[Federal Register Volume 62, Number 225 (Friday, November 21, 1997)]
[Notices]
[Pages 62315-62316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30688]


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FEDERAL LABOR RELATIONS AUTHORITY


Notice of Opportunity to Submit Amicus Curiae Briefs in an Unfair 
Labor Practice Proceeding Pending Before the Federal Labor Relations 
Authority; FLRA Case No. WA-CA-40743

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of the opportunity to file amicus curiae briefs in a 
case pending before the Federal Labor Relations Authority. In the 
subject case, the Authority is determining whether section 2(d) of 
Executive Order 12871 constitutes an agency election to bargain on 
matters set forth in section 7106(b)(1) of the Federal Service Labor-
Management Relations Statute (5 U.S.C. 7106(b)(1)), and whether such an 
election can be enforced in Authority unfair labor practice and 
subsequent court review proceedings.

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SUMMARY: The Federal Labor Relations Authority provides an opportunity 
for all interested persons to file briefs as amici curiae on a 
significant issue arising in a case pending before the Authority. The 
issue is common to a number of other cases also pending before the 
Authority. The Authority is considering the cases pursuant to its 
responsibilities under the Federal Service Labor-Management Relations 
Statute, 5 U.S.C. 7101-7135 (1994 & Supp. II 1996) (Statute). The issue 
concerns an agency's obligation to negotiate on subjects set forth in 
section 7106(b)(1) of the Statute in light of the provisions of 
sections 2(d) and 3 of Executive Order 12871. Section 2(d) of Executive 
Order 12871 provides in relevant part that agency heads subject to 
Chapter 71 of title 5, United States Code shall ``negotiate over the 
subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate 
officials to do the same[.]'' Section 3 of Executive Order 12871 
provides in relevant part that it ``is not intended to, and does not, 
create any right to administrative or judicial review, or any other 
right, substantive or procedural, enforceable by a party against the 
United States, [or] its agencies * * * .''

DATES: Briefs submitted in response to this notice will be considered 
if received by mail or personal delivery in the Authority's Case 
Control Office by 5 p.m. on Thursday, December 18, 1997. Placing 
submissions in the mail by this deadline will not be sufficient. 
Extensions of time to submit briefs will not be granted.

ADDRESSES: Mail or deliver briefs to Peter Constantine, Director, Case 
Control Office, Federal Labor Relations Authority, 607 14th Street, 
NW., Room 415, Washington, D.C. 20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Director, Case 
Control Office, Federal Labor Relations Authority, (202) 482-6540.

SUPPLEMENTARY INFORMATION: The case presenting the issue on which 
amicus briefs are being solicited is before the Authority on exceptions 
to a recommended decision and order of an Administrative Law Judge 
(Judge) resolving unfair labor practice allegations. The following 
summary is offered.

[[Page 62316]]

