurcate the proposal(s) and address the compelling need of the regulation in the negotiability forum while referring all other aspects of the case to the ULP forum.

Under any of the above situations, the activity needs to determine early on in the process whether there are any bargaining obligation disputes. This is a new requirement being imposed under the revised regulations. Prior to this change, an activity could question its bargaining obligation after the Authority had ruled on the negotiability of the proposal.

5 CFR 2424.31 - Resolution of Disputed Issues of Material Fact; Hearings

When necessary to resolve disputed issues of fact, the Authority, or its representative, may:

  • Direct the parties to provide specific documentary evidence;
  • Direct the parties to provide answers to specific factual questions;
  • Refer the matter to a hearing; or
  • Take any other appropriate action.

Changes from the Previous Regulation and Comment

This section merely identifies the avenues available to the Authority for fact finding in negotiability disputes.

5 CFR 2424.32 - Parties' Responsibilities; Failure to Raise, Support, and/or Respond to Arguments; Failure to Participate in Conferences and/or Respond to Authority Orders

In this section, the Authority identifies where responsibilities lie for negotiability appeals.

  • Unions have the burden for raising and supporting arguments that a proposal is negotiable.
  • Management has the burden of raising and supporting arguments that a proposal is outside the duty to bargain or contrary to law, rule or government-wide regulation.

Failure to raise or support arguments will, where appropriate, be deemed a waiver of such arguments. Absent good cause:

  • Arguments that could have been but were not raised by the union in its petition for review or response may not be made in the negotiability or any other proceeding.
  • Arguments that could have been but were not raised by the agency in its statement of position or reply may not be raised in this or any other proceeding.

Failure to respond to arguments or assertions raised by the other party will, where appropriate, be deemed a concession to such arguments or assertions.

In addition to not considering certain belatedly raised arguments, the Authority is authorized to take any action it deems appropriate when a party fails to participate in an Authority directed conference or respond to an Authority order.

Such actions include, for example, dismissing the petition for review with or without prejudice or granting the petition for review and directing bargaining with or without restrictions.

Changes from the Previous Regulation and Comment

This section emphasizes the need for the parties to submit any and all arguments associated with the negotiability of a proposal/provision to the Authority in their written submissions. This includes arguments as to why a proposal/provision is nonnegotiable and why, if applicable, there is no bargaining obligation with the proposal. Failure to raise arguments in the written stage will likely preclude the party from advancing them in another forum involving the Authority. This means that in any subsequent proceeding which might occur, the parties will not be permitted to challenge the obligation to bargain over the proposal if that proposal was the subject of the negotiability appeal and those arguments were not timely raised. Further, a party will be barred from litigating any issues that could have been raised by the party in the negotiability proceeding in any future proceeding. As for judicial review based on arguments not raised to the Authority, section 7123(c) bars the parties from raising issues before the court that were not presented to the Authority.

As stated above, close coordination between HQDA (and/or FAS) and the installation is necessary for the thorough presentation of management's position in a negotiability dispute. Of course, that's just the minimum number of management participants. I also foresee close involvement with the MACOM, various management officials at the installation level, possibly the CPOC and CPOCMA as well as other interested officials. This close coordination needs to begin when the activity first considers declaring a proposal nonnegotiable and runs until the Authority, an ALJ or an arbitrator renders a final determination.

5 CFR 2424 Subpart E - Decision and Order

5 CFR 2424.40 - Authority Decision and Order

The Authority states that it will issue decisions at the earliest practical date. The order issued by the Authority will not include remedies that could be obtained in a ULP proceeding.

Where the case involves a proposal declared nonnegotiable at the activity level:

  • If the Authority finds there is a duty to bargain on the proposal or a portion of a severed proposal, the Authority will order the agency to bargain on request concerning the proposal.
  • If the Authority finds the duty to bargain does not extend to the proposal, the Authority will dismiss the petition.
  • If the proposal is found to be negotiable at the election of the agency, the Authority will so state.
  • If a proposal is found within the duty to bargain, but there is a question concerning the obligation to bargain, the Authority will order the agency to bargain on request in the event the bargaining obligation claims are subsequently resolved in a manner requiring bargaining.

Where the case involves a provision or severed part of a provision declared nonnegotiable during the agency head review, and the Authority finds the provision negotiable (to include a 7106(b)(1) permissive matter), it will direct the agency head to rescind its disapproval. If the Authority finds the provision contrary to law, rule or regulation, it will dismiss the petition for review.

