[Federal Register Volume 68, Number 116 (Tuesday, June 17, 2003)]
[Notices]
[Pages 35888-35889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15273]


=======================================================================
-----------------------------------------------------------------------

FEDERAL LABOR RELATIONS AUTHORITY

[FLRA Docket No. AT-CA-01-0093]


Notice of Opportunity to Submit Amicus Curiae Briefs in an Unfair 
Labor Practice Proceeding Pending Before the Federal Labor Relations 
Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of the opportunity to file briefs as amici curiae in a 
proceeding before the Federal Labor Relations Authority in which the 
Authority has been asked to modify its standard for determining whether 
an agency has a statutory obligation to notify and bargain with a union 
regarding changes in conditions of employment that are substantively 
negotiable.

-----------------------------------------------------------------------

SUMMARY: The Federal Labor Relations Authority provides an opportunity 
for all interested persons to file briefs as amici curiae on a 
significant issue in a case pending before the Authority. The Authority 
is considering the case pursuant to its responsibilities under the 
Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101-7135 
(the Statute). The issue concerns whether the Authority should modify 
its standard for determining whether an agency has a statutory 
obligation to notify and bargain with a union regarding changes in 
conditions of employment that are substantively negotiable.

DATES: Briefs submitted in response to this notice will be considered 
if received by mail or personal delivery in the Authority's Case 
Control Office by 5 p.m. on Thursday, July 17, 2003. Placing 
submissions in the mail by this deadline will not be sufficient. 
Extensions of time to submit briefs will not be granted.
    FORMAT: All briefs shall be captioned ``Social Security 
Administration, Office of Hearings and Appeals, Charleston, South 
Carolina, Case No. AT-CA-01-0093.'' Parties must submit five copies, 
one of which must contain an original signature, of each amicus brief, 
on 8\1/2\ by 11 inch paper. Briefs must include a signed and dated 
statement of service that complies with the Authority's regulations 
showing service of one copy of the brief on all counsel of record or 
other designated representatives. 5 CFR 2429.27(a) and (c).
    The designated representatives in Social Security Administration, 
Office of Hearings and Appeals, Charleston, South Carolina, Case No. 
AT-CA-01-0093, are John J. Barrett, Agency Representative, Social 
Security Administration, 6401 Security Boulevard, Room G-H-10, West 
High Rise Building, Baltimore, MD 21235-6401; J. E. Van Slate, Union 
Representative, AALJ, IFPTE, c/o Social Security Administration, Office 
of Hearings and Appeals, 200 Meeting Street, Suite 202, Charleston, SC 
29401; Tameka West, Counsel for the General Counsel, Federal Labor 
Relations Authority, Marquis Two Tower, Suite 701, 285 Peachtree Center 
Avenue, Atlanta, GA 30303-1270.

ADDRESSES: Mail or deliver briefs to Gail D. Reinhart, Director, Case 
Control Office, Federal Labor Relations Authority, Docket Room, Suite 
201, 1400 K St. NW., Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Gail D. Reinhart, Director, Case 
Control Office, Federal Labor Relations Authority, (202) 218-7740.

SUPPLEMENTARY INFORMATION: The case presenting the issue on which 
amicus briefs are being solicited is before the Authority on exceptions 
to a recommended decision and order of an

[[Page 35889]]

Administrative Law Judge (Judge) resolving unfair labor practice 
allegations.

A. Summary of Current Authority Precedent

    To assist interested persons in responding, the Authority offers 
the following summary of current Authority precedent. The cases cited 
below are not intended as a complete description of Authority precedent 
in this area, and amici are encouraged to address any federal or 
private sector precedent deemed applicable.
    Under section 7116(a)(1) and (5) of the Statute, prior to 
implementing a change in conditions of employment of bargaining unit 
employees, an agency is required to provide the exclusive 
representative with notice of the change and the opportunity to bargain 
over those aspects of the change that are within the duty to bargain. 
U.S. Army Corps of Eng'rs, Memphis Dist., 53 FLRA 79, 81 (1997). Where 
an agency institutes a change in a condition of employment and the 
change is itself negotiable, the extent of the impact of the change on 
unit employees has not been a factor or element in the analysis of 
whether an agency is obligated to bargain. 92 Bomb Wing, Fairchild Air 
Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995). Conversely, where 
the substance of a change is not itself negotiable, an agency must 
nonetheless give the exclusive representative an opportunity to bargain 
over the impact and implementation of the change, provided that the 
change has more than a de minimis effect on unit employees' conditions 
of employment. AFGE, Local 940, 52 FLRA 1429, 1436 (1997).

B. The Judge's Decision

    The Judge found that the agency violated section 7116(a)(1) and (5) 
of the Statute by refusing to bargain with the Association of 
Administrative Law Judges, International Federation of Professional and 
Technical Engineers, AFL-CIO (Union) over the Agency's reduction in the 
number of reserved parking spaces for the Administrative Law Judges 
(ALJs) from 6 to 2. Relying on Authority precedent, the Judge found 
that providing all 6 ALJs at its Charleston location with reserved, 
assigned parking was a condition of employment, and that the Agency was 
obligated to give the Union notice and an opportunity to negotiate the 
substance of any proposed change of this established condition of 
employment. In addition, the Judge stated that since the issue of 
employee parking is substantively negotiable, it was unnecessary to 
decide whether the impact of the change was more than de minimis. 
However, the Judge noted that if the agency were only obligated to 
bargain over impact and implementation, ``there might be grave doubt 
that the impact was more than de minimis.'' Judge's Decision at 12. The 
Judge found that the record did not show any difficulty by employees 
finding non-reserved parking in the building after the change was 
implemented. As a remedy, the Judge recommended that the agency restore 
the status quo ante by providing 6 reserved parking spaces to the ALJs.

C. Agency's Exceptions

    The Agency filed exceptions, contending in part that the Authority 
should apply the de minimis doctrine that has been used for impact and 
implementation bargaining to changes that are substantively negotiable. 
The Agency asserts that the Authority adopted the de minimis doctrine 
in line with the mandate of section 7101 of the Statute that the 
Statute should be interpreted consistent with the requirement of an 
effective and efficient Government, and that this same mandate should 
apply to substantive as well as impact and implementation bargaining.

D. General Counsel's Opposition

    The General Counsel requests the Authority to reject the Agency's 
request to apply the de minimis standard to substantively negotiable 
issues, such as the one in this case. The General Counsel maintains 
that the Judge's decision is consistent with Authority precedent 
addressing changes in parking as substantively negotiable.

E. Questions on Which Briefs are Solicited

    Since the issue raised by the Agency in this case is likely to be 
of concern to the federal sector labor-management relations community 
in general, the Authority finds it appropriate to provide for the 
filing of amicus briefs addressing the following questions:
    What standard should the Authority apply in determining an agency's 
statutory obligation to bargain when an agency institutes changes in 
conditions of employment that are substantively negotiable? Why? Should 
the Authority eliminate the distinction between substantively 
negotiable changes, where the de minimis standard has not been applied, 
and changes that are not substantively negotiable, where the de minimis 
standard has been applied? Why?

    For the Authority.

    Dated: June 12, 2003.
Gail D. Reinhart,
Director, Case Control Office.
[FR Doc. 03-15273 Filed 6-16-03; 8:45 am]
BILLING CODE 6727-01-P