Federal Service Impasses Panel (Authority decision, February 5, 1993)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying a request for a general ruling. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Federal Service Impasses Panel asked the Authority to clarify an agency's bargaining duties when a question about union representation arises after the Panel begins handling an impasse. A decertification petition had been filed in a case before the Panel, which then put that case on hold. The Authority sought comments but received none from agencies or unions. It found that the scope of bargaining duties during a representation dispute could depend on the facts of a particular case and that the record was too limited for a general ruling. The Authority denied the Panel's request without deciding the underlying bargaining question.

Decision snapshot

• Authority: Referral of a major policy question under 5 C.F.R. § 2429.4.
• Outcome: Panel's request for a general ruling denied.
• Key point: Bargaining duties during a representation dispute require a factual setting that this general ruling request did not provide.

Full text (FLRA public release)

[ v46 p1335 ]
46:1335(129)PS

The decision of the Authority follows:

46 FLRA No. 129

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL SERVICE IMPASSES PANEL

(Petitioner)

0-PS-32

_____

ORDER DENYING REQUEST FOR MAJOR POLICY RULING

February 5, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

In accordance with section 2429.4 of the Authority's Rules and Regulations,(1) the Federal Service Impasses Panel (Panel) has requested the Authority to issue a ruling on the following issue:

Is there a duty on the part of an agency to continue to cooperate with impasse proceedings if a question concerning representation arises following the Panel's assertion of jurisdiction over an impasse?

Panel Request at 2.

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 will deny the request.

II. Background

The Panel states that it has before it a dispute where parties have reached impasse over the terms of an initial collective bargaining agreement. The Panel states further that after it asserted jurisdiction over the dispute, it was informed that a timely Decertification of Exclusive Representative (DR) petition had been filed. The Panel then determined to hold the case in abeyance pending resolution of the question concerning representation (QCR).

According to the Panel, the Authority's decision in United States Department of Justice, United States Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, National Border Patrol Council and American Federation of Government Employees, Local 2455 and International Brotherhood of Police Officers, 9 FLRA 253 (1982) (INS), dismissed as to other matters sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, 727 F.2d 481 (5th Cir. 1984), provides "some guidance to employers as to their general obligations during the pendency of a QCR[.]" Panel Request at 2. However, the Panel states that "there is no existing Authority case law which explains to an employer what it should do . . . when a QCR arises following the commencement of impasse proceedings." Id. The Panel claims that, as a result, the Panel and the parties are unsure of their obligations and agencies risk violating the Statute if they act improperly. The Panel notes that the National Labor Relations Board (NLRB) has established and applies a general doctrine in similar cases arising under the National Labor Relations Act.(2)

Following receipt of the Panel's request, the Authority requested from agencies, labor unions, and other interested persons written comments concerning whether the Authority should issue a general ruling on the question raised by the Panel and, if a ruling is issued, what it should be. 57 Fed. Reg. 45058 (1992). Comments were not received from any agencies or labor unions. However, the General Counsel of the Authority submitted written comments stating that the Authority should issue the ruling requested by the Panel and, in such ruling, should adopt the policy articulated by the NLRB in RCA Del Caribe and Dresser Industries. The General Counsel asserts, in this regard, that "[t]he particular question raised by the Panel brings the entire [INS] doctrine into question." General Counsel Comments at 5.

III. Discussion

In INS, the Authority held, as relevant here, that an agency is "obligated to maintain existing conditions of employment during the pendency of
[a QCR]." 9 FLRA at 255. The Authority also held that this obligation "would not prevent [an agency] from making changes in otherwise negotiable personnel policies, practices and matters affecting working conditions under all circumstances, such as where such changes were required consistent with the necessary functioning of the agency." Id. at n.2.

The Panel notes correctly that there is no Authority precedent concerning what an agency "should do to 'maintain existing conditions of employment' when a QCR arises following the commencement of impasse proceedings." Panel Request at 2. The Panel does not suggest, in this connection, and it is not apparent, that different standards should apply to determine bargaining obligations during the pendency of a QCR depending on whether bargaining has resulted in an impasse before the Panel. As such, we agree with the General Counsel that the issue raised by the Panel brings into question the entire INS doctrine. However, we find that the record developed in connection with the Panel's request does not provide an adequate basis on which to examine, or determine in the context of a general ruling, the full spectrum of parties' rights and obligations with regard to bargaining during the pendency of a QCR. In this regard, we find that the nature and extent of such rights and obligations may well depend on the facts and circumstances of particular cases. Indeed, the INS doctrine itself expressly requires consideration of individual facts and circumstances. Accordingly, and noting that no labor unions or agencies filed comments in response to our request, we conclude that resolution of this issue is not appropriate in a general ruling. Therefore, we will deny the Panel's request.

IV. Order

The Panel'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 . .
. Panel 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. The Panel cites, among other cases,
   RCA Del Caribe, Inc., 262 NLRB 963 (1982) and Dresser Industries, Inc., 264 NLRB 1088 (1982). In RCA Del Caribe, the NLRB held, as relevant here, that "the mere filing of a representation petition by an outside, challenging union" will not "require or permit an employer to withdraw from bargaining or executing a contract with an incumbent union." 262 NLRB at 965 (footnote omitted). In Dresser Industries, the NLRB held that "the mere filing of a decertification petition" will not "require or permit an employer to withdraw from bargaining or executing a contract with an incumbent union." 264 NLRB at 1089 (footnote omitted).