Changes from the Previous Regulation and Comment

The section simply explains the types of decisions the Authority will issue in negotiability disputes. There is nothing surprising here.

5 CFR 2424.41 - Compliance

The union can report to a Regional Director any failure by the agency to bargain over a proposal found negotiable by the Authority or the agency head's refusal to rescind its disapproval of a provision if directed to do so by the Authority. The Authority will take whatever steps it deems appropriate to secure compliance with its order.

Changes from the Previous Regulation and Comment

To obtain enforcement of an Authority's negotiability finding, the union must report to a regional director an agency's failure to implement an Authority order within a reasonable time after the end of the 60-day period to seek judicial review. (5 USC 7123(a))

5 CFR 2424 Subpart F - Criteria for Determining Compelling Need for Agency Rules and Regulations

5 CFR 2424.50 - Illustrative Criteria

A compelling need exists for an agency (DoD) or primary national subdivision (Army) regulation when the agency demonstrates that:

  • The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner that is consistent with the requirements of an effective and efficient government;
  • The rule or regulation is necessary to ensure the maintenance of basic merit principles; or
  • The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature.

Changes from the Previous Regulation and Comment

Nothing new here-these are the same criteria as under the previous regulation. Given our track record, we don't expect to be successful in many (if any) compelling need arguments. Should a union proposal conflict with a DoD or Army regulation, you need to contact this office to either obtain a waiver from the regulation or to receive approval to declare the union's proposal nonnegotiable.

What's It All Mean?

While much has changed, much has remained the same. The bottom line is that management needs to be fully prepared when it declares a union proposal nonnegotiable. That is, the activity should coordinate with its MACOM or HQDA and discuss not only whether the proposal is nonnegotiable, but whether there is a bargaining obligation as well. Under the revised Authority regulations, coordination between all appropriate management parties will be key to success before the Authority.

Please keep in mind that some comments provided in this bulletin are based on our interpretation of the regulation and our best estimate of how the Authority will apply them. We'll have to wait and see how close our interpretation comes to the Authority's. As soon as we become aware of any interpretations by the Authority that differ from ours, we'll let you know.

The following page identifies how a typical negotiability appeal may be processed. Again, the key to our success will be close coordination among all management participants.

 

Processing a Negotiability Appeal of a Union Proposal

- Management verbally notifies the union that it believes a proposal is nonnegotiable. (Prior to doing so, the installation has coordinated with its MACOM, HQDA or FAS.) The parties attempt to develop alternate negotiable language.

- If the parties cannot develop alternate language, the union requests, in writing, a declaration of nonnegotiability.

- Management responds within 10 days of receipt of the union's request, in writing, that the proposal is nonnegotiable. HQDA, the activity, and other involved parties discuss the proposal to determine if there is a bargaining obligation dispute.

- The union has 15 days after receipt of the activity's written allegation to file a negotiability petition with the Authority.

- After receipt of the petition, the Authority will normally contact the parties to establish and conduct a post-petition conference. (The conference should usually occur within 10 days.)

- During this time, continued coordination between the activity and HQDA (and/or FAS) may be necessary.

- Management will raise, normally in the conference, all bargaining obligation and negotiability issues.

- If the negotiability dispute does not also concern a dispute over the activity's bargaining obligation, the Authority will determine the negotiability of the proposal under the provisions of 5 CFR 2424. If the negotiability dispute also concerns a bargaining obligation dispute, the Authority will dismiss the negotiability appeal without prejudice if a ULP or grievance has been filed or, if no ULP was filed, advise the union of the opportunity to file a ULP or grievance. If the union elects not to also file a ULP or negotiated grievance, the Authority will process the negotiability appeal.

- If the negotiability dispute includes a bargaining obligation matter and the Authority processes the case as a negotiability appeal, the activity will prepare input for the agency's statement of position regarding the bargaining obligation. The agency will prepare the negotiability arguments and submit the statement of position. If the matter is processed as a ULP, the agency will provide input to the activity concerning the negotiability of the proposal.

- The union may then submit a response to the agency's statement of position.

- If new issues are raised in the union's response, the agency will prepare a reply to the union's response. All filings of the agency will be coordinated with the activity.

- Then we wait for a decision. Throughout the entire process, though, the local parties are encouraged to consider, discuss and hopefully agree to alternate negotiable language that addresses the concerns of both parties and alleviates the need for the time-consuming negotiability dispute

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