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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 11:0626(107)PS DIGEST HEADINGS STATUTE SUBJECT MATTER INDEX ENTRIES DIGEST NOTES INTERPRETATION AND GUIDANCE Introduction Conclusion Discussion -- 1983 FLRAdec PS
 11:0626(107)PS DIGEST HEADINGS STATUTE SUBJECT MATTER INDEX ENTRIES DIGEST NOTES INTERPRETATION AND GUIDANCE Introduction Conclusion Discussion -- 1983 FLRAdec PS
          
                              
          
          
        
        [ v11 p626 ] 11:0626(107)PS
		   The decision of the Authority follows: 
	 11 FLRA NO. 107 
	 Case No. 0-PS-23 
	 INTERPRETATION AND GUIDANCE 
	 Introduction 
	 After careful consideration of a request for a general statement of
		policy submitted by the National Treasury Employees Union (NTEU), pursuant to
		section 2427.2 of the Authority's Rules and Regulations, the Authority has
		determined that an interpretation of the Federal Service Labor - Management
		Relations Statute (the Statute) is warranted on the question of whether the
		Federal Service Impasses Panel (the Panel) has the authority to resolve
		questions concerning the obligation to bargain which arise after the Panel has
		asserted jurisdiction over an impasse in negotiations pursuant to section 7119
		of the Statute. 
	 Conclusion1
	 
	 Section 7119 of the Statute does not authorize the Panel to resolve
		issues as to whether there is an obligation to bargain. Rather, the Statute
		requires that the Authority resolve such issues. 
	 Discussion 
	 NTEU asserts that the language of section 7119(c)(5)(A) and (B) of the
		Statute reflects the clear intent of Congress to vest the Panel with "virtually
		limitless power" in settling bargaining disputes, once the Panel has asserted
		jurisdiction pursuant to section 2471.6(a)(2) of [ v11 p626] its Rules and
		Regulations.
		2
		More particularly, NTEU claims such intent is manifest in the language of
		section 7119(c)(5)(A)(ii) of the Statue
		3
		which states that the Panel shall assist the parties in resolving their impasse
		"through whatever methods and procedures ... it may consider appropriate...."
		and in the language of section 7119(c)(5)(B)(iii) of the Statute
		4
		which states that if the parties fail to settle the impasse, the Panel may
		"take whatever action is necessary and not inconsistent with (the Statute) to
		resolve the impasse." [ v11 p627 ] 
	 In the absence of evidence that Congress intended the panel to resolve
		questions concerning the obligation to bargain, and in light of the unambiguous
		language of the Statue requiring the Authority to resolve such questions, the
		Authority finds the position of NTEU to be unpersuasive. 
	 Specific provisions of the Statute provide for the resolution by the
		Authority of disputes relating to the parties' obligation to bargain. Thus,
		section 7105(a)(2)(E) of the Statute makes it clear that the Authority is
		required to resolve issues relating to the duty to bargain in good faith under
		section 7117(c) which specifically contemplates an appeal "to the Authority."
		In order to implement this statutory imperative, Part 2424 of the Authority's
		Rules and Regulations sets forth the procedures for union appeals to the
		Authority from agency allegations that the duty to bargain in good faith does
		not extend to matters proposed to be bargained. Therefore, it is clear that,
		based on the plain language of the Statute as implemented in the Authority's
		Rules and Regulations, negotiability issues which arise during the collective
		bargaining process
		5
		must be resolved through appeal to the Authority. 
	 As to dispute which involve a party's refusal to bargain because it
		claims to have no obligation to bargain under the particular circumstances in
		which bargaining has been requested, section 7116(a)(5) of the Statute provides
		that it is an unfair labor practice for an agency "to refuse to consult or
		negotiate in good faith with a labor organization as required by this
		(Statute)(.)" Section 7105(a)(2)(G) of the Statute requires the Authority to
		"conduct hearings and resolve complaints of unfair labor practices...(.)"
		Further, section 7118 of the Statute requires the General Counsel of the
		Authority to investigate unfair labor practice charges and prescribes
		procedures. [ v11 p628 ] 
	 Before the Authority for the resolution of such issues. Finally, section
		7105(e)(2) of the Statute permits the Authority only to delegate to an
		administrative law judge "its authority under section 7118...." These statutory
		provisions have been implemented in Part 2423 of the Authority's Rules and
		Regulations. Therefore, this type of dispute concerning the obligation to
		bargain must also be resolved by the Authority. 
	 Consequently, since the plain language of the Statute specifically
		contemplates that the Authority (not the Panel) will resolve questions relating
		to the parties' obligation to bargain, and in the absence of any indication in
		the relevant legislative history that Congress intended the Panel to resolve
		such questions, the position of NTEU can not be sustained. On the contrary, the
		Authority finds that the Panel's authority under section 7119(c)(5)(A)(ii) to
		assist the parties in resolving an impasse through whatever methods or
		procedures the Panel considers appropriate does not include resolving questions
		concerning the underlying obligation to bargain. Nonetheless, the Statute
		itself recognizes the importance of expediting to the extent practicable the
		resolution of questions concerning the duty to bargain by the Authority. 5
		U.S.C. 7117(c)(6). Where questions concerning the duty to bargain arise during
		an impasse in bargaining, the raising of such questions, as noted by NTEU, NFFE
		and the Panel, can further delay in whole or in part the final execution of a
		collective bargaining agreement. In this area, the Panel is to be commended for
		avoiding obligation to bargain problems in a number of cases and still
		resolving the impasses.
		6
	 
