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Watch free online FLRA trainings on our Youtube channel and don’t forget to subscribe to receive updates on new videos. You are here Home 51:0409(37)PS - - General Counsel of the FLRA - - 1995 FLRAdec PS - - v51 p409
 51:0409(37)PS - - General Counsel of the FLRA - - 1995 FLRAdec PS - - v51 p409
          
                              
          
          
        
        [ v51 p409 ] 51:0409(37)PS
		   The decision of the Authority follows: 
	 **51 FLRA No. 37** 
	 **FEDERAL LABOR RELATIONS AUTHORITY** 
	 **WASHINGTON, D.C.** 
	 **_____** 
	 **GENERAL COUNSEL** 
	 **(Petitioner)** 
	 **0-PS-33** 
	 **_____** 
	 **ORDER DENYING REQUEST FOR A GENERAL
		RULING** 
	 **October 31, 1995** 
	 **_____** 
	 **Before the Authority: Phyllis N. Segal, Chair; and Tony
		Armendariz, Member.** 
	 I. Statement of the Case 
	 In accordance with section 2429.4 of the Authority's Regulations,(1) the General Counsel has requested
		the Authority to issue a ruling on the following issue: 
	 Are matters and proposals which are within the bargaining subjects
		  set forth in section 7106(b)(1) of the Statute negotiable at the election of
		  agency management at the level of exclusive recognition even though those
		  matters and proposals also may be within the subjects set forth in section
		  7106(a) of the Statute? 
	 G.C. Request at 1. 
	 For the reasons discussed below, we conclude that the issue involved in
		the General Counsel's request is not appropriate for resolution through the
		issuance of a general ruling. Accordingly, we deny the request for a general
		ruling. The issue involved in the General Counsel's request is addressed by the
		Authority in its decision in National Association of Government Employees,
		Local R5-184 and U.S. Department of Veterans Affairs, Medical Center,
		Lexington, Kentucky, 51 FLRA No. 36 (1995) (VA Medical Center),
		issued today. 
	 II. Background 
	 The General Counsel explains that his request was prompted by Executive
		Order 12871, which provides, in section 2(d), that agency heads shall
		"negotiate over subjects set forth in 5 U.S.C. 7106(b)(1), and instruct
		subordinate officials to do the same," and by the court's decision in
		Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA,
		22 F.3d 1150 (D.C. Cir. 1994) (Montana ACT). In Montana ACT, the
		United States Court of Appeals for the District of Columbia Circuit reversed
		and remanded the Authority's dismissal of an unfair labor practice complaint.
		The unfair labor practice complaint alleged that the Activity violated the
		Statute by disapproving a contract provision and by directing the Activity to
		repudiate that provision. The disapproved provision gave employees the option
		to wear either a military uniform or agreed-upon standard civilian attire.
		National Guard Bureau, Alexandria, Virginia, 45 FLRA 506 (1992)
		(National Guard Bureau). In National Guard Bureau, the Authority
		determined that the agency head properly could disapprove the contract
		provision because it directly interfered with management's right to determine
		its internal security practices under section 7106(a)(1) of the Statute.
		Although the Authority acknowledged that the disputed provision also concerned
		the methods and means of performing the Activity's work under section
		7106(b)(1) of the Statute, the Authority rejected the Union's claim that
		section 7106(b)(1) is an exception to section 7106(a). 
	 In reversing and remanding the Authority's decision, the District of
		Columbia Circuit held that where a matter falls within subsection (b)(1) of
		section 7106, even if the matter also affects a right under subsection (a), the
		matter is subject to negotiation at the election of the agency. Montana
		ACT, 22 F.3d at 1155.(2) 
	 The General Counsel's request for a general ruling stated that the
		mandate in the Executive Order to negotiate over subsection (b)(1) matters, and
		the court's holding in Montana ACT, has rendered the relationship
		between subsections (a) and (b)(1) a major policy issue. According to the
		General Counsel, the issue has arisen in the context of numerous cases. 
	 III. The Federal Register Notice 
	 On March 16, 1995, in response to the General Counsel's request, the
		Authority issued a Federal Register notice soliciting comments from interested
		persons on the following questions to assist the Authority in determining
		whether to issue a ruling on the issue referred by the General Counsel: 
	 1. Are the matters and proposals which are within the bargaining
		  subjects set forth in section 7106(b)(1) of the Statute negotiable at the
		  election of agency management at the level of exclusive recognition even though
		  those matters and proposals also may be within the subjects set forth in
		  section 7106(a) of the Statute? 
		2. What is the proper meaning to be accorded the phrase in section
		  7106(a) stating that it is "[s]ubject to subsection (b)," as it relates to
		  subsection (b)(1)? 
		3. What is the proper meaning to be accorded the phrase in 7106(b)
		  stating that "[n]othing in this section shall preclude any agency and any labor
		  organization from negotiating--"? For example, does it operate with respect to
		  section 7106(b)(1) as a "clarification" or a "limitation," a distinction raised
		  by the court in American Federation of Government Employees, Local 2782 v.
		  FLRA, 702 F.2d 1183, 1186-87 (D.C. Cir. 1983) (dicta)? 
		4. What matters or proposals, if any, within the subjects set forth
		  in section 7106(b)(1) are also not within (i.e., do not also affect) one or
		  more subjects set forth in section 7106(a)? 
		5. Does the relationship between section 7106(a) and (b)(1) depend on
		  the particular section 7106(a) subject which is affected? 
		6. Does the relationship between section 7106(a) and (b)(1) depend on
		  whether parties are bargaining over proposals for an agreement or whether an
		  agency head is exercising authority under section 7114(c) of the Statute to
		  review an agreement already reached? 
	 60 Fed. Reg. 14,285 (1995). 
	 The Authority received comments from 10 unions, 8 agencies, 3
		individuals and the General Counsel. The comments have been carefully
		considered, but are not summarized here. We note that, in general, 9 comments
		opposed the issuance of a general ruling, 10 comments favored such a ruling,
		and 3 comments either did not express, or were unclear about, their preference
		on this question. 
	 IV. Discussion 
	 The Authority has carefully considered the General Counsel's request
		and the comments received in response to the Federal Register announcement, and
		has decided to address the question raised in that request in a pending
		negotiability case. As the Authority previously recognized, issues of law and
		policy generally may be developed more fully in the context of the facts and
		circumstances presented by parties within the context of a dispute between
		them. See Order Denying Request for General Ruling, 14 FLRA 757,
		758 (1984); Order Denying Request for General Ruling, 9 FLRA 823, 824
		(1982). The Authority's decision in VA Medical Center, issued today,
		addresses the question raised by the General Counsel. Therefore, we will deny
		the General Counsel's request for a general ruling. 
	 V. Order 
	 The General Counsel's request is denied. 
	 FOOTNOTES:(If blank, the decision does not
		have footnotes.) 
	 1. That section, entitled "Referral of
		policy questions to the Authority," provides, in pertinent part: 
	 Notwithstanding the procedures set forth in this subchapter, the
		  General Counsel . . . may refer for review and decision or general ruling by
		  the Authority any case involving a major policy issue . . . . Before
		  decision or general ruling, the Authority shall obtain the views of the parties
		  and other interested persons, orally or in writing, as it deems necessary and
		  appropriate.
	 2. Following the remand, the parties
		resolved the outstanding issues and the case was withdrawn.
 Federal Labor Relations Authority
1400 K Street, NW
Washington, DC 20424
771-444-5801 
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