Federal Service Impasses Panel request for general ruling (Authority decision, April 29, 1988)

Final FLRA decision. The Authority denies the Panel's request for a general ruling about when agencies must preserve existing working conditions during negotiations or mediation. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The Federal Service Impasses Panel asked the Authority to state generally when an agency must maintain existing working conditions while bargaining or mediation continues. The Panel said some unions sought its help before using mediation, potentially delaying agency changes. The Authority found that the answer depends on facts such as notice, bargaining requests, the nature of the proposed change, and whether impasse procedures were invoked in time. It denied the broad request and said those questions must be resolved case by case. It also cautioned that a dispute pending before mediation does not itself free an agency to implement a change.

Decision snapshot

• Authority: 5 C.F.R. § 2429.4; 5 U.S.C. § 7119(a) and (b).
• Outcome: Request for a general ruling denied.
• Key point: Status quo obligations during negotiations depend on the facts of each case.

Full text (FLRA public release)

[ v31 p1294 ]
31:1294(120)MC

The decision of the Authority follows:

31 FLRA NO. 120
29 APR 1988

Case No. 0-MC-12

ORDER DENYING REQUEST FOR GENERAL RULING

I. Statement of the Case

The Federal Service Impasses Panel (the Panel) has requested the Authority to issue a ruling on the following issue:

Under what circumstances, if any, is an employer obligated to maintain the status quo with respect to changes in personnel policies, practices, and working conditions during either bilateral negotiations or mediation of a labor agreement?

For the reasons discussed below, we conclude that the issue involved in the Panel's request is not appropriate for resolution through the issuance of a general ruling. Accordingly, we deny the request.

II. The Panel's Request

The Panel states that labor organizations have filed requests for Panel assistance without having first used the services of the Federal Mediation and Conciliation Service (FMCS) to resolve impasses. The Panel states further that its investigations into these requests reveal that labor organizations have filed the requests in order to delay implementation of changes in working conditions. According to the Panel, labor organizations have interpreted the Authority's decision in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985), as prohibiting an agency from implementing a change in working conditions only when the union involved has filed a request for Panel assistance.

The Panel states that it is in a "difficult position" when labor organizations "bypass the negotiation and mediation process." The Panel asserts that it has two options in this situation. First, it may hold the case in abeyance until the parties have completed their efforts to reach agreement, a course of action which may cause the parties to be confused as to whether FMCS or the Panel has asserted jurisdiction. Second, the Panel may decline to assert jurisdiction because its assistance was requested prematurely. If it declines to assert jurisdiction, the Panel states that the "union may be harmed" because the agency could be relieved of its obligation to maintain the status quo even though the union may subsequently request assistance from FMCS.

According to the Panel, the issuance of an Authority ruling on its request would clarify the law, deter parties' efforts to circumvent statutory procedures, and enhance opportunities for voluntary settlements.

III. Discussion

Section 2429.4 of the Authority's regulations provides that the Panel "may refer for review and decision or general ruling by the Authority any case involving a major policy issue that arises in a proceeding before" it. For the reasons which follow, we decline to issue the ruling requested by the Panel.

Authority decisions concerning whether changes in working conditions properly may be implemented by an agency have turned on many different factors. In the case cited by the Panel--Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466--for example, the Authority stated (at page 469):

(O)nce parties have reached an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible i.e., to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate.

Under this standard, whether or not the status quo must be maintained after parties have reached impasse depends on such factors as (1) whether the agency provided the exclusive representative with a reasonable opportunity to seek third-party assistance, for example, U.S. customs Service, 16 FLRA 198 (1984); (2) whether the exclusive representative timely requests third-party assistance, for example, Department of the Navy, United States Naval Supply Center, San Diego, California, 31 FLRA 1088 (1988); and (3) whether implementation of the change is consistent with the necessary functioning of the agency, for example, U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986). These factors involve evaluations of the facts in each case.

Whether or not the status quo must be maintained during bilateral negotiations depends on a case-by-case analysis also. Among the factors which may be addressed in these cases are: (1) whether the change affects conditions of employment as defined in section 7103(a)(14) of the Federal Service Labor - Management Relations Statute, for example, Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA 605 (1986); (2) whether the nature and extent of the effect or reasonably foreseeable effect of the change gives rise to a bargaining obligation, for example, Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986); (3) whether the exclusive representative clearly and unmistakably waived its right to negotiate, for example, Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981); (4) whether the agency has provided specific and clear notice to the exclusive representative concerning the nature of the intended change, for example, Department of the Army, Harry Diamond Laboratories, Adelphi, Maryland, 9 FLRA 575 (1982); (5) whether the agency has provided notice which is sufficient to enable the exclusive representative to develop bargaining proposals, for example, Bureau of Government Financial Operations Headquarters, 11 FLRA 334 (1983); (6) whether the agency is obligated to bargain over the substance of the change or the impact and implementation of the change, for example, United States Department of Justice, Immigration and Naturalization Service, Washington D.C., 31 FLRA 145 (1988); (7) whether the exclusive representative timely requests to bargain, for example Internal Revenue Service (District, Region, National Office Unit), 14 FLRA 698 (1984); (8) whether the exclusive representative's proposals are negotiable, for example, Department of Health and Human Services, Social Security Administration, Baltimore. Maryland, 31 FLRA 651 (1988); and (9) whether the agency was required to implement the change in order to correct an illegal practice, for example, Department of the Interior, U.S. Geological Survey conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA 543 (1982).

Because resolution of issues concerning unilateral changes in working conditions necessitates determinations on many factors and the evaluation of the facts in each case, we find that we are unable to grant the Panel's request that we issue a general statement detailing the "circumstances" in which an agency is "obligated to maintain the status quo with respect to changes in personnel policies, practices, and working conditions(.)" We conclude that our determinations on the issue posed must be made on a case-by-case basis.

Although we conclude that the Panel's request is too broad to be answered in a general ruling, we urge the parties to approach negotiations over changes in conditions of employment with commitments to bilateral problem-solving and accommodation. Of course, statutory and regulatory requirements concerning the resolution of impasses must be observed. Those requirements include the use of FMCS or other third-party mediation services to resolve negotiation impasses. See 5 U.S.C. 7119(a) and (b); 5 C.F.R. 2470.2 (e), 2471.1. Consistent with these requirements, our decision here should not be read in any way to mean that an agency is free to implement a change in working conditions simply because the parties' dispute is pending before FMCS.

IV. Conclusion

For the foregoing reasons, the Panel's request for a general ruling is denied.

Issued, Washington, D.C., April 29, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY