[Federal Register Volume 63, Number 231 (Wednesday, December 2, 1998)]
[Rules and Regulations]
[Pages 66405-66418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31970]



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  Federal Register / Vol. 63, No. 231 / Wednesday, December 2, 1998 / 
Rules and Regulations  

[[Page 66405]]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2424


Negotiability Proceedings

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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SUMMARY: The Chair and Members of the Authority component (the 
Authority) of the Federal Labor Relations Authority (the FLRA) revise 
the regulations concerning negotiability proceedings. The revisions are 
designed to expedite these proceedings and facilitate dispute 
resolution.

EFFECTIVE DATE: April 1, 1999.

ADDRESSES: Written comments received are available for public 
inspection during normal business hours at the Office of Case Control, 
Federal Labor Relations Authority, 607 14th Street, NW., Washington, 
D.C. 20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Office of Case 
Control, at the address listed above or by telephone # (202) 482-6540.

SUPPLEMENTARY INFORMATION:

Background

    In an effort to improve its decision-making processes, the Chair 
and Members of the Authority established an internal task force to 
study and evaluate the policies and procedures in effect concerning 
negotiability proceedings under 5 U.S.C. 7117. To this end, the 
Authority published a Federal Register notice (63 FR 19413) (April 20, 
1998) inviting the public to submit written comments on several 
subjects relevant to negotiability proceedings, and to participate in a 
focus group held in May 1998 to discuss these matters.
    Subsequently, the Authority proposed revisions to part 2424 of the 
Authority's regulations concerning negotiability proceedings. The 
proposed rule was published in the Federal Register and public comment 
was solicited on the proposed changes (63 FR 48130) (September 9, 
1998). The Authority invited comment on the proposed rule in two ways: 
by convening meetings in October 1998 in Chicago, IL, Oakland, CA, and 
Washington, DC, and by offering the public an opportunity to submit 
written comments. Formal written comments were submitted by seven 
agencies, six exclusive representatives, and two individuals. In 
addition, over 80 individuals, representing many agencies and exclusive 
representatives, participated in meetings to discuss the proposed 
regulations. All comments, whether expressed orally in a meeting or 
submitted in writing, have been considered prior to publishing the 
final rule, and most comments are specifically addressed in the 
section-by-section analysis below. Revisions to the proposed rule have 
been made, for the most part, in response to suggestions and comments 
received.

Significant Changes

    The final rule, like the proposed rule, involves important changes 
in the processing of negotiability appeals. The final rule incorporates 
significant changes from the proposed rule, based on consideration of 
comments received. The most significant change is that the Authority 
determined not to include in the final rule requirements that: (1) An 
exclusive representative file with the Authority a notice of intent to 
institute a negotiability appeal; and (2) parties participate in a 
conference with a representative of the FLRA prior to the filing of a 
petition for review by the exclusive representative concerning a 
proposal for bargaining. These proposed requirements would have applied 
only to bargaining proposals; they were not proposed to apply to 
disputes involving provisions that had been disapproved by agency heads 
under 5 U.S.C. 7114(c). The proposed notice of appeal and prefiling 
conference requirements were intended to provide an opportunity to 
explore resolution of the dispute, and narrow and clarify issues 
remaining to be resolved on appeal.
    Many of the commenters to the proposed rule objected to the 
proposed notice of appeal and prefiling conference requirements. The 
reasons for these objections included comments that the notice of 
appeal and prefiling conference would lead to unnecessary delay in 
resolution of the negotiability appeal, and comments that the Authority 
did not have a sufficient interest in a prefiling dispute to warrant 
these regulatory requirements. Commenters generally agreed, however, 
that a conference that included representatives of the parties and the 
FLRA would be useful during the processing of a negotiability appeal.
    In response to these comments, the final rule does not include the 
notice of appeal and prefiling conference requirements. Instead, the 
final rule provides for a ``post-petition conference'' to be held in 
cases involving a proposal or provision after the exclusive 
representative has filed its petition for review but before the agency 
files its statement of position. The purpose of the post-petition 
conference, which may be held in person or telephonically, is to ensure 
that the parties have a common understanding of the meaning and impact 
of the proposal or provision at issue; to determine whether there are 
factual disputes concerning the proposal or provision; and to discuss 
other relevant matters, including whether the parties wish to explore 
alternative dispute resolution.
    The final rule also differs from the proposed rule by eliminating 
the provision that would have precluded parties from raising new 
arguments after the close of the filing conferences. The final rule 
requires that the agency raise and support in its statement of position 
all of its arguments that a proposal or provision is outside the duty 
to bargain or contrary to law, respectively. The exclusive 
representative, in its response, is required to raise and support any 
arguments opposing arguments made in the agency's statement of 
position. The agency is then provided with a right to file a submission 
not previously proposed: a reply to arguments raised for the first time 
in the exclusive representative's response. This submission is limited 
to replying to new arguments in the exclusive representative's 
response.
    In other respects, the final rule retains significant aspects of 
the proposed rule. In particular, it establishes procedures designed to 
facilitate the resolution in one proceeding of all issues raised in

[[Page 66406]]

connection with a petition for review, including those issues 
previously processed exclusively under unfair labor practice or 
grievance procedures. Among other things, with one exception, the final 
rule retains the portion of the proposed rule that results in dismissal 
without prejudice of a petition for review where an unfair labor 
practice charge or grievance is pending over issues directly related to 
the petition.
    The proposed rule has also been modified in many other respects, 
primarily in response to specific comments. All of the changes from the 
proposed rule are described in the following sectional analysis of the 
final rule.

Sectional Analyses

    Sectional analyses of the amendments and revisions to part 2424, 
Negotiability Proceedings, are as follows:

Part 2424--Negotiability Proceedings

Subpart A--Applicability of This Part and Definitions

Section  2424.1

    Commenters recommended that the Authority change the effective date 
of the rule to allow parties sufficient time to train employees and 
develop procedures to protect their respective interests under the 
revised rule. To address these concerns, the final rule establishes an 
April 1, 1999 effective date.

Section  2424.2

    Numerous commenters responded favorably to the addition of a 
definition section to this part. Several changes have been made to 
particular definitions, in response to suggestions offered by 
commenters.
    Changes have been made in subsection (a) and (c) to clarify and 
distinguish the two types of disagreements over the duty to bargain, 
which the proposed rule identified as ``bargaining disputes'' and 
``negotiability disputes.'' Several commenters suggested that the term 
``bargaining dispute'' was confusing in that it commonly is used to 
apply to a broader range of disputes than contemplated by the 
definition of the term in the proposed regulations, and other 
commenters suggested alternative terms. To address these concerns, the 
term ``bargaining dispute'' has been changed to ``bargaining obligation 
dispute'' in the final rule. The term ``negotiability dispute'' has 
been retained in the final rule. In order to avoid confusion over the 
disputes to which these terms apply, examples have been provided in 
both subsection (a) and subsection (c).
    Several comments indicated that the concept of ``provision'' in 
subsection (f) appeared to be broader than its proposed definition and, 
in particular, should be defined to include a contract term imposed by 
the Federal Service Impasses Panel pursuant to 5 U.S.C. 7119 and 
disapproved by an agency head pursuant to 5 U.S.C. 7114(c). The final 
rule is modified to reflect that a provision encompasses any matter 
disapproved on agency head review.
    With respect to the definition of ``service'' in subsection (g), 
the final rule remains unchanged from the proposed rule and requires 
that the exclusive representative serve its filings on both the 
agency's principal bargaining representative and the head of the 
agency. In this regard, the final rule does not incorporate the 
recommendation of one commenter that the requirement for the exclusive 
representative to serve copies of its filings be limited to service on 
the agency head, as required in 5 U.S.C. 7117(c)(2)(B). The Authority 
views service on both the agency's principal bargaining representative 
and the agency head as important to ensure that appropriate agency 
officials receive prompt notice of the exclusive representative's 
filing of the petition for review, as well as subsequent filings. 
Ensuring that appropriate agency officials receive prompt notice of the 
filing of a petition for review is particularly important in view of 
the requirement in Sec. 2424.23 of the final regulations that 
appropriate agency officials be available and prepared to participate 
in a post-petition conference within a short time after the filing of 
the petition. Thus, although the final rule imposes a burden on 
exclusive representatives, this burden is outweighed, in the 
Authority's view, by the benefits resulting from the service 
requirement.
    The final rule in subsection (h) modifies the definition of 
``severance'' from that in the proposed rule to make clear that the 
purpose of severance is to determine whether a severed portion of a 
proposal or provision is within the duty to bargain, or contrary to 
law, in the event that some portions of the proposal or provision are 
found to be outside the duty to bargain or contrary to law. In effect, 
severing portions of a proposal or provision results in the creation of 
separate proposals or provisions. Thus, severed portions must have 
independent meaning, and any dispute over severed portions must be 
argued separately. Resolving bargaining obligation and negotiability 
disputes regarding portions of a proposal or provision lengthens the 
time necessary to issue decisions and orders, and requires expenditures 
of additional resources--separate arguments and responses--by both 
parties. Accordingly, exclusive representatives should request 
severance only in situations where they wish to bargain over portions 
of a proposal, or have only portions of a provision included in a 
collective bargaining agreement in the event that some portions are 
found to be outside the duty to bargain or contrary to law.
    One commenter suggested that the definition of ``written allegation 
concerning the duty to bargain'' in subsection (i) be changed to 
``written allegation'' or ``written allegation concerning the legality 
of a proposal or provision'' to eliminate any confusion associated with 
the term ``bargain,'' which is also used in the unfair labor practice 
context. Although the final rule does not adopt this suggestion, the 
definition of ``petition for review'' makes clear that appeals under 
part 2424 must involve a negotiability dispute: if only a bargaining 
obligation dispute is involved, then the appeal cannot be resolved 
under part 2424.
    As discussed in further detail in the commentary to Subpart B, the 
definition of ``notice of intent to appeal'' in the proposed rule has 
been eliminated from the final rule.
    Finally, one commenter recommended that the final rule define the 
term ``conditions of employment.'' The final rule does not adopt this 
recommendation because the definition of this term is set forth in 5 
U.S.C. 7103 (a)(14), and its inclusion in the regulations would be 
duplicative.

Sections  2424.3-2424.9

    These sections are reserved.

Subpart B--Alternative Dispute Resolution; Requesting and Providing 
Allegations Concerning the Duty To Bargain

    As noted in the introductory discussion, the Authority received 
many comments objecting to the proposed prefiling requirement and, in 
particular, prefiling conferences. Commenters did not, however, object 
to the optional use of such procedures. Several commenters suggested 
that mandatory prefiling conferences would result in unnecessary delay 
and would involve the Authority too early in the negotiability process. 
Commenters also suggested that efforts directed at

[[Page 66407]]

alternative dispute resolution would be better handled through programs 
and/or agencies specifically designed for that purpose, such as the 
FLRA's Collaboration and Alternative Dispute Resolution Program (CADR) 
or the Federal Mediation and Conciliation Service. Other commenters 
questioned the legality of the proposed prefiling conditions as well as 
the proposal to preclude parties from later raising arguments that had 
not been raised during the prefiling conference. In response to these 
comments, the final rule eliminates all proposed prefiling conditions, 
including the notice of intent to appeal and the mandatory prefiling 
conferences. As discussed in the commentary to Sec. 2424.10, however, 
parties are encouraged to explore opportunities for resolution of 
disputes that arise under part 2424.

Section  2424.10

    Parties uniformly supported the retention of the CADR Program for 
voluntary dispute resolution. The final rule encourages parties to 
utilize the CADR process in an effort to reach a collaborative 
resolution of issues that arise under part 2424. In response to 
suggestions, the final rule includes point of contact information for 
the CADR office.

Section  2424.11

    The final rule on requesting and providing written allegations 
concerning the duty to bargain has been modified to reflect the 
elimination of proposed prefiling conditions governing petitions for 
review. The rule retains the current procedure for requesting and 
providing allegations concerning the duty to bargain. In response to a 
commenter, the rule has been clarified to state that a union may file a 
petition for review where an agency does not respond to a written 
request for the agency's written allegation concerning the duty to 
bargain. The regulation has also been clarified to state that, if an 
agency provides the union an unrequested written allegation concerning 
the duty to bargain, then the union may choose either to file a 
petition for review or to wait and later request another written 
allegation from the agency. A union is required to file a petition for 
review, on penalty of losing its right to appeal the agency's 
allegation, only where the agency's written allegation is in response 
to a written request by the union.

Section  2424.12-2424.19

    These sections are reserved.

Subpart C--Filing and Responding to a Petition for Review; Conferences

Section  2424.20

    As noted in the earlier commentary concerning Subpart B, the 
prefiling conditions have been eliminated. The final rule has been 
modified to reflect this change.
    One commenter suggested that agencies should be provided a right to 
file petitions. This suggestion was not adopted because 5 U.S.C. 
7117(c), which mandates the negotiability procedure, provides for 
appeals by exclusive representatives only. In the event an agency 
believes that a union has refused to bargain over a mandatory subject 
of bargaining, it may file an unfair labor practice charge. See 
American Federation of Government Employees v. Federal Labor Relations 
Authority, 778 F.2d 850, 853 n.4 (D.C. Cir. 1985).

Section  2424.21

    One commenter, noting that the proposed rule was silent on this 
matter, suggested that the final rule specify that an agency head 
disapproval of a provision under 5 U.S.C. 7114(c) triggers the time 
limit for filing a petition for review. The final rule incorporates 
this suggestion.

Section  2424.22

    Several commenters asserted that the filing requirements were 
unnecessarily legalistic and burdensome. Commenters recommended that 
the final rule be revised to make clear the specific information the 
exclusive representative is required to provide in its petition for 
review. In response to these concerns, subsection (a), stating the 
purpose of the petition for review, has been added, and subsection (b) 
of the final rule, which specifies the information that must be 
included in a petition for review, has been amplified. Also in response 
to one comment, the final rule makes clear that an exclusive 
representative is required to provide the meaning of a proposal or 
provision in the petition for review. The final rule does not adopt the 
suggestion of one commenter to delete the requirement that a table of 
contents and table of authorities be included when a petition exceeds 
25 double-spaced pages in length. These tables, which will be required 
only for lengthy submissions, will assist both the parties and the 
Authority in reviewing complex petitions.
    One commenter questioned whether the proposed regulations intended 
to delete the procedure in Sec. 2424.4(c) of the current regulations, 
which provides that filing an ``incomplete petition for review will 
result in the exclusive representative being asked to provide the 
missing or incomplete information.'' The commenter is correct in that a 
parallel section was not included in the proposed regulations, and is 
not included in the final regulations. The Authority does not intend by 
this to alter its current practice insofar as both parties are now, and 
will in the future continue to be, given an opportunity to correct 
minor or technical deficiencies in a filing. Such minor or technical 
deficiencies include failing to provide the correct number of copies of 
documents, or failing to include a statement of service. The 
consequences of failure to comply with an order requiring such 
correction are set forth in Sec. 2424.32(d). However, the fact that the 
Authority will provide opportunities for parties to correct minor, 
technical deficiencies in filing does not mean that parties may 
reasonably rely on the Authority to provide them an opportunity to 
correct other deficiencies, such as failure to raise and support, or 
failure to respond to, an argument. Consistent with Sec. 2424.32(c), 
these latter failures will, where appropriate, be deemed waivers or 
concessions.
    In response to comments that certain matters, including exclusive 
representatives' requests for severance, and exclusive representatives' 
assertions that proposals or provisions constitute procedures and/or 
appropriate arrangements under 5 U.S.C. 7106(b) (2) and (3), 
respectively, would be better addressed at a later stage in the 
proceeding, the final rule has been changed. In particular, subsection 
(c) of the final rule does not require that an exclusive representative 
raise and address any request for severance in its petition for review. 
Moreover, the responsibility of the exclusive representative to raise 
any arguments concerning procedures and appropriate arrangements under 
5 U.S.C. 7106 (b)(2) and (b)(3) has been moved to the exclusive 
representative's response to the agency's statement of position set 
forth in Sec. 2424.25 of the final rule. However, an exclusive 
representative may choose to raise these matters in its petition for 
review. As discussed in the commentary to Sec. 2424.24, if an exclusive 
representative raises such matters in its petition for review, then the 
agency is required to respond to the matters in its statement of 
position because failure to do so may be deemed a waiver or concession.
    The final rule also modifies the requirement that the exclusive 
representative provide copies of authorities on which it relies. In

[[Page 66408]]

response to comments that this requirement would be burdensome, the 
rule limits the documents that must be provided to those not ``easily'' 
available to the Authority. This is intended to clarify that copies of 
such authorities as provisions in the United States Code, Government-
wide regulations, and published precedent need not be provided. 
However, as agency regulations and such matters as sections in 
collective bargaining agreements are not easily available, copies of 
these must be provided. If a filing party is in doubt as to whether an 
authority it relies on is easily available to the Authority, the party 
is encouraged to seek guidance from the Case Control Office, whose 
address and telephone number appear in 5 CFR 2429.24.

Section  2424.23

    As noted previously, the proposed rule required a prefiling 
conference in cases involving proposals for bargaining and a postfiling 
conference in cases involving provisions disapproved by an agency head 
under 5 U.S.C. 7114(c). Although commenters generally disfavored 
mandatory prefiling conferences, commenters generally favored 
postfiling conferences. The final rule provides in subsection (a) that 
a representative of the FLRA will, where appropriate, schedule and 
conduct a conference following the filing of a petition for review 
involving proposals and provisions. Although a post-petition conference 
is not required in all cases, it is expected that one will be held in 
most cases. In response to a suggestion that a time frame be provided 
for completion of the conference, the final rule provides that all 
reasonable efforts will be made to schedule and conduct the post-
petition conference within 10 days of receipt of the petition for 
review.
    One commenter objected that post-petition conferences should not 
include mandatory mediation or settlement discussions. Subsection (b) 
of the final rule has been modified to eliminate any suggestion that 
the post-petition conference is intended to mediate the dispute or 
require settlement. Nevertheless, it is envisioned that parties will be 
asked whether they would like to pursue alternative dispute resolution 
options, including CADR services. Subsection (b) reflects that the 
purpose of the conference is to assist the parties in discussing, 
clarifying and resolving the issues in the negotiability appeal. These 
issues include the meaning of a proposal or provision, whether there 
are factual disputes, and other matters. Where appropriate, 
modification of the wording of a proposal or provision to conform to 
the intended or agreed-upon meaning of the proposal or provision will 
be encouraged.
    Several commenters objected to an automatic extension of the time 
limits under Secs. 2424.24 and 2424.25. In response to these 
objections, subsection (b) is modified to reflect that the subject of 
extension of the time limits under Secs. 2424.24 and 2424.25--
specifically whether such extension is requested--will be discussed 
during the post-petition conference, and that the FLRA representative 
conducting the conference is authorized to grant a requested extension 
when it would effectuate the purposes of the Federal Service Labor-
Management Relations Statute, 5 U.S.C. 7101 et seq. A request for an 
extension of time also may be filed pursuant to Sec. 2429.23 of this 
subchapter.
    Several commenters asserted that parties would be more likely to 
discuss, clarify and resolve their disputes if no record were made of 
the conference. Other commenters recommended that, if a record of the 
conference were prepared, then the Authority should make clear that 
parties are not limited to arguments and assertions made during the 
conference. The final rule retains the record of the conference, 
providing in subsection (c) that a written statement of the conference, 
including whether the parties agree on the meaning of the proposal or 
provision and other appropriate matters, will be prepared at, or 
following the conclusion of, the conference and will be provided to the 
parties by the FLRA representative. However, commenters' assertions 
that parties should not be prevented from raising and supporting new 
arguments after the conclusion of the conference are addressed by the 
modification to Sec. 2424.32(c) of the final rule, which clarifies that 
an agency is not limited to the arguments it raises in a conference. As 
described in the commentary to Sec. 2424.32(c), the final rule 
clarifies that an agency is precluded from raising a new argument only 
after the filing of its statement of position, and that an exclusive 
representative is so precluded only after the filing of its response to 
the statement of position. In this regard, the purpose of the 
requirement in Sec. 2424.23 that the parties' representatives must be 
prepared and authorized to discuss, clarify, and resolve bargaining 
obligation and negotiability disputes is to facilitate discussion and 
understanding and, thereby to expedite resolution of a petition for 
review, not to ``lock'' the parties into particular arguments or 
prevent the parties from raising new arguments in their subsequent 
filings. The Authority intends, by this provision, to encourage the 
parties to engage in a frank and open discussion of issues raised by 
the petition for review.

Section  2424.24

    The purpose of the statement of position has been added as 
subsection (a) of this section. Several commenters questioned whether 
the time limit for filing an agency's statement of position could be 
extended. As explained in the commentary to Sec. 2424.23, an extension 
of time will be granted by the FLRA representative at the post-petition 
conference if it is requested and where the extension would effectuate 
the purposes of the Statute. An extension also may be requested under 
Sec. 2429.23 of this subchapter. The final rule makes clear in 
subsection (b) that, unless an extension has been granted, the 
statement of position must be filed within 30 days after the date the 
head of the agency is served with a copy of the petition for review. 
Because the 30-day time limit for filing a statement of position is 
established by 5 U.S.C. 7117(c)(3), it cannot be shortened. 
Accordingly, the final rule does not adopt the suggestion of one 
commenter that the time limit for filing a statement of position be 
limited to 15 days. However, because it does not establish the 
Authority's jurisdiction over the petition for review, the 30-day time 
limit for filing a statement of position, as well as the time limit set 
forth in 5 U.S.C. 7117(c)(4) for filing the exclusive representative's 
response, may be extended upon request and when it would effectuate the 
purposes of the Statute.
    Agencies uniformly objected, as previously noted, to the proposed 
rule precluding any arguments in the statement of position that were 
not raised in the conference prior to filing its statement of position. 
The final rule, in Sec. 2424.32(c), is modified to reflect that an 
agency is not limited to arguments made in the post-petition 
conference; an agency is precluded from raising new arguments only 
after the filing of its statement of position.
    Comments to the proposed rule viewed it as overly burdensome and 
unnecessary to require the agency to provide a copy of all the laws, 
rules, regulations, and other authorities cited. As set forth 
previously in connection with Sec. 2424.22, the final rule is changed 
to require the agency to provide only those authorities that are not 
``easily available.'' Also as set forth previously, examples of such 
materials include, but are not limited to, agency rules or

[[Page 66409]]

regulations and provisions of a collective bargaining agreement. As 
with Sec. 2424.22, and for reasons stated in the commentary to that 
section, the final rule retains the requirement of a table of contents 
and a table of authorities when a statement of position exceeds 25 
double-spaced pages in length.
    One commenter noted that, with respect to severance, it would be 
unduly burdensome to anticipate how severance might affect proposals or 
provisions in general when the exclusive representative has not stated 
its position on severance. Responding to this concern, the final 
regulation clarifies in subsection (d) that an agency is required to 
respond to a severance request in its statement of position only when 
the exclusive representative has requested severance in its petition 
for review.
    The Authority emphasizes that the agency is not limited in its 
statement of position to responding to matters raised in the exclusive 
representative's petition for review. However, under 
Sec. 2424.32(c)(2), a failure to respond to an argument raised in the 
exclusive representative's petition for review may, where appropriate, 
be deemed a concession. Accordingly, the agency is required to respond 
to arguments made in the exclusive representative's petition for 
review, including arguments--such as severance and asserted exceptions 
to management's rights--that the exclusive representative is not 
required to include in a statement of position. Moreover, under 
Sec. 2424.32(c)(1) of these regulations, the agency may not raise new 
arguments, in this or any other proceeding, after the filing of the 
statement of position. Therefore, the agency must raise and support in 
its statement of position all of its bargaining obligation and 
negotiability claims, whether or not those claims are responsive to 
requests and arguments made in the exclusive representative's petition 
for review.

Section  2424.25

    As with Secs. 2424.22 and 2424.24, a subsection--(a)--stating the 
purpose of the exclusive representative's response has been added. 
Several commenters suggested that the time limits for filing a response 
could not be extended. As noted earlier in connection with 
Secs. 2424.23 and 2424.24, time limits may be extended when requested 
and when such extension will effectuate the purposes of the Statute. 
Thus, the final rule makes clear in subsection (b) that an exclusive 
representative's response must be filed within 15 days of service of 
the agency's statement of position, unless an extension of time has 
been granted.
    Subsection (c) of the final rule has been modified, based on 
comments noted in the commentary to Sec. 2424.22. The modification 
clarifies that, if the exclusive representative believes that a 
proposal or provision is within the obligation to bargain or is not 
contrary to law, respectively, because it comes within an exception to 
management rights under section 7106(a), then the exclusive 
representative is required to assert and support this claim either in 
its petition for review or in its response to the agency's statement of 
position. Exceptions to management rights, set forth in 5 U.S.C. 
7106(b), include that a proposal or provision is bargainable at an 
agency's election, that the proposal or provision constitutes a 
procedure, and/or that it constitutes an appropriate arrangement. If 
the exclusive representative does not assert in its petition for review 
that an exception to management rights applies, then the exclusive 
representative must do so in its response to the agency's statement of 
position.
    In general, the exclusive representative's response is limited to 
matters raised in the agency's statement of position. The only 
exception is a request for severance, which subsection (d) clarifies 
may be asserted for the first time in a response.
    As with Secs. 2424.22 and 2424.24 of the final rule, the 
requirement that the exclusive representative provide a copy of all 
laws, rules, regulations and authorities cited has been modified to 
include only those authorities not easily available to the Authority.
    The Authority emphasizes that, under Sec. 2424.32(c)(2), a failure 
to respond to an argument raised in the agency's statement of position 
may, where appropriate, be deemed a concession. Moreover, under 
Sec. 2424.32(c)(1) of these regulations, the exclusive representative 
may not raise new arguments, in this or any other proceeding, after the 
filing of the response. Therefore, the exclusive representative must 
raise and support in its response all of its arguments in support of 
finding the proposal or provision within the duty to bargain or not 
contrary to law, respectively. With the exception of severance, the 
exclusive representative's response is limited to arguments raised in 
the agency's statement of position.

Section  2424.26

    A new section permitting a reply by the agency has been added to 
the final rule. As outlined in the commentary to Secs. 2424.22 and 
2424.25, the exclusive representative is not required in the initial 
stage of the negotiability proceeding to anticipate agency arguments. 
In particular, an exclusive representative's arguments concerning 
exceptions to management rights and severance may be asserted for the 
first time in the exclusive representative's response to the agency's 
statement of position. In order that the agency has an opportunity to 
address arguments raised for the first time in the exclusive 
representative's response, this section of the final rule establishes 
that the agency may file a reply to such arguments. The agency reply 
constitutes a new filing that will, in some cases, extend the time 
necessary to resolve a petition for review. However, the Authority 
anticipates that permitting the filing of a reply will not delay 
decisions but, rather, will expedite them by providing a more complete 
record of the parties' arguments and authorities.
    Subsection (a) of the final rule states the purpose of the agency's 
reply. Subsection (b) provides that an agency must file any reply 
within 15 days after it has been served with a copy of the exclusive 
representative's response. Subsection (c) of the final rule outlines 
the information to be included in the agency's reply and specifically 
limits the agency's reply to those matters raised in the exclusive 
representative's response to the agency's statement of position. 
Subsection (d) addresses the agency's responsibility to explain with 
particularity why the exclusive representative's request for severance, 
if any, is not appropriate. Service requirements are outlined in 
subsection (e) of the final rule.
    The Authority emphasizes that an agency's reply is limited to 
arguments raised for the first time in the exclusive representative's 
response. Thus, as set forth earlier in the commentary to Sec. 2424.24, 
the agency should respond fully in its statement of position to all 
arguments raised in the exclusive representative's petition for review, 
and should not defer such responses to its reply. A failure to respond 
to arguments raised in the exclusive representative's response may be 
deemed a concession under Sec. 2424.32 of these regulations.

Section  2424.27

    Noting that the Authority seldom accepts additional submissions, 
one commenter suggested that the regulations should reflect this 
practice. In particular, the commenter recommended that the Authority 
adopt an ``extraordinary circumstances'' standard concerning the filing 
of additional submissions. The final rule incorporates this suggestion 
and adopts the suggested standard. The final rule

[[Page 66410]]

also adopts the recommendation that any additional submission must be 
filed no later than 5 days after receipt of the Authority's order 
granting the request. The final rule does not adopt the suggestion that 
the time for filing an opposition to an additional submission be 
limited to 5 days after receipt of the additional submission and, 
instead, provides that an opposition be filed no later than 15 days 
after receipt of the additional submission. The additional time is 
provided in recognition of the fact that the responding party may have 
no advance notice that the submission will be filed and, as such, a 5-
day response period is not sufficient.

Sections  2424.28-2424.29

    These sections are reserved.

Subpart D--Processing a Petition for Review

Section  2424.30

    Several commenters addressed the proposed rule establishing a new 
process for resolving petitions for review that concern both 
negotiability and bargaining obligation disputes. Those in favor of the 
proposed changes asserted that a unified process would be more 
efficient than the present system. Those opposed to the changes 
contended that the negotiability process does not lend itself to 
addressing bargaining obligation disputes and that the existing system 
does not need modification.
    The Authority has determined that, with certain changes, the 
proposed rule should be made final. In this regard, the Authority's 
experience has been that the piecemeal resolution of bargaining 
obligation and negotiability claims is both inefficient and 
ineffective. The changes adopted in this rule will reduce duplicative 
administrative decision making and increase the likelihood that 
disputes will be resolved more timely.
    With respect to the specific changes proposed, some commenters 
asserted that, where both a negotiability appeal and unfair labor 
practice charge have been filed, the exclusive representative should 
retain the right to select the procedure that would go forward. This 
suggestion was rejected, on the ground that unfair labor practice 
proceedings are, in these situations, better suited to resolving the 
entire dispute.
    In this regard, with the sole exception of compelling need claims, 
which is discussed below, all bargaining obligation and negotiability 
claims may be adjudicated in an unfair labor practice proceeding. 
Further, unless excluded from the scope of the parties' grievance 
procedure by agreement, alleged unfair labor practices may be resolved 
under such negotiated procedures. Thus, with one exception, dismissing 
petitions for review where unfair labor practice charges have been 
filed does not jeopardize a party's ability to obtain adjudication of 
all claims. In addition, as clarified in Sec. 2424.40(a), and with the 
exception of orders to bargain, remedies available in unfair labor 
practice proceedings under 5 U.S.C. 7118(a)(7) are not be available in 
Authority decisions and orders issued under this part. Accordingly, in 
situations where an exclusive representative has filed an unfair labor 
practice charge, requiring adjudication in a negotiability proceeding 
would deprive a prevailing exclusive representative of such remedies.
    The one exception to the principle that all bargaining obligation 
and negotiability claims may be adjudicated in an unfair labor practice 
or grievance proceeding concerns petitions for review where the agency 
makes a negotiability claim that a proposal or provision conflicts with 
an agency regulation for which there is a compelling need under 5 
U.S.C. 7117(b). Such compelling need claims must be resolved under the 
procedures of part 2424. See Department of the Army, Aberdeen Proving 
Ground v. Federal Labor Relations Authority, 485 U.S. 489 (1988) 
(compelling need determinations may not be adjudicated in an unfair 
labor practice proceeding). Moreover, an agency cannot be found to have 
committed an unfair labor practice by refusing to bargain over a 
proposal over which it has made a compelling need claim unless the 
Authority has made a prior compelling need determination in a 
proceeding under part 2424. See Department of the Army, Soldier Support 
Center, Fort Benjamin Harrison, Office of the Director of Finance and 
Accounting, Indianapolis, Indiana, et al., 41 FLRA 926, 933 n.1 (1991). 
Thus, unless an agency's compelling need claim regarding a proposal or 
provision has previously been resolved by the Authority, there is no 
basis on which to dismiss the petition for review, or the portion of it 
relating to such proposal or provision, to permit resolution of all 
issues in an unfair labor practice or grievance proceeding.
    In view of the foregoing comments and considerations, subsection 
(a) of the final rule is modified to clarify that there is an 
exception--a proposal or provision over which a compelling need 
negotiability claim is raised--to the requirement to dismiss a petition 
for review without prejudice in the event an unfair labor practice 
charge or grievance has been filed over issues directly related to the 
petition for review. Petitions for review, or portions of them, 
concerning proposals or provisions subject to compelling need claims 
will be processed under part 2424.
    In addition, the rule is modified to provide that, within 30 days 
following administrative resolution of the unfair labor practice charge 
or grievance, an exclusive representative may refile the petition for 
review and the Authority will determine whether resolution of the 
petition is required. The reference in subsection (a) to administrative 
resolution is intended to exclude any time necessary for judicial 
review. That is, an exclusive representative may not await the outcome 
of judicial review in the unfair labor practice or grievance 
arbitration proceeding before refiling the petition for review. With 
regard to an arbitration award, for purposes of refiling a petition for 
review, the Authority will apply 5 U.S.C. 7122(b) and find an award 
final and binding in the event no timely exceptions to the award are 
filed with the Authority; if exceptions are timely filed, then the 
award is final and binding for purposes of refiling a petition for 
review when the Authority resolves the exceptions.
    In determining whether resolution of the petition is required, the 
Authority will take into consideration such matters as whether, 
consistent with the resolution of the unfair labor practice charge or 
grievance, an Authority decision and order finding a proposal within 
the duty to bargain and directing bargaining could be enforced.
    The final rule clarifies in subsection (b) how the Authority will 
process a petition for review where the exclusive representative has 
not pursued a bargaining obligation dispute in any other proceeding. As 
with the proposed rule, subsection (b) distinguishes between two 
categories of cases: (1) Cases where no bargaining obligation dispute 
exists; and (2) cases where both a negotiability dispute and a 
bargaining obligation dispute exist. With respect to the first 
category, the final rule remains unchanged from the proposed rule, 
providing that where there is no bargaining obligation dispute, the 
Authority will resolve the petition under the procedures of this part. 
With respect to the second category, subsection (b)(2) of the final 
rule provides that, where both a negotiability dispute and a bargaining 
obligation dispute exist, the Authority will inform the exclusive 
representative of any opportunity to file an unfair labor practice 
charge or grievance. If the exclusive representative pursues either

[[Page 66411]]

of these options, then the petition for review will be processed in 
accordance with subsection (a). If the exclusive representative does 
not pursue either of these options, then subsection (b)(2) of the final 
rule provides that the Authority will resolve all aspects necessary for 
disposition of the petition unless, in its discretion, the Authority 
determines that doing so is not appropriate.
    Subsection (b)(2) provides two examples of situations to illustrate 
where it is not appropriate to resolve all aspects of the petition for 
review under part 2424. The first is where resolution of the bargaining 
obligation dispute would unduly delay resolution of the negotiability 
dispute. A specific example of this is a petition for review involving 
a negotiability dispute that is clearly controlled by existing 
precedent such that a decision resolving only the negotiability dispute 
could be issued expeditiously, but numerous bargaining obligation 
dispute issues also are present. In such a case, the Authority may 
conclude that prompt resolution of the negotiability dispute only is 
preferable to delaying issuance of a decision and order so as to 
resolve bargaining obligation dispute issues at the same time. The 
second, related situation set forth in subsection (b) is where the 
procedures in another, available forum are better suited to resolving 
the bargaining obligation dispute. An example of this is a petition for 
review involving a bargaining obligation dispute raising issues of 
first impression. In such a case, the Authority may conclude that 
unfair labor practice procedures, which permit participation of the 
General Counsel and, thereby, facilitate consideration of the General 
Counsel's views on the issues of first impression, are better suited to 
resolution of the bargaining obligation dispute than are the procedures 
in this part.
    In circumstances where a proposal is within the duty to bargain, 
then any bargaining order under Sec. 2424.40 would be expressly 
conditioned on resolution of the unresolved bargaining obligation 
dispute in a manner requiring bargaining. On the other hand, if the 
proposal is outside the duty to bargain or the provision is contrary to 
law, resolution of the bargaining obligation dispute would be 
unnecessary.
    The Authority emphasizes that resolution of a petition for review 
involving bargaining obligation and negotiability disputes will not 
result in adjudication of whether an unfair labor practice has 
occurred. Such determination may be sought only pursuant to 5 U.S.C. 
7116 and 7118. Accordingly, although an Authority decision and order 
under part 2424 may include determination of underlying legal issues 
that could also be determined in unfair labor practice proceedings--
such as whether a proposed matter is covered by a collective bargaining 
agreement or whether the effect of a change in conditions of employment 
is de minimis--that determination will not be accompanied by a finding 
that an agency acted unlawfully by, for example, implementing a change 
in conditions of employment without bargaining. Such a finding can only 
be made in an unfair labor practice proceeding, or in a grievance 
proceeding determining whether an unfair labor practice occurred. In 
addition, as resolution of petitions for review under this part will 
not result in unfair labor practice adjudications, decisions and orders 
issued under this part will not, with the exception of orders to 
bargain, include remedies available under 5 U.S.C. 7118(a)(7) in unfair 
labor practice proceedings. Thus, if exclusive representatives desire 
such remedies, they should file an unfair labor practice charge or a 
grievance.

Section  2424.31

    Clarification was sought as to when and how the Authority would 
undertake fact finding as set forth in Sec. 2424.34 of the proposed 
rules. Comments also recommended that the Authority clarify the 
circumstances under which it would hold a hearing pursuant to 
Sec. 2424.38 of the proposed rules. Based upon these comments, 
Secs. 2424.34 and 2424.38 of the proposed rules have been consolidated 
and moved to this section.
    Subsection (a) of the final rule clarifies the actions that the 
Authority may take when necessary to resolve disputed issues of 
material fact or when such actions would otherwise aid in decision 
making. These actions include those set forth in the proposed rule, 
including a hearing under 5 U.S.C. 7117(b) and (c). The reference in 
the proposed rule to ``fact finding'' has been deleted as unnecessary 
in view of the inclusion in subsection (d) of ``other appropriate 
action.''
    One commenter suggested that fact finding be limited to unfair 
labor practice proceedings. This suggestion was rejected as 
inconsistent with the determination that bargaining obligation disputes 
could be resolved in the negotiability process.

Section  2424.32

    This section of the final rule combines requirements set forth in 
Secs. 2424.35 and 2424.37 of the proposed rule. The requirements have 
been combined to reduce repetition and clarify the parties' 
obligations.
    Subsections (a) and (b) of the final rule retain the requirement in 
Sec. 2424.37 (a) and (b) of the proposed rule specifying the parties' 
burdens. In particular, subsection (a) provides that the exclusive 
representative is responsible for raising and supporting arguments 
that, among other things, a proposal or provision is within the duty to 
bargain or not contrary to law, and subsection (b) provides that the 
agency has the burden of supporting arguments to the contrary.
    Subsection (c) retains and modifies requirements set forth in 
Secs. 2424.35 and 2424.37 of the proposed rules. In particular, 
subsection (c) specifies the consequences of a party's failure to 
raise, support, and/or respond to arguments and assertions. With 
respect to failure to raise and support arguments, subsection (c) 
states that such failure will, where appropriate, be deemed a waiver of 
such arguments. It also states that, absent good cause: (1) an agency 
may not raise in proceedings under part 2424 or any other proceeding 
arguments that could have been but were not raised in its statement of 
position or made responsively in its reply to the exclusive 
representative's response; and (2) an exclusive representative may not 
raise in proceedings under part 2424 or any other proceeding arguments 
that could have been but were not raised in the petition for review or 
responsively in the response to the agency's statement of position. 
With respect to failure to respond to arguments, subsection (c) states 
that such failure will, where appropriate, be deemed a concession to 
such arguments or assertions.
    Numerous comments were received objecting to the proposed 
requirement that, in connection with petitions for review concerning 
proposals, parties raise all arguments and issues at the prefiling 
conference or be precluded from raising such arguments and issues at a 
later stage in the negotiability appeal process. As stated previously, 
that requirement has been eliminated. However, the final rule precludes 
agencies and exclusive representatives from raising new arguments after 
the filing of the statement of position and response, respectively.
    Several commenters asserted that any regulation that deemed 
arguments not raised by an agency to be waived would be inconsistent 
with the decision of the United States Court of Appeals for the 
District of Columbia Circuit in Department of Transportation v. FLRA, 
145 F.3d 1425 (D.C. Cir. 1998) (FAA).