	  
	 Issued, Washington, D.C., March 17, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY 
	  
	 [ v11 p629 ] 
	 FOOTNOTES 
	 Footnote 1The Panel, the National Federation of
		Federal Employees (NFFE) and the Department of the Interior made submissions to
		the Authority in response to NTEU's request for a general statement of policy.
		Pursuant to section 2429.26 of the Authority's Rules, these submissions have
		been considered herein. 
	 Footnote 2This section provides, in relevant
		part, as follows: 2471.6 Investigation of request; Panel recommendation and
		assistance; approval of binding arbitration. (a) Upon receipt of a request for
		consideration of an impasse, the Panel or its designee will promptly conduct an
		investigation, consulting when necessary with the parties and with any
		mediation service utilized. After due consideration, the Panel shall either:
		(1) Decline to assert jurisdiction in the event that it finds that no impasse
		exists or that there is other good cause for not asserting jurisdiction, in
		whole or in part, and so advise the parties in writing, stating its reasons; or
		(2) Recommended to the parties procedures, including but not limited to
		arbitration, for the resolution of the impasse and/or assist them in resolving
		the impasse through whatever methods and procedures the Panel considers
		appropriate. 
	 Footnote 3Section 7119(c)(5)(A)(ii) provides:
		7119. Negotiation impasses; Federal Service Impasses Panel (5)(A) The Panel or
		its designee shall promptly investigate any impasse presented to it under
		subsection (b) of this section. The Panel shall consider the impasse and shall
		either-- (ii) assist the parties in resolving the impasse through whatever
		methods and procedures, including factfinding and recommendations, it may
		consider appropriate to accomplish the purpose of this section. 
	 Footnote 4Section 7119(c)(5)(B)(iii) provides:
		(5)(B) If the parties do not arrive at a settlement after assistance by the
		panel under subparagraph (A) of this paragraph, the Panel may-- (iii) take
		whatever action is necessary and not inconsistent with this chapter to resolve
		the impasse. 
	 Footnote 5It is well established that the
		impasse resolution procedures of the Panel operate as one aspect of the
		collective bargaining process. International Brotherhood of Electrical Workers,
		AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving and
		Printing, Washington, D.C., 10 FLRA No. 39 at page 2. 
	 Footnote 6See, e.g., Department of the
		Treasury, Internal Revenue Service, Office of the Regional Director of Appeals,
		North Atlantic Region, New York, New York and Local 15, American Federation of
		Government Employees, AFL-CIO, Case No. 82 FSIP 48 (June 15, 1982), Panel
		Release No. 205; and Department of the Army, 101st Airborne Division (Air
		Assault) and Fort Campbell, Fort Campbell, Kentucky and Local 2022, American
		Federation of Government Employees, AFL-CIO, Case No. 81 FSIP 75 (August 4,
		1981), Panel Release No. 193.
 Federal Labor Relations Authority
1400 K Street, NW
Washington, DC 20424
771-444-5801 
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