Slide 1

NEGOTIABILITY:

FILING & 

PROCEDURAL

ISSUES

Brandon Bradley

Joe Combs

Anne Katz

Tiffany Lee

Karen Racowsky

1
Slide 2

BARGAINING-OBLIGATION 

OR NEGOTIABILITY 

DISPUTE???

Is the Agency saying, "not now" or 

"never"?

2

• This is a key question when evaluating a provision or proposal.
Slide 3

AGENDA

3

4. How do we involve the 

FLRA?

5. e-Filing

6. Bases for Dismissals 

and Common Mistakes

7. Questions

1. Bargaining Obligation or 

Negotiability Dispute?

2. When do we involve the 

FLRA?

3. Collaboration and 

Alternative Dispute 

Resolution Office
Slide 4

SUBJECTS OF BARGAINING

MANDATORY

Must bargain

E.g., 5 U.S.C.

§ 7106(b)(2) & 

(3)

PROHIBITED

Cannot agree to 

(law prohibits)

E.g., 5 U.S.C. 

§ 7106(a) 

(where no 

exception 

applies)

PERMISSIVE

May bargain/agree to

E.g., 5 U.S.C. 

§ 7106(b)(1)

4
Slide 5

BARGAINING-OBLIGATION 

DISPUTE = NOT NOW

Agency claims it is not required to 

bargain under current circumstances

5

• 5 C.F.R. 2424.2(a).
Slide 6

BARGAINING-OBLIGATION 

DISPUTES

EXAMPLES:

(1) “covered by”

(2) “de minimis”

(3) Trying to bargain at the wrong level

(4) Proposal outside the scope of the change

(5) If there has not been a change to a condition of employment

See also FLRA's Guide to Negotiability

6

• Negotiability Guide: https://www.flra.gov/resources-training/resources/guides-manuals

• In the regulations effective October 12, 2023, examples were placed in the definition section 

found at 5 C.F.R. § 2424.2.
Slide 7

BARGAINING-OBLIGATION 

DISPUTES

• Not required to bargain under current circumstances.

• E.g., “covered by,” “de minimis,” "bargaining at the wrong 

level"

• No ULP remedies when deciding a negotiability proceeding 

with both bargaining-obligation and negotiability disputes

• Dismiss petition/portion of petition if only bargaining-obligation 

dispute; any resolution of bargaining-obligation dispute must 

occur in other proceedings (such as a grievance or ULP)

7

• 5 C.F.R. § 2424.2(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 to bargain over a proposal that 

otherwise may be negotiable.

• Will dismiss petition/portions of petitions if it is only a bargaining obligation dispute as these 

resolution must occur in other proceedings (such as a grievance or ULP).

• 5 C.F.R. § 2424.40(a) (“[W]ith the exception of an order to bargain,” an Authority decision 

and order in a negotiability proceeding “will not include remedies that could be obtained in 

an unfair-labor-practice proceeding under 5 U.S.C. § 7118(a)(7).”)
Slide 8

“COVERED BY”

No statutory duty to bargain over matters that have already 

been resolved by bargaining

Two-prong test:

(1)Is subject matter expressly contained in the agreement?

(2)If not, is the subject matter inseparably bound up with, and 

thus plainly an aspect of, a subject expressly covered by the 

agreement? 8

• No statutory duty where already resolved: e.g., 68 FLRA 1027, 1032; 68 FLRA 580, 582

• Two-prong test: e.g., 66 FLRA 213, 216
Slide 9

“COVERED BY”:

EXPRESSLY CONTAINED IN THE 

AGREEMENT

“Expressly Contained in the Agreement”

• Exact congruence of language not needed

• Would a reasonable reader conclude the contract 

provision settles the matter in dispute?

• Does the proposal modify or conflict with the 

express terms of the contract provision?

9

• E.g., 66 FLRA 213, 216; 66 FLRA 124, 126; 60 FLRA 572, 573-74
Slide 10

“COVERED BY”:

INSEPARABLY BOUND UP WITH

“Inseparably Bound Up With”

• Matter in proposal must be more than tangentially 

related to a contract provision

• Is the matter so commonly considered to be an 

aspect of a matter in the parties’ agreement that 

negotiations can be presumed to have foreclosed 

further bargaining?

10

• E.g., 66 FLRA 213, 216
Slide 11

DE MINIMIS

• Agency has no duty to bargain over changes that 

have only "de minimis" effects on unit employees' 

conditions of employment

• Authority looks to nature and extent of the effects, or 

reasonably foreseeable effects, of the change

• Number of employees not dispositive

11

• No duty where de minimis: e.g., 64 FLRA 85, 89

• Look to effects, or reasonable foreseeable effects: Id.