    In its partial decision in U.S. Department of Commerce, Patent and 
Trademark Office, Case No. WA-CA-40743 (PTO), the Authority concluded, 
in agreement with the Judge, that the agency violated sections 
7116(a)(1) and (5) of the Statute by failing to bargain with the union 
over the impact and implementation of its decision to use term 
appointments to fill certain bargaining unit positions. The Authority 
also determined that the agency's decision to use term appointments 
concerns a matter encompassed by section 7106(b)(1) of the Statute. 
However, the Authority did not rule on the General Counsel's allegation 
that the agency violated the Statute by failing to bargain over the 
substance of its decision to use the term appointments. The Authority 
in PTO decided that resolving this remaining allegation requires 
examining provisions of the Statute and Executive Order 12871, as well 
as relevant precedent.
    The Authority determined that the record before it in PTO did not 
adequately address issues critical to completing the analysis required 
to decide this remaining allegation. In particular, the Authority 
stated that the parties in PTO, as well as parties in other pending 
cases in which the General Counsel had similarly alleged that agencies 
had violated the Statute by refusing to bargain over matters 
encompassed by section 7106(b)(1), have not fully addressed long-
established precedent regarding bargaining obligations under section 
7106(b)(1).
    Accordingly, with respect to the remaining allegation concerning 
the agency's obligation under section 7106(b)(1) to bargain over its 
decision to use term appointments, the Authority described in Section 
IV.C. through E. of its partial decision in PTO, applicable precedent 
and questions that arise from the parties' arguments. The Authority 
directed the parties in PTO and the other listed cases to submit briefs 
on the questions developed in its partial decision. The questions are 
set forth below.
    Additionally, parties in the other listed cases were directed to 
address whether there are facts or issues in their cases that are 
distinguishable from those in PTO on the particular allegation that the 
respondent was obligated to bargain under section 7106(b)(1).
    Finally, the Authority provided the parties to the various cases 
the opportunity to request oral argument before the Authority. However, 
the Authority determined that participation in any oral argument would 
be confined to the parties to the various pending cases, in the absence 
of a demonstration that the interests of a person desiring to 
participate in the oral argument will not adequately be represented by 
these parties.
    In addition to PTO, the other pending cases are:
    1. Department of the Air Force, 647th Air Base Group, Hanscom Air 
Force Base, Massachusetts (and National Association of Government 
Employees, SEIU, AFL-CIO, Local R1-8), Case No. BN-CA-41011;
    2. U.S. Department of Justice, Immigration and Naturalization 
Service (and American Federation of Government Employees, National 
Border Patrol Council, AFL-CIO), Case No. WA-CA-50048;
    3. Social Security Administration, Santa Rosa District Office, 
Santa Rosa, California (and American Federation of Government 
Employees, Council 147, AFL-CIO), Case No. SF-CA-50155; and
    4. U.S. Department of Veterans Affairs Medial Center, Lexington, 
Kentucky (and National Association of Government Employees), Case No. 
CH-CA-50399.
    Although the questions set forth below were asked of the parties in 
PTO and the other cases listed above, the matters addressed in the 
questions posed are likely to be of concern to the Federal sector 
labor-management relations community in general. Therefore, the 
Authority finds it appropriate to provide for the filing of amicus 
curiae briefs responding to the following questions, and addressing any 
other matters deemed relevant to resolving the questions raised in this 
and the other cases listed above concerning the respondent's obligation 
to bargain under section 7106(b)(1) of the Statute. Responses should 
address, at a minimum, the Statute, legislative history, Executive 
Order 12871, Authority and judicial precedent, as discussed in the 
Authority's partial decision in PTO. If it is contended that this 
precedent is distinguishable or was wrongly decided, the responses 
should provide the basis for this contention.
    1. Under what circumstances, if any, does an election to bargain 
under section 7106(b)(1) of the Statute create rights and obligations 
that are enforceable through unfair labor practice proceedings?
    2. If there are circumstances when an election to bargain is 
enforceable under the Statute, are those circumstances present in PTO, 
or in any of the other cases listed above? For example, if an 
``irrevocable'' election can be made, has such an election been made by 
PTO?
    3. Does section 2(d) of Executive Order 12871 constitute an agency 
election, within the meaning of section 7106(b)(1) of the Statute, to 
bargain on proposals on matters set out in section 7106(b)(1)?
    4. If an election to bargain creates rights and obligations that 
are enforceable under any circumstances, what is the extent of the 
bargaining required to satisfy the obligations? For example, does the 
obligation to bargain extend to impasse, or is it satisfied by some 
other ``amount'' of bargaining?
    5. In view of the fact that the President's issuance of Executive 
Order 12871 is the only basis asserted for finding that an election to 
bargain has been made that is binding on the agency, is enforcing the 
election barred by Section 3 of the Executive Order?
    6. If the Authority were to find that there are circumstances when 
an election to bargain is enforceable under the Statute, and that such 
circumstances are present in PTO or in any of the other cases listed 
above, should a violation be found in PTO or in any of those other 
cases? If so, what is the appropriate remedy to enforce the election?
    All briefs shall be captioned ``U.S. Department of Commerce, Patent 
and Trademark Office, Case No. WA-CA-40743, Amicus Brief'' and shall 
contain separate, numbered headings for each issue discussed. Briefs 
must include a signed and dated statement of service that complies with 
the Authority's regulations (5 CFR 2429.27(a) and (c)) showing service 
of one copy of the brief on all counsel of record or other designated 
representatives in PTO and the other cases listed above. Copies of the 
Authority's partial decision in PTO, dated November 17, 1997, and a 
list of the designated representatives for that and the other cases may 
be obtained in the Authority's Case Control Office at the address set 
forth above. Copies of these materials will be forwarded (by mail or by 
facsimile) to any person who so requests by contacting Peter 
Constantine at the same address. An original and four (4) copies of 
each amicus brief must be submitted, with any enclosures, on 8\1/
2\ x 11 inch paper.

(Authority: 5 U.S.C. 7105(a)(2)(G) & (I))

    .Dated: November 17, 1997.

    For the Authority.
Peter Constantine,
Director, Case Control Office, Federal Labor Relations Authority.
[FR Doc. 97-30688 Filed 11-20-97; 8:45 am]
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