[[Page 66412]]

The Authority has concluded that the final rule is not inconsistent 
with the decision in FAA. In this regard, FAA did not address an 
agency's failure to raise an argument. In fact, the court concluded 
that, in FAA, the agency had ``squarely presented an argument to the 
[Authority].'' Id. at 1428. In addition, the court in FAA applied the 
Authority's existing negotiability regulations, which do not directly 
address filing requirements, burdens, waivers, and concessions. 
However, even under the existing regulations, the court in FAA stated 
that an agency has a burden to ``direct the Authority's attention, with 
as much specificity as possible, to the statutes and regulations 
relevant to an agency's duty to bargain * * *' '' Id. at 1428 (quoting 
National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 
886, 891 (D.C. Cir. 1982)).
    One commenter suggested that a regulation that deems an agency's 
failure to raise an objection a ``waiver'' would violate Rule 55(e) of 
the Federal Rules of Civil Procedure, which provides that there cannot 
be a ``judgment by default entered against the United States * * * 
unless the claimant establishes a claim or right to relief by evidence 
satisfactory to the court.'' However, the principle underlying this 
rule does not apply to the rule at issue, as is explained in the 
authority relied on by the commenter. Specifically, in the decision 
cited by the commenter, the United States Court of Appeals for the 9th 
Circuit stated that ``rule 55(e) was directed at defaults in the narrow 
sense of the government's failure to answer or otherwise move against a 
complaint, and was not intended to preclude the imposition, at a later 
stage in the proceeding, of sanctions or other court action which 
prevent the government from presenting further evidence or otherwise 
augmenting the record.'' Giampaoli v. Califano, 628 F.2d 1190 (9th Cir. 
1980).
    One commenter suggested that a failure to rebut an assertion should 
result in the finding of an adverse inference rather than a waiver or 
concession. An adverse inference is an evidentiary presumption that 
takes place when a party fails ``to call a particular witness, or to 
take the stand as a witness in a civil case, or voluntarily to produce 
documents or other objects in his or her possession as evidence,'' when 
it ``would be natural under the circumstances'' for the party to do so. 
2 John William Strong et al., McCormick on Evidence Sec. 264, at 184 
(4th ed. 1992); see also Internal Revenue Service, Philadelphia Service 
Center, 54 FLRA 674, 682 (1998). In negotiability disputes, the more 
comparable analogue for failing to rebut an assertion raised in a 
pleading is that set forth in Rule 12 of the Federal Rules of Civil 
Procedure. See 2 James Wm. Moore, Moore's Federal Practice Sec. 12.20 
(3d ed. 1998) (Moore's) (``Rule 12(b) requires a party to assert in the 
response to any pleading requiring a response, every legal or factual 
defense to the claims made.''). Thus, the final rule uses the more 
appropriate term of art for a failure to rebut arguments, which is 
``waiver'' or ``concession.'' See Moore's Sec. 12.22 (``Rule 12(h)(1) 
waives certain defenses omitted from a motion * * *.'').
    The revised negotiability procedures are intended to resolve, in 
most cases, all issues with respect to an agency's obligation to 
bargain over specific proposals or provisions. Accordingly, the 
Authority does not anticipate additional administrative proceedings 
before the Authority arising from the circumstances that occasioned the 
negotiability appeal. In any subsequent proceedings which might occur, 
the parties will not be permitted to relitigate the obligation to 
bargain over the proposals or provisions that were the subject of the 
negotiability appeal. In this regard, applying the well established 
principle of res judicata, a party will be barred from litigating not 
only those issues actually addressed by the Authority, but also any 
issues that could have been raised by the party in the negotiability 
proceeding. See Department of Health and Human Services, Social 
Security Administration, 41 FLRA 755, 772 (1991) (discussing the 
principles of res judicata). Further, where judicial review or 
enforcement of the Authority's order is sought, section 7123(c) of the 
Statute bars the parties from raising issues not presented to the 
Authority.
    Subsection (d) addresses a party's failure to participate in a 
post-petition conference under Sec. 2424.23, procedures directed under 
Sec. 2424.31, and a failure to respond to Authority orders. The 
subsection clarifies that, in addition to actions set forth in 
subsection (c), a failure to participate in a conference or to respond 
to an Authority order, such as an order directing correction of minor, 
technical deficiencies in a filing, may result in dismissal of a 
petition for review, with or without prejudice to the exclusive 
representative, or granting of the petition for review, with or without 
conditions. As noted previously in the commentary to Sec. 2424.22, the 
Authority intends to continue its current practice of permitting a 
party to correct such minor, technical deficiencies as failing to 
provide the correct number of copies or failure to attach a certificate 
of service to a filing. However, a party should not rely on this 
practice to provide an opportunity for it to correct failures to raise, 
support, and respond to arguments. Where appropriate, these latter 
failures will be deemed waivers or concessions, and opportunities to 
correct the failures will not be provided.

Section  2424.33-2424.39

    These sections are reserved.

Subpart E--Decision and Order

Section  2424.40

    One commenter objected that the Authority should not issue any 
order concerning negotiability where there are unresolved bargaining 
obligation disputes. The Authority's current practice is to issue 
orders in negotiability cases where there are such unresolved issues, 
and the final rule will continue this practice in some cases. However, 
as distinct from current practice, if a bargaining order is issued and 
there is an unresolved bargaining obligation dispute, then the order 
will be conditioned on resolution of the bargaining obligation dispute 
in a manner requiring bargaining.
    Another commenter requested that the Authority modify the 
regulations to require parties to implement portions of agreements that 
are not disputed. The Authority declines to do so on the ground that 
the partial implementation of contract terms in this situation is 
better addressed by the parties in ground rules or during the course of 
negotiations.
    Consistent with the commentary to Sec. 2424.30, subsection (a) is 
modified from the proposed rule to clarify that, with the exception of 
an order to bargain, the Authority's decision and order under part 2424 
will not include remedies that could be obtained in an unfair labor 
practice proceeding under 5 U.S.C. 7118(a)(7). In other respects, the 
final rule is the same as the proposed rule.

Section  2424.41

    One commenter noted that the use of the phrase ``specified period'' 
in the proposed rule may mislead parties into believing that the 
Authority would seek enforcement of an order before the 60-day period 
provided for in 5 U.S.C. 7123(a) had expired. In response to this 
concern, the final rule eliminates the phrase. However, the final rule 
is modified to make clear that the exclusive representative must bring 
to the attention of the appropriate Regional Director a failure to 
comply with an Authority order within a ``reasonable time'' following 
expiration of the 60-day

[[Page 66413]]

period. Failure to do so within a reasonable time may, if the matter is 
referred by the Regional Director to the Authority, result in the 
Authority determining not to seek enforcement of the order.

Sections  2424.42-2424.49

    These sections are reserved.

Subpart F--Criteria for Determining Compelling Need for Agency Rules 
and Regulations

Section  2424.50

    With one change to correct grammar, the final rule as promulgated 
is the same as the proposed rule.

Sections  2424.51-2424.59

    These sections are reserved.

Other Regulatory Requirements

    One commenter made several suggestions for modification of general 
regulatory requirements that were not responsive to particular sections 
in the proposed rules. In particular, the commenter requested that the 
Authority: (1) lengthen the time period for requesting reconsideration 
of a decision and order under part 2424; (2) modify the ``extraordinary 
circumstance'' requirement for obtaining reconsideration and grant 
reconsideration when the Authority's decision raises issues that could 
not have been anticipated by the parties before the decision, such as 
when the Authority decision creates a new legal standard; (3) 
promulgate a regulation requiring the Authority to seek the views of 
the parties whenever a case is remanded to the Authority on judicial 
review; and (4) modify existing regulations to permit the Office of 
Personnel Management (OPM) or any other Federal agency that administers 
laws having Federal Government-wide implications to intervene, obtain 
amicus status, or submit an advisory opinion in any case involving 
interpretation of such law.
    With regard to the time period for requesting reconsideration, 5 
C.F.R. 2429.17 provides that reconsideration of an Authority decision 
and order must be sought within 10 days after service of the decision 
and order. Although this time period is short, it encourages prompt 
consideration of any decision and order and permits, as necessary, 
correction of errors in the decision and order as quickly as possible. 
In addition, it applies to all Authority decisions and orders, not only 
those issued under part 2424. For these reasons, the Authority declines 
to extend the time period.
    As for the ``extraordinary circumstances'' required for 
reconsideration under Sec. 2429.17 of this subchapter, the existing 
standard, which requires case-by-case application, does not preclude a 
party from arguing that reconsideration should be granted because an 
Authority decision raises issues that could not have been anticipated. 
Moreover, extraordinary circumstances under Sec. 2429.17 of this 
subchapter have been expressly interpreted to include situations where 
a change in the law affects dispositive issues. See U.S. Department of 
the Air Force, 375th Combat Support Group, Scott Air Force Base, 
Illinois, 50 FLRA 84 (1995). Thus, modification of the existing 
regulation is not necessary.
    The Authority also finds it unnecessary to promulgate a regulation 
requiring it to seek the parties' views whenever a case is remanded to 
the Authority following judicial review. In some cases, for example, 
the remand is solely for the purpose of the Authority taking a 
particular action, such as dismissing a petition for review. See 
National Treasury Employees Union and Nuclear Regulatory Commission, 39 
FLRA 182 (1991) (dismissing petition for review as moot on remand with 
instructions from the U.S. Court of Appeals for the Fourth Circuit). In 
such cases, requiring the Authority to obtain party views would 
unnecessarily lengthen the time necessary to resolve the dispute. 
Nevertheless, parties are not precluded from seeking permission from 
the Authority in any case to file an additional submission under 
Sec. 2424.27.
    Similarly, neither OPM nor any other Federal agency is precluded in 
any way from seeking to participate in any pending case as amicus 
curiae under Sec. 2424.9 of this subchapter. In addition, the Authority 
requests advisory opinions as it deems appropriate under Sec. 2429.15 
of this subchapter. See, e.g., American Federation of Government 
Employees, Local 2986 and U.S. Department of Defense, National Guard 
Bureau, The Adjutant General, State of Oregon, 51 FLRA 1549 (1996) 
(Authority requested OPM views on interpretation of certain statutory 
and regulatory provisions and provided parties opportunity to respond 
to OPM's views); National Association of Agriculture Employees and U.S. 
Department of Agriculture, Animal and Plant Health Inspection Service, 
Plant Protection and Quarantine, 51 FLRA 843 ( 1996) (same). As it is 
not apparent that, or how, these existing regulations are not 
sufficient to permit OPM and others to participate in Authority 
proceedings, the Authority declines to modify them or to create a 
separate regulatory requirement for intervention.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Authority has determined that these regulations, as 
amended, will not have a significant impact on a substantial number of 
small entities, because this rule applies to federal employees, federal 
agencies, and labor organizations representing federal employees.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