• Number not dispositive: e.g., 64 FLRA 166, 173

• Decisions addressing de minimis: 25 F.4th 1; 164 FLRA 166, 173-74; 64 FLRA 85, 89-90; 60 

FLRA 315, 318; 60 FLRA 169, 175-76; 59 FLRA 728, 728-29; 59 FLRA 646, 654-55; 21 FLRA 580, 

585-86
Slide 12

“COVERED BY”

DOCTRINE INAPPLICABLE

• At term negotiations

• When no agreement is in effect

• Where the agreement specifically 

contemplates bargaining 12

• Term negotiations: e.g., 68 FLRA 334, 338

• No term agreement: e.g., 57 FLRA 185, 193

• Agreement contemplates: e.g., 68 FLRA 580, 582-83
Slide 13

NEGOTIABILITY DISPUTES = 

NEVER

Agency asserts it never has an obligation to bargain 

over this matter/subject

13

• 5 C.F.R. § 2424.2(c)
Slide 14

NEGOTIABILITY DISPUTES

OF BARGAINING

PROPOSALS & PROVISIONS

Proposals: Prohibited and permissive are outside the 

duty to bargain

Provisions: Only prohibited may be disapproved by 

Agency head

14

• Proposal is any matter offered for bargaining that an agency and a union have not yet agreed 

to. 5 C.F.R. § 2424.2(e)

• 5 C.F.R. § 2424.2(c) - Agency declares proposal is outside the duty to bargain because it is a 

prohibited subject or a permissive subject about which it declines to bargain.

• Provision is contract language that an agency and a union have agreed to include in their 

collective-bargaining agreement. 70 FLRA 303; 72 FLRA 203, 206; 5 C.F.R. § 2424.2(f)
Slide 15

NEGOTIABILITY DISPUTES

OF BARGAINING

EXAMPLES OF BASES FOR NEGOTIABILITY CLAIMS

• Statutes (including Federal Service LaborManagement Relations Statute)

• Executive Orders

• Government-Wide Rules and Regulations

• Agency Regulations with “compelling need”

15

• Statutes – 64 FLRA 813, 816-18; 66 FLRA 809, 814

• Executive Orders – 49 FLRA 874, 888-90

• Government-wide rules and regulations – 65 FLRA 911, 916-17

• “Compelling need” – 5 U.S.C. § 7117(a)(2)
Slide 16

PRIOR AGREEMENTS & EXISTING 

POLICIES BARGAINING

Prior agreement does not mean it is within the 

duty to bargain now

Nor does the fact that proposal reflects an 

existing Agency policy or practice (e.g., Agency 

regulation)

16

• 61 FLRA 554, 557 (holding that mere fact that parties agreed to provisions in a previous

agreement does not demonstrate that provisions are negotiable)

• 29 FLRA 849, 861 (holding that mere fact that proposal mirrors requirements of Agency 

regulation does not render proposal negotiable)
Slide 17

5 C.F.R. § 2424.2(a) and (c)

• Look at each proposal or provision to determine if the 

statute requires bargaining, not the CBA

• Ask if the Agency is saying "not now" (bargaining 

obligation) or "never" (negotiability dispute)

17

REMINDERS
Slide 18

BARGAINING AT THE

WRONG LEVEL

• Required to bargain only at the "level of recognition"

• Bargaining below = permissive subject

Note: If level of recognition is lower level of Agency, 

then Agency cannot avoid bargaining just because 

subjects also may be subject to bargaining at a higher 

organizational level

18

• 62 FLRA 174, 182 (citing 53 FLRA 1269, 1273-74; 12 FLRA 52, 53)

• Id. (citing 53 FLRA at 1274)

• 66 FLRA 978, 980-81 (citing 53 FLRA 1274)
Slide 19

POP QUIZ

Use the emojis to indicate whether it is:

👍 - Bargaining Obligation

😯 - Negotiability Dispute

19
Slide 20

QUESTION 1BARGAINING

The Agency asserts it has no duty to bargain 

because the proposal requires work to be assigned to 

employees based on geographical considerations.

👍 - Bargaining Obligation

😯 - Negotiability

20

• 73 FLRA 233
Slide 21

QUESTION 2BARGAINING

The Agency asserts it has no duty to bargain because the 

proposal is covered by the parties' memorandum of 

understanding.

👍 - Bargaining Obligation

😯 - Negotiability

21

• 73 FLRA 87
Slide 22

QUESTION 3BARGAINING

The Agency asserts it has no duty to bargain because the 

proposal concerns a permissive subject of bargaining.

👍 - Bargaining Obligation

😯 - Negotiability

22

• 72 FLRA 421
Slide 23

QUESTION 4BARGAINING

The Agency asserts it has no duty to bargain because the 

proposal concerns noncompetitive temporary promotions 

and details that exceed 120 days.

👍 - Bargaining Obligation

😯 - Negotiability

23

• 72 FLRA 749
Slide 24

8/16/2017 24

?

