Decision on Request for General Statement of Policy and Guidance (Authority decision, May 30, 1980)

Final FLRA decision. The Authority denied the request for general policy guidance. This ends that request; judicial review of final Authority orders is governed by 5 U.S.C. § 7123(a), subject to its statutory exceptions.

Plain-English summary

AFGE asked the Authority to issue general guidance on a duty to bargain during the term of a collective agreement. The Authority found the issue better suited to unfair labor practice procedures, which could address a concrete factual record. It denied the policy request without deciding a specific midterm bargaining dispute.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a).
• Outcome: General policy request denied.
• Key point: A case with developed facts was the proper forum for the question.

Full text (FLRA public release)

[ v03 p334 ]

03:0334(53)PS

The decision of the Authority follows:

3 FLRA No. 53

Case No. 0-PS-11

DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY AND
GUIDANCE

AS PREVIOUSLY ANNOUNCED, /1/ THE AUTHORITY RECEIVED A REQUEST FROM
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) THAT THE
AUTHORITY ISSUE A GENERAL STATEMENT OF POLICY OR GUIDANCE AS TO THE
OBLIGATION TO NEGOTIATE DURING THE TERM OF A COLLECTIVE BARGAINING
AGREEMENT.

THE SPECIFIC MATTER AT ISSUE, SUBSTANTIALLY AS STATED BY AFGE, IS THE
FOLLOWING:

DOES THE EMPLOYER, IN A BARGAINING RELATIONSHIP, HAVE AN OBLIGATION
TO BARGAIN AT THE

DEMAND OF THE EXCLUSIVE REPRESENTATIVE ON A MANDATORY SUBJECT FOR
BARGAINING DURING THE TERM

OF AN AGREEMENT, WHETHER THE MATTER UPON WHICH BARGAINING IS DEMANDED
IS COVERED BY THE TERMS

OF A COLLECTIVE BARGAINING AGREEMENT OR NOT? STYLED FROM THE
EXCLUSIVE REPRESENTATIVE'S

PERSPECTIVE, DOES THE UNION HAVE THE RIGHT TO DEMAND BARGAINING ON A
MATTER COVERED BY THE

TERMS OF AN AGREEMENT OR NOT COVERED IN AN AGREEMENT, AND HAVE THE
EMPLOYER BARGAIN IN GOOD

FAITH?

BEFORE DECIDING WHETHER ISSUANCE OF A POLICY STATEMENT WAS WARRANTED,
THE AUTHORITY INVITED INTERESTED PERSONS TO EXPRESS THEIR VIEWS IN
WRITING WITH RESPECT TO THE QUESTION OF WHETHER THE AUTHORITY SHOULD
ISSUE A POLICY STATEMENT ON THIS MATTER.

THE AUTHORITY HAS CAREFULLY CONSIDERED THIS REQUEST, INCLUDING THE
VIEWS SUBMITTED IN RESPONSE TO THE NOTICE ISSUED BY THE AUTHORITY, AND
DETERMINED THAT THE REQUEST DOES NOT SATISFY THE STANDARDS GOVERNING THE
ISSUANCE OF GENERAL STATEMENTS OF POLICY AND GUIDANCE SET FORTH IN
SECTION 2427.5 OF THE AUTHORITY'S RULES AND REGULATIONS (45 FED.REG.
3516(1980)), WHICH PROVIDE IN PERTINENT PART:

SEC. 2427.5 STANDARDS GOVERNING ISSUANCE OF GENERAL STATEMENTS OF
POLICY AND GUIDANCE.

IN DECIDING WHETHER TO ISSUE A GENERAL STATEMENT OF POLICY OR
GUIDANCE, THE AUTHORITY SHALL

CONSIDER:

(A) WHETHER THE QUESTION PRESENTED CAN MORE APPROPRIATELY BE RESOLVED
BY OTHER MEANS;

(B) WHERE OTHER MEANS ARE AVAILABLE, WHETHER AN AUTHORITY STATEMENT
WOULD PREVENT THE

PROLIFERATION OF CASES INVOLVING THE SAME OR SIMILAR QUESTION(.)

THE MATTER RAISED IN THIS REQUEST FOR A GENERAL STATEMENT OF POLICY
OR GUIDANCE CAN BE MORE APPROPRIATELY RESOLVED BY OTHER MEANS. FOR
EXAMPLE, THE PROCEDURES SET FORTH IN THE STATUTE AND APPROPRIATE
REGULATIONS FOR THE RESOLUTION OF UNFAIR LABOR PRACTICES PROVIDE A
MECHANISM FOR THE RESOLUTION OF THE VARIOUS FACTUAL ISSUES INVOLVED IN A
CHARGE THAT A PARTY HAS REFUSED TO NEGOTIATE IN GOOD FAITH AS REQUIRED
BY THE STATUTE. THOSE PROCEDURES ALSO PROVIDE A MECHANISM FOR THE
RESOLUTION OF ISSUES OF LAW, THAT MAY BE ANCILLARY TO SUCH FACTUAL
ISSUES, AS TO WHETHER A MATTER PROPOSED FOR NEGOTIATIONS IS WITHIN THE
DUTY TO NEGOTIATE.

ALSO, AUTHORITY ACTION ON THIS REQUEST IS NOT WARRANTED SINCE IT
WOULD NOT PREVENT THE PROLIFERATION OF CASES INVOLVING THE SAME OR
SIMILAR QUESTIONS. IN THE AUTHORITY'S VIEW, A MEANINGFUL STATEMENT ON
THE MATTER RAISED IN THE REQUEST WOULD REQUIRE CONJECTURE BY THE
AUTHORITY ON A WIDE VARIETY OF POTENTIAL CIRCUMSTANCES. SUCH A
STATEMENT WOULD CARRY THE POTENTIAL OF UNSETTLING RATHER THAN
FACILITATING THE UNDERSTANDING OF OTHER PARTIES AS TO HOW THE STATEMENT
WOULD APPLY IN THEIR PARTICULAR SITUATION.

ACCORDINGLY, THE REQUEST FOR A GENERAL STATEMENT OF POLICY OR
GUIDANCE IS DENIED.

ISSUED, WASHINGTON, D.C., MAY 30, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ FEDERAL LABOR RELATIONS AUTHORITY, NOTICE RELATING TO THE
ISSUANCE OF A POLICY STATEMENT, 44 FED.REG. 63580 (NOV. 5, 1979).