    The amended regulations contain no additional information 
collection or recordkeeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Part 2424

    Administrative practice and procedure, Government employees, Labor 
management relations.
    For the reasons set forth in the preamble, the Federal Labor 
Relations Authority revises 5 CFR Part 2424 to read as follows:

PART 2424--NEGOTIABILITY PROCEEDINGS

Subpart A--Applicability of This Part and Definitions

Sec.
2424.1  Applicability of this part.
2424.2  Definitions.
2424.3-2424.9  [Reserved]

[[Page 66414]]

Subpart B--Alternative Dispute Resolution; Requesting and Providing 
Allegations Concerning the Duty to Bargain

2424.10  Collaboration and Alternative Dispute Resolution Program.
2424.11  Requesting and providing allegations concerning the duty to 
bargain.
2424.12-2424.19  [Reserved]

Subpart C--Filing and Responding to a Petition for Review; Conferences

2424.20  Who may file a petition for review.
2424.21  Time limits for filing a petition for review.
2424.22  Exclusive representative's petition for review; purpose; 
content; severance; service.
2424.23  Post-petition conferences; conduct and record.
2424.24  Agency's statement of position; purpose; time limits; 
content; severance; service.
2424.25  Response of the exclusive representative; purpose; time 
limits; content; severance; service.
2424.26  Agency's reply; purpose; time limits; content; service.
2424.27  Additional submissions to the Authority.
2424.28-2424.29  [Reserved]

Subpart D--Processing a Petition for Review

2424.30  Procedure through which the petition for review will be 
resolved.
2424.31  Resolution of disputed issues of material fact; hearings.
2424.32  Parties' responsibilities; failure to raise, support, and/
or respond to arguments; failure to participate in conferences and/
or respond to Authority orders.
2424.33-2424.39  [Reserved]

Subpart E--Decision and Order

2424.40  Authority decision and order.
2424.41  Compliance.
2424.42-2424.49  [Reserved]

Subpart F--Criteria for Determining Compelling Need for Agency Rules 
and Regulations

2424.50  Illustrative Criteria.
2424.51-2424.59  [Reserved]

    Authority: 5 U.S.C. 7134.

Subpart A--Applicability of This Part and Definitions


Sec. 2424.1  Applicability of this part.

    This part is applicable to all petitions for review filed after 
April 1, 1999.


Sec. 2424.2  Definitions.

    In this part, the following definitions apply:
    (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. 
Examples of bargaining obligation disputes include disagreements 
between an exclusive representative and an agency concerning agency 
claims that:
    (1) A proposal concerns a matter that is covered by a collective 
bargaining agreement; and
    (2) Bargaining is not required over a change in bargaining unit 
employees' conditions of employment because the effect of the change is 
de minimis.
    (b) Collaboration and Alternative Dispute Resolution Program refers 
to the Federal Labor Relations Authority's program that assists parties 
in reaching agreements to resolve disputes.
    (c) Negotiability dispute means a disagreement between an exclusive 
representative and an agency concerning the legality of a proposal or 
provision. A negotiability dispute exists when an exclusive 
representative disagrees with an agency contention that (without regard 
to any bargaining obligation dispute) a proposal is outside the duty to 
bargain, including disagreement with an agency contention that a 
proposal is bargainable only at its election. A negotiability dispute 
also exists when an exclusive representative disagrees with an agency 
head's disapproval of a provision as contrary to law. A negotiability 
dispute may exist where there is no bargaining obligation dispute. 
Examples of negotiability disputes include disagreements between an 
exclusive representative and an agency concerning whether a proposal or 
provision:
    (1) Affects a management right under 5 U.S.C. 7106(a);
    (2) Constitutes a procedure or appropriate arrangement, within the 
meaning of 5 U.S.C. 7106(b)(2) and (3), respectively; and
    (3) Is consistent with a Government-wide regulation.
    (d) Petition for review means an appeal filed with the Authority by 
an exclusive representative requesting resolution of a negotiability 
dispute. An appeal that concerns only a bargaining obligation dispute 
may not be resolved under this part.
    (e) Proposal means any matter offered for bargaining that has not 
been agreed to by the parties. If a petition for review concerns more 
than one proposal, then the term includes each proposal concerned.
    (f) Provision means any matter that has been disapproved by the 
agency head on review pursuant to 5 U.S.C. 7114(c). If a petition for 
review concerns more than one provision, then the term includes each 
provision concerned.
    (g) Service means the delivery of copies of documents filed with 
the Authority to the other party's principal bargaining representative 
and, in the case of an exclusive representative, also to the head of 
the agency. Compliance with part 2429 of this subchapter is required.
    (h) Severance means the division of a proposal or provision into 
separate parts having independent meaning, for the purpose of 
determining whether any of the separate parts is within the duty to 
bargain or is contrary to law. In effect, severance results in the 
creation of separate proposals or provisions. Severance applies when 
some parts of the proposal or provision are determined to be outside 
the duty to bargain or contrary to law.
    (i) Written allegation concerning the duty to bargain means an 
agency allegation that the duty to bargain in good faith does not 
extend to a proposal.


Sec. 2424.3 -2424.9  [Reserved]

Subpart B--Alternative Dispute Resolution; Requesting and Providing 
Allegations Concerning the Duty To Bargain


Sec. 2424.10  Collaboration and Alternative Dispute Resolution Program.

    Where an exclusive representative and an agency are unable to 
resolve disputes that arise under this part, they may request 
assistance from the Collaboration and Alternative Dispute Resolution 
Program (CADR). Upon request, and as agreed upon by the parties, CADR 
representatives will attempt to assist the parties to resolve these 
disputes. Parties seeking information or assistance under this part may 
call or write the CADR Office at (202) 482-6503, 607 14th Street, NW., 
Washington, D.C. 20424-001. A brief summary of CADR activities is 
available on the Internet at www.flra.gov.


Sec. 2424.11  Requesting and providing written allegations concerning 
the duty to bargain.

    (a) General. An exclusive representative may file a petition for 
review after receiving a written allegation concerning the duty to 
bargain from the agency. An exclusive representative also may file a 
petition for review if it requests that the agency provide it with a 
written allegation concerning the duty to bargain and the agency does 
not respond to the request within ten (10) days.
    (b) Agency allegation in response to request. The agency's 
allegation in response to the exclusive representative's request must 
be in writing and must be served in accord with Sec. 2424.2(g).
    (c) Unrequested agency allegation. If an agency provides an 
exclusive

[[Page 66415]]

representative with an unrequested written allegation concerning the 
duty to bargain, then the exclusive representative may either file a 
petition for review under this part, or continue to bargain and 
subsequently request in writing a written allegation concerning the 
duty to bargain, if necessary.


Secs. 2424.12-2424.19  [Reserved]

Subpart C--Filing and Responding to a Petition for Review; 
Conferences


Sec. 2424.20  Who may file a petition for review.

    A petition for review may be filed by an exclusive representative 
that is a party to the negotiations.


Sec. 2424.21  Time limits for filing a petition for review.

    (a) A petition for review must be filed within fifteen (15) days 
after the date of service of either:
    (1) An agency's written allegation that the exclusive 
representative's proposal is not within the duty to bargain, or
    (2) An agency head's disapproval of a provision.
    (b) If the agency has not served a written allegation on the 
exclusive representative within ten (10) days after the agency's 
principal bargaining representative has received a written request for 
such allegation, as provided in Sec. 2424.11(a), then the petition may 
be filed at any time.


Sec. 2424.22  Exclusive representative's petition for review; purpose; 
content; severance; service.

    (a) Purpose. The purpose of a petition for review is to initiate a 
negotiability proceeding and provide the agency with notice that the 
exclusive representative requests a decision from the Authority that a 
proposal or provision is within the duty to bargain or not contrary to 
law, respectively. As more fully explained in paragraph (b) of this 
section, the exclusive representative is required in the petition for 
review to, among other things, inform the Authority of the exact 
wording and meaning of the proposal or provision as well as how it is 
intended to operate, explain technical or unusual terms, and provide 
copies of materials that support the exclusive representative's 
position.
    (b) Content. A petition for review must be filed on a form provided 
by the Authority for that purpose, or in a substantially similar 
format. It must be dated and include the following:
    (1) The exact wording and explanation of the meaning of the 
proposal or provision, including an explanation of special terms or 
phrases, technical language, or other words that are not in common 
usage, as well as how the proposal or provision is intended to work;
    (2) Specific citation to any law, rule, regulation, section of a 
collective bargaining agreement, or other authority relied on by the 
exclusive representative in its argument or referenced in the proposal 
or provision, and a copy of any such material that is not easily 
available to the Authority;
    (3) A statement as to whether the proposal or provision is also 
involved in an unfair labor practice charge under part 2423 of this 
subchapter, a grievance pursuant to the parties' negotiated grievance 
procedure, or an impasse procedure under part 2470 of this subchapter, 
and whether any other petition for review has been filed concerning a 
proposal or provision arising from the same bargaining or the same 
agency head review;
    (4) Any request for a hearing before the Authority and the reasons 
supporting such request; and
    (5) A table of contents and a table of legal authorities cited, if 
the petition exceeds 25 double-spaced pages in length.
    (c) Severance. The exclusive representative may, but is not 
required to, include in the petition for review a statement as to 
whether it requests severance of a proposal or provision. If severance 
is requested in the petition for review, then the exclusive 
representative must support its request with an explanation of how each 
severed portion of the proposal or provision may stand alone, and how 
such severed portion would operate. The explanation and argument in 
support of the severed portion(s) must meet the same requirements for 
information set forth in paragraph (b) of this section.
    (d) Service. The petition for review, including all attachments, 
must be served in accord with Sec. 2424.2(g).