WHEN DO WE INVOLVE THE 

FLRA?
Slide 25

UNION FILES PETITION FOR REVIEW

25

Initiates process 

before Authority

Only Union may 

file

Process depends 

on whether 

Proposal or 

Provision

• 5 C.F.R. § 2424.22: Exclusive representative's petition for review; purpose; content; 

severance; service

• 5 C.F.R. § 2424.20: Who may file a petition for review

• 5 U.S.C. § 7117(c): Duty to bargain in good faith; compelling need; duty to consult
Slide 26

“ALLEGATION OF 

NONNEGOTIABILITY”

• For proposals

• Agency 

says: Outside the 

duty to bargain

• No particular 

degree of 

specificity 

required

26

• No particular degree of specificity required: 61 FLRA 97, 98 (2005)
Slide 27

27

• Proposal: language offered at the bargaining 

table that parties have not agreed to — Agency 

has declared outside the duty to bargain

• Provision: contract language that Union and 

Agency negotiators have agreed to as part of their 

CBA or FSIP has imposed; disapproved on Agencyhead review

PROPOSALS & PROVISIONS

• 5 C.F.R. § 2424.2: Definitions

• 5 C.F.R. § 2424.2(c): Negotiability Dispute

• 5 C.F.R. § 2424.2(e): Proposal

• 5 C.F.R. § 2424.2(f): Provision

• 5 U.S.C. § 7114: Representation rights and duties

• 5 U.S.C. § 7114(c): Agency-head review
Slide 28

AGENCY HEAD 

DISAPPROVAL

• For provisions

• Agency head 

says: Contrary to 

law, rule, or 

regulation

• Cannot 

disapprove 

permissive

28

• 5 U.S.C. § 7114(c)(2)

• Cannot disapprove permissive subjects: 61 FLRA 336, 339 (2005)
Slide 29

PROPOSALS VS. PROVISIONS

29

Proposal Provision

At the bargaining table

Agency rep declares proposal 

nonnegotiable

Can declare nonnegotiable at any time

Agency chooses whether to bargain 

over permissive subjects

Executed agreement or FSIP-imposed wording

Agency head disapproves

Cannot disapprove permissive subject

Must disapprove within 30 days
Slide 30

PROPOSALS: SOLICITED 

ALLEGATIONS OF NONNEGOTIABILITY

30

Union requests 

allegation of 

nonnegotiabilityin 

writing

Agency responds with 

written allegation

Union must file within 

15 days of service

Agency does not 

respond

Union can file any time 

after 10 days

• 5 C.F.R. § 2424.21: Time limits for filing a petition for review
Slide 31

UNION ASKS, AGENCY GIVES 

ALLEGATION OF NONNEGOTIABILITY

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

1 2 3 4 5 6 7

8 9 10 11 12 13 14

15 16 17 18 19 20 21

22 23 24 25 26 27 28

29 30 31

Union 

request Agency says

nonnegotiable

Filing clock

starts

Petition DUE!

• 5 U.S.C. § 7117(c)(2)

• 5 C.F.R. § 2424.21(a)
Slide 32

UNION ASKS, AND . . . 

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

1 2 3 4 5 6 7

8 9 10 11 12 13 14

15 16 17 18 19 20 21

22 23 24 25 26 27 28

29 30 32

Union 

request

Tenth day,

now what?

• 5 C.F.R. § 2424.21(b)
Slide 33

PROPOSALS:

UNSOLICITED ALLEGATIONS

33

Agency provides unsolicited 

allegation of 

nonnegotiability to the 

Union or before FSIP

Union files within 15 days of 

service

Union does not file petition, 

and later requests written 

allegation if it wants to 

pursue an appeal

If Agency gives written 

allegation, Union must file 

within 15 days; if Agency 

doesn’t, Union can file any 

time after 10-day period

• 5 C.F.R. § 2424.11: Requesting and providing written allegations concerning the duty to 

bargain

• 5 C.F.R. § 2424.11(c): Unrequested agency allegation

• 5 C.F.R. § 2424.21(a)-(b)

• A Union has two choices for how it may respond to an unsolicited allegation: 52 FLRA 1429, 

1435 (1997) (holding that union has two options for filing a timely petition for review: (1) 

respond to the unsolicited allegation of nonnegotiability and timely file a petition for review 

with the Authority; or (2) ignore the unsolicited allegation of nonnegotiability, make a written 

request for a written allegation of nonnegotiability from the agency, and then timely file its 

petition for review of the solicited allegation with the Authority)

• For FSIP context: 50 FLRA 121, 121-22 (1995)
Slide 34

COLLABORATION &

ALTERNATIVE DISPUTE 

RESOLUTION OFFICE CADR

34 FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV
Slide 35

Within 15 days of service of Agency-head 

disapproval

35

UNION’S PETITION: PROVISIONS

• 5 C.F.R. § 2424.21(a)(2)
Slide 36

WAYS TO RESOLVE NEGOTIABILITY QS

Litigate negotiability petition

Part of ULP before ALJ or arbitrator

CADR

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 367

Generally not Federal Service Impasses Panel unless 

“substantively identical” to previous proposal or provision.
Slide 37

ADR = Spectrum of procedures other than litigation, 

effective for solving problems rather than just 

settling disputes

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 37
Slide 38

HOW TO REQUEST CADR ASSISTANCE.

1. Check box in petition

2. Contact CIP

3. Contact CADRO

cadro@flra.gov

771.444.5802

4. Request during post-petition 

conference FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 38
Slide 39

SHOULD WE USE CADR ?

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 39
Slide 40

WHY CHOOSE CADR

• Most often: Reach full agreement 

resolving all language disputes.

• Sometimes: At least resolve legal 

questions. Finish the rest through 

collective bargaining.

• Rarely: Proceed for decision by the 

Authority.

• Abeyance, remains in queue

• Pragmatic

• Federal sector expertise

• Help assess risks, opportunities

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 40
Slide 41

WHICH IS BETTER (FOR OUR CASE)?

Litigate ADR

Vindication 

Neutral opinion 

Solve problem 

Control 

Risk 

Communication 

Emotions 

Constituents 

Compliance 

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV

41

Litigate ADR

Precedent 

Q of fact/law 

All/None 

Cost 

Speed 

Voluntary 

Confidential 

Relationship 

Informed choice 
Slide 42

APPROPRIATE ISSUES FOR CADR

ALMOST ANY ISSUE CAN BE APPROPRIATE FOR ADR!

• Return to Office

• RIF procedures

• Representation duties outside of 

the employee's own bargaining unit

• Attorney fees

• Call back overtime

• HSPD-12 SmartIDs

• BUE access to the base galley

• Furloughs for uncommon TOD

• Disciplinary action against 

probationary employees

• New office locations, closing offices FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 42
Slide 43

WHAT TO EXPECT

from CADR .

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 43
Slide 44

1ST STEPS IN CADR PROCESS

 Explore with CADRO staff

 CIP normally sends 

abeyance order

 Schedule initial 

session

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 44

 Initial joint session

•About 1 hour long

•Clarify disputed language & 

legal concerns

•Explore interests

•Collect additional information

•Answer questions

•Schedule next session
Slide 45

NEXT STEPS IN CADR PROCESS

BETWEEN SESSIONS NEXT SESSION(S)

Resolve NG concerns

Normally,

• 1⁄2 or full day

• MS Teams

• Joint sessions and caucuses

• Only ground rule: mutual respect

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 45

 CADRO research, prep

 Calls, email with parties

 Preparation
Slide 46

5 U.S.C. § 574

• (a) a neutral in a dispute resolution 

proceeding shall not voluntarily 

disclose or through discovery or 

compulsory process be required to 

disclose any dispute resolution 

communication or any 

communication provided in 

confidence to the neutral, ...

• (b) A party to a dispute resolution 

proceeding shall not voluntarily 

disclose or through discovery or 

compulsory process be required to 

disclose any dispute resolution 

communication, ...

• ...

• (d) (1) The parties may agree to alternative 

confidential procedures for disclosures by a neutral.

• (2) To qualify for the exemption [from 

FOIA], an alternative confidential procedure 

under this subsection may not provide for 

less disclosure than the confidential procedures otherwise provided under this 

section.

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 46

[Subject to statutory exceptions, ...]
Slide 47

HOW TO PREPARE

for CADR .

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 47
Slide 48

PREPARE FOR SUCCESS

• Scope

• Distinguish:

• Nonnegotiable 

• No bargaining obligation

• Not agreeable

• Participants have:

• Authority to settle 

• Knowledge of issue(s)

• Written agreement to mediate

• Prepare & share info

• Educate constituents

• Step back from positions, prepare 

to describe

• The problem (i.e., the issue)

• Why you care (i.e., your interests)

• Be ready to brainstorm creative 

ideas!

• Avoid the dreaded “oh by the way” 

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 48
Slide 49

PREPARE YOURSELF

• Willing to listen, ask & answer 

questions, explore new ideas and 

options

• Respectful, informal, conversational, 

patient

• Focus: 

• Goals, desires, fears, obstacles 

• Strengths & weaknesses 

• BATNA & WATNA FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 49
Slide 50

QUESTIONS & COMMENTS

FLRA COLLABORATION & ADR OFFICE, CADRO@FLRA.GOV 50

Michael Wolf

Director

mwolf@flra.gov

Merritt Weinstein

Sr. D.R. Specialist

mweinstein@flra.gov
Slide 51

HOW DO WE INVOLVE THE 

FLRA?

37
Slide 52

53

Union Petition for 

Review

Agency Statement 

of Position

Union Response

Agency Reply

• Copy of Agency’s written allegation/evidence 

that Union requested/Agency-head 

disapproval

• Exact wording of proposals/provisions

• Special terms explained

• Meaning & operation

• Any related proceedings

• Additional information is located at 5 C.F.R. § 2424.22. This section explains in detail all of the 

requirements the Union should follow when filing a petition for review, including the purpose 

of a petition for review, how to properly divide matters, the content of the petition, and how 