Sec. 2424.23  Post-petition conferences; conduct and record.

    (a) Timing of post-petition conference. On receipt of a petition 
for review involving a proposal or a provision, a representative of the 
FLRA will, where appropriate, schedule a post-petition conference to be 
conducted by telephone or in person. All reasonable efforts will be 
made to schedule and conduct the conference within ten (10) days after 
receipt of the petition for review.
    (b) Conduct of conference. The post-petition conference will be 
conducted with representatives of the exclusive representative and the 
agency, who must be prepared and authorized to discuss, clarify and 
resolve matters including the following:
    (1) The meaning of the proposal or provision in dispute;
    (2) Any disputed factual issue(s);
    (3) Negotiability dispute objections and bargaining obligation 
claims regarding the proposal or provision;
    (4) Whether the proposal or provision is also involved in an unfair 
labor practice charge under part 2423 of this subchapter, in a 
grievance under the parties' negotiated grievance procedure, or an 
impasse procedure under part 2470 of this subchapter; and
    (5) Whether an extension of the time limits for filing the agency's 
statement of position and any subsequent filings is requested. The FLRA 
representative may, on determining that it will effectuate the purposes 
of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 
7101 et seq., and this part, extend such time limits.
    (c) Record of the conference. At the post-petition conference, or 
after it has been completed, the representative of the FLRA will 
prepare and serve on the parties a written statement that includes 
whether the parties agree on the meaning of the disputed proposal or 
provision, the resolution of any disputed factual issues, and any other 
appropriate matters.


Sec. 2424.24  Agency's statement of position; purpose; time limits; 
content; severance; service.

    (a) Purpose. The purpose of an agency statement of position is to 
inform the Authority and the exclusive representative why a proposal or 
provision is not within the duty to bargain or contrary to law, 
respectively. As more fully explained in paragraph (c) of this section, 
the agency is required in the statement of position to, among other 
things, set forth its understanding of the proposal or provision, state 
any disagreement with the facts, arguments, or meaning of the proposal 
or provision set forth in the exclusive representative's petition for 
review, and supply all arguments and authorities in support of its 
position.
    (b) Time limit for filing. Unless the time limit for filing has 
been extended pursuant to Sec. 2424.23 or part 2429 of this subchapter, 
the agency must file its statement of position within thirty (30) days 
after the date the head of the agency receives a copy of the petition 
for review.
    (c) Content. The agency's statement of position must be on a form 
provided by the Authority for that purpose, or in a substantially 
similar format. It must be dated and must:
    (1) Withdraw either:

[[Page 66416]]

    (i) The allegation that the duty to bargain in good faith does not 
extend to the exclusive representative's proposal, or
    (ii) The disapproval of the provision under 5 U.S.C. 7114(c); or
    (2) Set forth in full the agency's position on any matters relevant 
to the petition that it wishes the Authority to consider in reaching 
its decision, including a statement of the arguments and authorities 
supporting any bargaining obligation or negotiability claims, any 
disagreement with claims made by the exclusive representative in the 
petition for review, specific citation to any law, rule, regulation, 
section of a collective bargaining agreement, or other authority relied 
on by the agency, and a copy of any such material that is not easily 
available to the Authority. The statement of position must also include 
the following:
    (i) If different from the exclusive representative's position, an 
explanation of the meaning the agency attributes to the proposal or 
provision and the reasons for disagreeing with the exclusive 
representative's explanation of meaning;
    (ii) If different from the exclusive representative's position, an 
explanation of how the proposal or provision would work, and the 
reasons for disagreeing with the exclusive representative's 
explanation;
    (3) A statement as to whether the proposal or provision is also 
involved in an unfair labor practice charge under part 2423 of this 
subchapter, a grievance pursuant to the parties' negotiated grievance 
procedure, or an impasse procedure under part 2470 of this subchapter, 
and whether any other petition for review has been filed concerning a 
proposal or provision arising from the same bargaining or the same 
agency head review;
    (4) Any request for a hearing before the Authority and the reasons 
supporting such request; and
    (5) A table of contents and a table of legal authorities cited, if 
the statement of position exceeds 25 double-spaced pages in length.
    (d) Severance. If the exclusive representative has requested 
severance in the petition for review, and if the agency opposes the 
exclusive representative's request for severance, then the agency must 
explain with specificity why severance is not appropriate.
    (e) Service. A copy of the agency's statement of position, 
including all attachments, must be served in accord with 
Sec. 2424.2(g).


Sec. 2424.25  Response of the exclusive representative; purpose; time 
limits; content; severance; service.

    (a) Purpose. The purpose of the exclusive representative's response 
is to inform the Authority and the agency why, despite the agency's 
arguments in its statement of position, the proposal or provision is 
within the duty to bargain or not contrary to law, respectively, and 
whether the union disagrees with any facts or arguments in the agency's 
statement of position. As more fully explained in paragraph (c) of this 
section, the exclusive representative is required in its response to, 
among other things, state why the proposal or provision does not 
conflict with any law, or why it falls within an exception to 
management rights, including permissive subjects under 5 U.S.C. 
7106(b)(1), and procedures and appropriate arrangements under section 
7106(b) (2) and (3). Another purpose of the response is to permit the 
exclusive representative to request the Authority to sever portions of 
the proposal or provision and to explain why and how it can be done.
    (b) Time limit for filing. Unless the time limit for filing has 
been extended pursuant to Sec. 2424.23 or part 2429 of this subchapter, 
within fifteen (15) days after the date the exclusive representative 
receives a copy of an agency's statement of position, the exclusive 
representative must file a response.
    (c) Content. The response must be on a form provided by the 
Authority for that purpose, or in a substantially similar format. With 
the exception of a request for severance pursuant to paragraph (d) of 
this section, the exclusive representative's response is specifically 
limited to the matters raised in the agency's statement of position. 
The response must be dated and must include the following:
    (1) Any disagreement with the agency's bargaining obligation or 
negotiability claims. The exclusive representative must state the 
arguments and authorities supporting its opposition to any agency 
argument, and must include specific citation to any law, rule, 
regulation, section of a collective bargaining agreement, or other 
authority relied on by the exclusive representative, and provide a copy 
of any such material that is not easily available to the Authority. The 
exclusive representative is not required to repeat arguments made in 
the petition for review. If not included in the petition for review, 
the exclusive representative must state the arguments and authorities 
supporting any assertion that the proposal or provision does not affect 
a management right under 5 U.S.C. 7106(a), and any assertion that an 
exception to management rights applies, including:
    (i) Whether and why the proposal or provision concerns a matter 
negotiable at the election of the agency under 5 U.S.C. 7106(b)(1);
    (ii) Whether and why the proposal or provision constitutes a 
negotiable procedure as set forth in 5 U.S.C. 7106(b)(2);
    (iii) Whether and why the proposal or provision constitutes an 
appropriate arrangement as set forth in 5 U.S.C. 7106(b)(3); and
    (iv) Whether and why the proposal or provision enforces an 
``applicable law,'' within the meaning of 5 U.S.C. 7106(a)(2).
    (2) Any allegation that agency rules or regulations relied on in 
the agency's statement of position violate applicable law, rule, 
regulation or appropriate authority outside the agency; that the rules 
or regulations were not issued by the agency or by any primary national 
subdivision of the agency, or otherwise are not applicable to bar 
negotiations under 5 U.S.C. 7117(a)(3); or that no compelling need 
exists for the rules or regulations to bar negotiations.
    (3) A table of contents and a table of legal authorities cited if 
the response to an agency statement of position exceeds 25 double-
spaced pages in length.
    (d) Severance. If not requested in the petition for review, or if 
the exclusive representative wishes to modify the request in the 
petition for review, the exclusive representative may request severance 
in its response. The exclusive representative must support its request 
with an explanation of how the severed portion(s) of the proposal or 
provision may stand alone, and how such severed portion(s) would 
operate. The exclusive representative also must respond to any agency 
arguments regarding severance made in the agency's statement of 
position. The explanation and argument in support of the severed 
portion(s) must meet the same requirements for specific information set 
forth in paragraph (c) of this section.
    (e) Service. A copy of the response of the exclusive 
representative, including all attachments, must be served in accord 
with Sec. 2424.2(g).


Sec. 2424.26  Agency's reply; purpose; time limits; content; service.

    (a) Purpose. The purpose of the agency's reply is to inform the 
Authority and the exclusive representative whether and why it disagrees 
with any facts or arguments made for the first time in the exclusive 
representative's response. As more fully explained in

[[Page 66417]]

paragraph (c) of this section, the Agency is required in the reply to, 
among other things, provide the reasons why the proposal or provision 
does not fit within any exceptions to management rights that were 
asserted by the exclusive representative in its response, and to 
explain why severance of the proposal or provision is not appropriate.
    (b) Time limit for filing. Unless the time limit for filing has 
been extended pursuant to Sec. 2424.23 or part 2429 of this subchapter, 
within fifteen (15) days after the date the agency receives a copy of 
the exclusive representative's response to the agency's statement of 
position, the agency may file a reply.
    (c) Content. The reply must be on a form provided by the Authority 
for that purpose, or in a substantially similar format. The agency's 
reply is specifically limited to the matters raised for the first time 
in the exclusive representative's response. The agency's reply must 
state the arguments and authorities supporting its reply, cite with 
specificity any law, rule, regulation, section of a collective 
bargaining agreement, or other authority relied on, and provide a copy 
of any material that is not easily available to the Authority. The 
agency is not required to repeat arguments made in its statement of 
position. The agency's reply must be dated and must include the 
following:
    (1) Any disagreement with the exclusive representative's assertion 
that an exception to management rights applies, including:
    (i) Whether and why the proposal or provision concerns a matter 
included in section 7106(b)(1) of the Federal Service Labor-Management 
Relations Statute;
    (ii) Whether and why the proposal or provision does not constitute 
a negotiable procedure as set forth in section 7106(b)(2) of the 
Federal Service Labor-Management Relations Statute;
    (iii) Whether and why the proposal or provision does not constitute 
an appropriate arrangement as set forth in section 7106(b)(3) of the 
Federal Service Labor-Management Relations Statute;
    (iv) Whether and why the proposal or provision does not enforce an 
``applicable law,'' within the meaning of section 7106(a)(2) of the 
Federal Service Labor-Management Relations Statute;
    (2) Any arguments in reply to an exclusive representative's 
allegation in its response that agency rules or regulations relied on 
in the agency's statement of position violate applicable law, rule, 
regulation or appropriate authority outside the agency; that the rules 
or regulations were not issued by the agency or by any primary national 
subdivision of the agency, or otherwise are not applicable to bar 
negotiations under 5 U.S.C. 7117(a)(3); or that no compelling need 
exists for the rules or regulations to bar negotiations; and
    (3) A table of contents and a table of legal authorities cited, if 
the agency's reply to an exclusive representative's response exceeds 25 
double-spaced pages in length.
    (d) Severance. If the exclusive representative requests severance 
for the first time in its response, or if the request for severance in 
an exclusive representative's response differs from the request in its 
petition for review, and if the agency opposes the exclusive 
representative's request for severance, then the agency must explain 
with specificity why severance is not appropriate.
    (e) Service. A copy of the agency's reply, including all 
attachments, must be served in accord with Sec. 2424.2(g).