to serve other parties.
Slide 53

SEQUENCE OF FILINGS

Union Petition for Review

Agency Statement of Position

Union Response

Agency Reply

52

*Post-Petition Conference

FLRA Regulations for each type of filing

• Union Petition for Review –5 C.F.R. § 2424.22

• Agency Statement of Position - 5 C.F.R. § 2424.24

• Union Response - 5 C.F.R. § 2424.25

• Agency Reply - 5 C.F.R. § 2424.26

• Post-Petition Conference - 5 C.F.R. § 2424.23
Slide 54

54

Union Petition for 

Review

Agency Statement 

of Position

Union Response

Agency Reply

• Due within 30 days of Agency head’s 

receipt of Petition

• Must contain all arguments why 

proposals are outside duty to 

bargain/provisions contrary to law

• Any disagreements regarding meaning & 

operation

• Additional information is located at 5 C.F.R. § 2424.24. This section explains in detail all of 

the requirements the Agency should follow when filing a statement of position, including the 

purpose of a statement of position, the time limits for filing, the content of the statement of 

position, and how to serve other parties.
Slide 55

55

Union Petition for 

Review

Agency Statement 

of Position

Union Response

Agency Reply

• Due within 15 days of receiving Agency’s 

Statement of Position

• Must discuss any claims from Statement 

of Position that Union disagrees with

• Severance opportunity

• Additional information is located at 5 C.F.R. § 2424.25. This section explains in detail all of 

the requirements the Union should follow when filing a response to the Agency's statement 

of position, including the purpose of a response, the time limits for filing, the content of the 

response, information on severance, and how to serve other parties.
Slide 56

56

Union Petition for 

Review

Agency Statement 

of Position

Union Response

Agency Reply

• Due within 15 days of receiving Union’s 

Response

• Created by regulation to allow Agency to 

respond to facts or arguments made for 

the first time in Union’s Response

• May not raise new arguments/bases for 

non-negotiability that could have been 

raised in Statement of Position

• Additional information is located at 5 C.F.R. § 2424.26. This section explains in detail all of 

the requirements the Agency should follow when filing a reply, including the purpose of a 

reply, the time limits for filing, the content of the reply, and how to serve other parties.
Slide 57

• Union may accomplish severance in its Response

• Severance results in the creation of separate 

proposals/provisions

• Division of proposal/provision into separate parts with 

independent meaning

• Purpose is to determine whether any separate parts 

are within the duty to bargain or contrary to law

• Agency can respond to severance in its Reply 57

SEVERANCE

• The definition of severance is located at 5 C.F.R. § 2424.2(h). 5 C.F.R. § 2424.25(d) explains 

how the Union can accomplish severance in its response to the Agency's statement of 

position.
Slide 58

OTHER SUBMISSIONS

EXTENSION OF TIME REQUESTS

• Must be received by FLRA no later 

than 5 days prior to due date

• Must be in writing and served on 

other parties

• Must state position of the other 

parties

ADDITIONAL SUBMISSIONS

• May be filed only in 

“extraordinary circumstances”

• Include written request with 

submission

• Must serve other parties

58

Extension of Time Requests

• 5 C.F.R. § 2429.23 provides the requirements for requesting an extension of time with the 

Authority. 

Additional Submissions

• 5 C.F.R. § 2424.27 explains the requirements for correctly filing an additional 

submission. Reviewing FLRA caselaw can be helpful to determine what the Authority 

considers extraordinary circumstances. 
Slide 59

POST-PETITION CONFERENCE 

• Conducted by telephone

• Parties must participate

• Must be knowledgeable about dispute and have authority to discuss 

and resolve matters

• Meaning

• Any disputed factual issues

• Objections to proposals/provisions

• Any related proceedings 59

• Information regarding post-petition conferences (PPC) in 5 C.F.R. § 2424.23. This section 

explains in detail how the Authority schedules PPCs, what is expected of the parties at the 

conference, and information about the Authority's written record of the PPC.
Slide 60

POST-PETITION CONFERENCE 

Authority representative hosting conference will:

• Gather information about the dispute

• Facilitate discussion, seek areas of agreement, discuss 

modifications to wording

• Ensure that the parties have a common understanding of the 

meaning and impact

• Prepare written record – will NOT contain Agency legal objections

60
Slide 61

DUE DATE QUIZ

Agency Statement of Position =

Union Response =

Agency Reply =

Extension of time =

61

30 days after Agency head receives Petition

15 days after Union receives Statement of Position

15 days after Agency receives Response

No later than 5 days prior to due date

Specific cites to the FLRA's Regulations regarding each particular due date

• Agency Statement of Position - 5 C.F.R. § 2424.24(b)

• Union Response - 5 C.F.R. § 2424.25(b)

• Agency Reply - 5 C.F.R. § 2424.26(b)

• Extension of Time - 5 C.F.R. § 2429.23(a)
Slide 62

STEPS TO DETERMINE DUE DATES

1. Determine the triggering event that you are filing in response to

2. Determine the number of days that you have to file

3. Determine the first day of the filing period

4. Starting with the first day, count calendar days—including Saturdays, Sundays, 

federal legal holidays—until you reach the last day of the filing period 

5. Does the last day fall on a Saturday, Sunday, or federal legal holiday? 

 If yes, then find the next day on the calendar that is not a Saturday, Sunday, or 

federal legal holiday

62
Slide 63

STEPS TO DETERMINE DUE DATES

1. Determine the triggering event that you are filing in response to

2. Determine the number of days that you have to file

3. Determine the first day of the filing period

4. Starting with the first day, count calendar days—including Saturdays, Sundays, 

federal legal holidays—until you reach the last day of the filing period 

5. Does the last day fall on a Saturday, Sunday, or federal legal holiday? 

 If yes, then find the next day on the calendar that is not a Saturday, Sunday, or 

federal legal holiday

63
Slide 64

STEPS TO DETERMINE DUE DATES

1. Determine the triggering event that you are filing in response to

2. Determine the number of days that you have to file

3. Determine the first day of the filing period

4. Starting with the first day, count calendar days—including Saturdays, Sundays, 

federal legal holidays—until you reach the last day of the filing period 

5. Does the last day fall on a Saturday, Sunday, or federal legal holiday? 

 If yes, then find the next day on the calendar that is not a Saturday, Sunday, or 

federal legal holiday

64
Slide 65

STEPS TO DETERMINE DUE DATES

1. Determine the triggering event that you are filing in response to

2. Determine the number of days that you have to file

3. Determine the first day of the filing period

4. Starting with the first day, count calendar days—including Saturdays, Sundays, 

federal legal holidays—until you reach the last day of the filing period 

5. Does the last day fall on a Saturday, Sunday, or federal legal holiday? 

 If yes, then find the next day on the calendar that is not a Saturday, Sunday, or 

federal legal holiday

65
Slide 66

STEPS TO DETERMINE DUE DATES

1. Determine the triggering event that you are filing in response to

2. Determine the number of days that you have to file

3. Determine the first day of the filing period

4. Starting with the first day, count calendar days—including Saturdays, Sundays, 

federal legal holidays—until you reach the last day of the filing period 

5. Does the last day fall on a Saturday, Sunday, or federal legal holiday? 

 If yes, then find the next day on the calendar that is not a Saturday, Sunday, or 

federal legal holiday

66
Slide 67

STEPS TO DETERMINE DUE DATES

1. Determine the triggering event that you are filing in response to

2. Determine the number of days that you have to file

3. Determine the first day of the filing period

4. Starting with the first day, count calendar days—including Saturdays, Sundays, 

federal legal holidays—until you reach the last day of the filing period 

5. Does the last day fall on a Saturday, Sunday, or federal legal holiday? 

 If yes, then find the next day on the calendar that is not a Saturday, Sunday, or 

federal legal holiday

67

• 5 C.F.R. § 2429.21 lists all of the steps to follow for computing due dates for filing documents 

with the FLRA. This section of the FLRA's Regulations can be used to calculate due dates for 

any document filed with the FLRA.
Slide 68

HOW TO FILE

• eFiling

• Commercial delivery

• Certified Mail

• First-class mail

• In person (*by appointment only)

68

RK0

• 5 C.F.R. § 2429.24 explains in detail how documents can be filed with the FLRA. This section 

includes an explanation of alternative filing methods for specific documents and is a good 

resource to review prior to filing with the FLRA.
Slide 69

EFILING

69

• The FLRA website if located at www.flra.gov. Registration is required prior to filing any 

documents in the eFiling system. The FLRA verifies registrants prior to approval and it is 

recommended to complete your registration in advance of any filing deadlines.
Slide 70

EFILING

20XX 70
Slide 71

EFILING

20XX 71
Slide 72

SERVICE ON OTHER PARTY 

REQUIRED

• Parties must serve other parties EVERYTHING they file with the 

Authority

• Union must serve Agency representative and Agency head

• Methods of Service:

• Mail or Commercial Delivery

• In person

• Email (ONLY if other party consents)

72

• 5 C.F.R. § 2429.27 explains the requirements and options for serving other parties. Email 

service requires consent from the opposing party prior to using that method. Also, the

FLRA's eFiling system does NOT automatically serve the other parties. It is the duty of the 

party filing with the FLRA to serve all documents on the other parties.
Slide 73

20XX 73
Slide 74

20XX 74

• The Agency mails the Union a copy of its Statement of Position (SOP) with a 

postmark date of November 1 and the Union receives the Agency’s SOP on 

November 3.

• What is the Union’s deadline to file its Response to the Agency’s SOP?

Holiday

Holiday

74
Slide 75

20XX 75

SOP 

Received

SOP

Mailed 1

9 10 11 12 13 14

2 3 4 5 6 7 8

15

Response Sunday due

75
Slide 76

20XX 76

• The Union mails the Agency a copy of its Response with a postmark date of 

December 4 and the Agency receives the Union’s Response on December 8.

• What is the Agency’s deadline to file its Reply to the Union’s Response?