Sec. 2424.27  Additional submissions to the Authority.

    The Authority will not consider any submission filed by any party 
other than those authorized under this part, provided however that the 
Authority may, in its discretion, grant permission to file an 
additional submission based on a written request showing extraordinary 
circumstances by any party. The additional submission must be filed 
either with the written request or no later than five (5) days after 
receipt of the Authority's order granting the request. Any opposition 
to the additional submission must be filed within fifteen (15) days 
after the date of the receipt of the additional submission. All 
documents filed under this section must be served in accord with 
Sec. 2424.2(g).


Sec. 2424.28-2424.29  [Reserved]

Subpart D--Processing a Petition for Review


Sec. 2424.30  Procedure through which the petition for review will be 
resolved.

    (a) Exclusive representative has filed related unfair labor 
practice charge or grievance alleging an unfair labor practice. Except 
for proposals or provisions that are the subject of an agency's 
compelling need claim under 5 U.S.C. 7117(a)(2), where an exclusive 
representative files an unfair labor practice charge pursuant to part 
2423 of this subchapter or a grievance alleging an unfair labor 
practice under the parties' negotiated grievance procedure, and the 
charge or grievance concerns issues directly related to the petition 
for review filed pursuant to this part, the Authority will dismiss the 
petition for review. The dismissal will be without prejudice to the 
right of the exclusive representative to refile the petition for review 
after the unfair labor practice charge or grievance has been resolved 
administratively, including resolution pursuant to an arbitration award 
that has become final and binding. No later than thirty (30) days after 
the date on which the unfair labor practice charge or grievance is 
resolved administratively, the exclusive representative may refile the 
petition for review, and the Authority will determine whether 
resolution of the petition is still required.
    (b) Exclusive representative has not filed related unfair labor 
practice charge or grievance alleging an unfair labor practice. Where 
an exclusive representative files only a petition for review under this 
part, the petition will be processed as follows:
    (1) No bargaining obligation dispute exists. Where there is no 
bargaining obligation dispute, the Authority will resolve the petition 
for review under the procedures of this part.
    (2) A bargaining obligation dispute exists. Where a bargaining 
obligation dispute exists in addition to the negotiability dispute, the 
Authority will inform the exclusive representative of any opportunity 
to file an unfair labor practice charge pursuant to part 2423 of this 
subchapter or a grievance under the parties' negotiated grievance 
procedure and, where the exclusive representative pursues either of 
these courses, proceed in accord with paragraph (a) of this section. If 
the exclusive representative does not file an unfair labor practice 
charge or grievance, the Authority will proceed to resolve all disputes 
necessary for disposition of the petition unless, in its discretion, 
the Authority determines that resolving all disputes is not appropriate 
because, for example, resolution of the bargaining obligation dispute 
under this part would unduly delay resolution of the negotiability 
dispute, or the procedures in another, available administrative forum 
are better suited to resolve the bargaining obligation dispute.


Sec. 2424.31  Resolution of disputed issues of material fact; hearings.

    When necessary to resolve disputed issues of material fact in a 
negotiability or bargaining obligation dispute, or when it would 
otherwise aid in decision making, the Authority, or its designated 
representative, may, as appropriate:
    (a) Direct the parties to provide specific documentary evidence;
    (b) Direct the parties to provide answers to specific factual 
questions;

[[Page 66418]]

    (c) Refer the matter to a hearing pursuant to 5 U.S.C. 7117(b)(3) 
and/or (c)(5); or
    (d) Take any other appropriate action.


Sec. 2424.32  Parties' responsibilities; failure to raise, support, 
and/or respond to arguments; failure to participate in conferences and/
or respond to Authority orders.

    (a) Responsibilities of the exclusive representative. The exclusive 
representative has the burden of raising and supporting arguments that 
the proposal or provision is within the duty to bargain, within the 
duty to bargain at the agency's election, or not contrary to law, 
respectively, and, where applicable, why severance is appropriate.
    (b) Responsibilities of the agency. The agency has the burden of 
raising and supporting arguments that the proposal or provision is 
outside the duty to bargain or contrary to law, respectively, and, 
where applicable, why severance is not appropriate.
    (c) Failure to raise, support, and respond to arguments. (1) 
Failure to raise and support an argument will, where appropriate, be 
deemed a waiver of such argument. Absent good cause:
    (i) Arguments that could have been but were not raised by an 
exclusive representative in the petition for review, or made in its 
response to the agency's statement of position, may not be made in this 
or any other proceeding; and
    (ii) Arguments that could have been but were not raised by an 
agency in the statement of position, or made in its reply to the 
exclusive representative's response, may not be raised in this or any 
other proceeding.
    (2) Failure to respond to an argument or assertion raised by the 
other party will, where appropriate, be deemed a concession to such 
argument or assertion.
    (d) Failure to participate in conferences; failure to respond to 
Authority orders. Where a party fails to participate in a post-petition 
conference pursuant to Sec. 2424.23, a direction or proceeding under 
Sec. 2424.31, or otherwise fails to provide timely or responsive 
information pursuant to an Authority order, including an Authority 
procedural order directing the correction of technical deficiencies in 
filing, the Authority may, in addition to those actions set forth in 
paragraph (c) of this section, take any other action that, in the 
Authority's discretion, is deemed appropriate, including dismissal of 
the petition for review, with or without prejudice to the exclusive 
representative's refiling of the petition for review, and granting the 
petition for review and directing bargaining and/or rescission of an 
agency head disapproval under 5 U.S.C. 7114(c), with or without 
conditions.


Sec. 2424.33--2424.39  [Reserved]

Subpart E--Decision and Order


Sec. 2424.40  Authority decision and order.

    (a) Issuance. Subject to the requirements of this part, the 
Authority will expedite proceedings under this part to the extent 
practicable and will issue to the exclusive representative and to the 
agency a written decision, explaining the specific reasons for the 
decision, at the earliest practicable date. The decision will include 
an order, as provided in paragraphs (b) and (c) of this section, but, 
with the exception of an order to bargain, such order will not include 
remedies that could be obtained in an unfair labor practice proceeding 
under 5 U.S.C. 7118(a)(7).
    (b) Cases involving proposals. If the Authority finds that the duty 
to bargain extends to the proposal, or any severable part of the 
proposal, then the Authority will order the agency to bargain on 
request concerning the proposal. If the Authority finds that the duty 
to bargain does not extend to the proposal, then the Authority will 
dismiss the petition for review. If the Authority finds that the 
proposal is bargainable only at the election of the agency, then the 
Authority will so state. If the Authority resolves a negotiability 
dispute by finding that a proposal is within the duty to bargain, but 
there are unresolved bargaining obligation dispute claims, then the 
Authority will order the agency to bargain on request in the event its 
bargaining obligation claims are resolved in a manner that requires 
bargaining.
    (c) Cases involving provisions. If the Authority finds that a 
provision, or any severable part thereof, is not contrary to law, rule 
or regulation, or is bargainable at the election of the agency, the 
Authority will direct the agency to rescind its disapproval of such 
provision in whole or in part as appropriate. If the Authority finds 
that a provision is contrary to law, rule, or regulation, the Authority 
will dismiss the petition for review as to that provision.


Sec. 2424.41  Compliance.

    The exclusive representative may report to the appropriate Regional 
Director an agency's failure to comply with an order, issued in 
accordance with Sec. 2424.40, that the agency must upon request (or as 
otherwise agreed to by the parties) bargain concerning the proposal or 
that the agency must rescind its disapproval of a provision. The 
exclusive representative must report such failure within a reasonable 
period of time following expiration of the 60-day period under 5 U.S.C. 
7123(a), which begins on the date of issuance of the Authority order. 
If, on referral from the Regional Director, the Authority finds such a 
failure to comply with its order, the Authority will take whatever 
action it deems necessary to secure compliance with its order, 
including enforcement under 5 U.S.C. 7123(b).


Secs. 2424.42--2424.49  [Reserved]

Subpart F--Criteria for Determining Compelling Need for Agency 
Rules and Regulations


Sec. 2424.50  Illustrative criteria.

    A compelling need exists for an agency rule or regulation 
concerning any condition of employment when the agency demonstrates 
that the rule or regulation meets one or more of the following 
illustrative criteria:
    (a) The rule or regulation is essential, as distinguished from 
helpful or desirable, to the accomplishment of the mission or the 
execution of functions of the agency or primary national subdivision in 
a manner that is consistent with the requirements of an effective and 
efficient government.
    (b) The rule or regulation is necessary to ensure the maintenance 
of basic merit principles.
    (c) The rule or regulation implements a mandate to the agency or 
primary national subdivision under law or other outside authority, 
which implementation is essentially nondiscretionary in nature.


Secs. 2424.51--2424.59  [Reserved]

    Dated: November 25, 1998.
Solly Thomas,
Executive Director, Federal Labor Relations Authority.
[FR Doc. 98-31970 Filed 12-1-98; 8:45 am]
BILLING CODE 6727-01-P