Holiday

76
Slide 77

20XX 762

Response

received

Response

mailed 1

9 10 11 12 13 14

2 3 4 5 6 7 8

15

Reply Sunday due Holiday

77
Slide 78

BASES FOR AN

AUTHORITY DECISION

78
Slide 79

• Noncompliance with Procedural Requirements

• Failure to comply with certain procedural and other requirements

• Failure to timely file

• No negotiability dispute (look to each proposal/provision)

• E.g., if only bargaining-obligation dispute

• Proposal outside duty to bargain or provision is illegal

79

BASES FOR DISMISSING 

PETITIONS

• No negotiability dispute: e.g., 65 FLRA 738, 741

• Bargaining-obligation dispute: 5 C.F.R. § 2424.2(a)
Slide 80

NONCOMPLIANCE WITH 

PROCEDURAL REQUIREMENTS

80

Minor/Technical 

Deficiency

Show-Cause 

Order

Union noncompliance: 

may dismiss petition or 

relevant portions of 

petition

Agency noncompliance: 

may order bargaining or 

withdrawal of Agencyhead disapproval

Procedural 

Deficiency Order
Slide 81

NONCOMPLIANCE WITH 

PROCEDURAL REQUIREMENTS

81

Untimely Filing Show-Cause Order

Union noncompliance: 

may dismiss petition

Agency noncompliance: 

may order bargaining or 

withdrawal of Agency-Head 

disapproval
Slide 82

• Jurisdictional

• Mootness

• No advisory opinions

• Burden on party arguing, but Authority may raise “sua sponte”

• Issues that led to filing of petition resolved, or no longer a 

dispute between the parties

• E.g., not bargaining over wording in petition

• E.g., parties reached agreement 82

BASES FOR DISMISSING 

PETITIONS

• No advisory opinions: 5 C.F.R. § 2429.10

• Issues resolved: 66 FLRA 393, 393

• Not bargaining over wording in petition: 67 FLRA 280, 281-83

• Parties reached agreement: 52 FLRA 251, 254
Slide 83

• “Directly Related” to ULP or Grievance

• Generally dismiss petition if Union has filed ULP charge or grievance 

alleging ULP

• Exception in “compelling need” cases

• Dismissal without prejudice: Union may refile petition within 30 days of 

administrative resolution of ULP charge or grievance, if negotiability 

issue has not been resolved

83

BASES FOR DISMISSING 

PETITIONS

• Directly Related: 5 C.F.R. § 2424.30(a)

• Grievance was directly related to petition: 56 FLRA 796, 797

• Grievance wasn’t directly related: 66 FLRA 1038, 1038-39

• Compelling Need: 5 U.S.C. § 7112(a)(2); 5 C.F.R. § 2424.50
Slide 84

The Authority may dismiss a petition:

• If petition seeks review of proposal/provision that 

has not “substantively changed” from prior 

petition; or

• If the Authority dismissed previous petition with 

prejudice

84

BASES FOR DISMISSING 

PETITIONS

• Not substantially changed from prior petition: 56 FLRA 236, 237-38; 71 FLRA 779, 780

• Dismissed previous petition with prejudice: 50 FLRA 541, 541-43 (dismissing petition based 

on earlier Authority decision, 50 FLRA 121, which was dismissed with prejudice)
Slide 85

• If parties’ agreed-to meaning, or Union’s explanation, is consistent 

with wording, the Authority will adopt it

• If meaning is inconsistent, Authority won’t adopt it

• Provision cases – defer to the parties’ bargaining representatives 

agreed-to meaning of the executed agreement at the bargaining 

table; not Agency-head review meaning

• Meaning adopted by Authority will apply in other proceedings, 

unless modified by the parties 85

“MEANING” ISSUES

• Parties agree on meaning: e.g., 65 FLRA 509, 510

• Parties disagree on meaning: e.g., 67 FLRA 654, 655-56; 66 FLRA 278, 278; 51 FLRA 451, 459

• Provisions: e.g., 65 FLRA 509, 514

• Meaning adopted applies in other proceedings: e.g., 55 FLRA 562, 564 n.9
Slide 86

Union: Within duty to bargain, not contrary to law, or permissive; 

how severed proposal operates independently (in its response)

Agency: Outside duty to bargain or contrary to law

Both: Create record & support arguments

• Failure to raise and support = waiver

• Failure to respond = concession

• Failure to support = bare assertion

86

PARTIES' BURDENS/FAILURE TO 

MEET

• Create record & support: 5 C.F.R. § 2424.32(a)-(c)

• Union’s burden: id. § 2424.32(a)

• Agency’s burden: id. § 2424.32(b)

• Waiver: id. § 2424.32(d)(1)

• Concession: id. § 2424.32(d)(2)

• Bare assertion: e.g., 66 FLRA 124, 128
Slide 87

AUTHORITY’S 

DECISION 

AND ORDER

Proposals:

• Dismiss petition

• Order bargaining

• If proposal concerns 

permissive matter, the 

order will say so

Provisions:

• Dismiss petition

• If mandatory or 

permissive, order 

Agency head to rescind 

disapproval 87
Slide 88

• Possible scenarios:

• Comply

• Timely move for reconsideration (within 10 days after service)

• Appeal to U.S. Court of Appeals within 60 days. But can’t make 

arguments that weren’t made to Authority (except in “extraordinary 

circumstances”)

• Report, to the appropriate Regional Director, any failure to comply –

within a “reasonable period of time” after 60-day appeal time expires

88

AFTER THE DECISION AND ORDER

• Motion for reconsideration: 5 C.F.R. § 2429.17

• Judicial review: 5 U.S.C. § 7123(a)(1)

• Compliance: 5 C.F.R. § 2424.41
Slide 89

COMMON MISTAKES

89
Slide 90

COMMON 

MISTAKES

90

Union's Service Requirements for all 

filings

•Must serve the correct Agency head or 

designee, along with the Agency representative

•Must serve everything filed with the FLRA on the 

Agency

Content of the Union's Petition

•Must include language of each and every 

proposal

•Beware of proposals with only a bargainingobligation dispute

•Beware of co-pending disputes (ULP, Grievance, 

Court, FSIP)
Slide 91

COMMON

MISTAKES

91

Timing and Service of the SOP, Union 

Response, and Agency Reply

•These periods are not based on having a postpetition conference

•Initial conversations with CADRO do not imply that 

the case is in abeyance

•The date of receipt is when the U.S. Postal Service 

or commercial delivery service delivers the service 

copy, not once it has gone through mailroom 

security

•The Union Response and Agency Reply are 15-day 

periods

•Please include everything that was eFiled, including 

a copy of the eFiling form itself
Slide 92

BEST 

PRACTICES

92

For service via mail or commercial delivery, 

please get tracking information.

For help identifying the Agency head or 

designee, please contact Case Intake and 

Publication at (771) 444-5805.

Keep track of your deadlines. If you need 

additional time, please request it early!

Continue bargaining and seek 

mediation when appropriate.
Slide 93

20XX 93 93
Slide 94

QUESTION 1

94

During a bargaining session over four proposals, the 

Agency orally states that all four proposals are 

nonnegotiable. Later that evening, the Union emailed 

the Agency requesting a written allegation of 

nonnegotiability.

The next day the Agency responds via email and states 

that proposal 1 violates management’s rights, proposal 

2 is covered by an existing agreement, proposal 3 is 

being bargained at the wrong level, and proposal 4 is 

contrary to 5 U.S.C. § 7121(c)(5).

Question: If the Union wants to file a negotiability petition, 

based on the email, what proposals involve a negotiability 

dispute?

Answer: Proposals 1 and 4
Slide 95

95

QUESTION 2

Using the scenario from Question 

1, the Agency emails the Union a 

copy of its written allegation on 

November 8, 2023.

Question: When is the Union’s 

deadline to file its Petition 

for Review?

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

29 30 31 1 2 3 4

5 6 7 8 9 10 11

12 13 14 15 16 17 18

19 20 21 22 23

Holiday

24 25

26 27 28 29 30 1 2

Petition

DUE!

Answer: November 24, 2023

Written

Allegation
Slide 96

QUESTION 3

96

Question: What is the Agency's 

deadline to file its Statement of 

Position?

The Union mails a copy of its petition 

to the Agency on November 24, 

2023. The Agency's Chief Negotiator 

receives the service copy on 

November 29, 2023. The Agency 

head receives its service copy on 

December 2, 2023.

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

26 27 28 29 30 1 2

3 4 5 6 7 8 9

10 11 12 13 14 15 16

17 18 19 20 21 22 23

24 25

Holiday

26 27 28 29 30

31 1

Holiday

2 3 4 5 6

Agency 

Head

Rec’d

SOP 

Answer: January 2, 2024 DUE! 96
Slide 97

QUESTION 4

97

Question: What is the Union's 

deadline to file its Response?

The Agency mails the service 

copy of its Statement of 

Position to the Union on 

January 2, 2024. The Union 

receives the service copy on 

January 16, 2024.

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

31 1

Holiday

2 3 4 5 6

7 8 9 10 11 12 13

14 15

Holiday

16 17 18 19 20

21 22 23 24 25 26 27

28 29 30 31 1 2 3

Union

Rec’d

Response Answer: January 31, 2024 DUE!
Slide 98

QUESTION 5

98

Question: What is the Agency's 

deadline to file its Reply?

The Union mails the service copy of its 

Response to the Agency on January 

31, 2024. The Agency receives the 

service copy on February 2, 2024.

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

28 29 30 31 1 2 3

4 5 6 7 8 9 10

11 12 13 14 15 16 17

18 19

Holiday

20 21 22 23 24

25 26 27 28 29 1 2

Agency 

Rec’d

Reply

DUE!

Answer: February 20, 2024
Slide 99

ANY QUESTIONS?

99
Slide 100

CONTACT 

US

For any procedural or case related 

questions, please feel free to contact 

the Office of Case Intake and 

Publication at (771) 444-5805.

100

• The Office of Case Intake and Publication can answer basic procedural questions, but cannot 

provide legal advice. The phone number is staffed from 9 am to 5 pm ET, Monday through 

Friday.
Slide 101

THANK YOU!

• Questions?

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101