[Federal Register Volume 85, Number 15 (Thursday, January 23, 2020)]
[Proposed Rules]
[Pages 3858-3859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01007]
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2427
[FLRA Docket No. 0-PS-46]
Notice of Opportunity To Comment on a Request for a General
Statement of Policy or Guidance on Agency-Head Review of Agreements
That Continue in Force Until New Agreements Are Reached
AGENCY: Federal Labor Relations Authority.
ACTION: Proposed issuance of a general statement of policy or guidance.
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SUMMARY: The Federal Labor Relations Authority (Authority) solicits
written comments on a request from the U.S. Department of Agriculture
(USDA) for a general statement of policy or guidance (general
statement) concerning expiring collective-bargaining agreements that
state that they will remain in force until the parties reach new
agreements. USDA asks for a general statement holding that, if an
expiring agreement continues in force during renegotiations, then an
agency head may review the legality of the expiring agreement as early
as the agency head could review an expiring agreement that was renewed
automatically for a fixed term. Comments are solicited on whether the
Authority should issue a general statement, and, if so, what the
Authority's policy or guidance should be.
DATES: To be considered, comments must be received on or before
February 24, 2020.
ADDRESSES: You may send comments, which must include the caption ``USDA
(Petitioner), Case No. 0-PS-46,'' by one of the following methods:
Email: [email protected]. Include ``USDA
(Petitioner), Case No. 0-PS-46'' in the subject line of the message.
Mail or Hand Delivery: Emily Sloop, Chief, Case Intake and
Publication, Federal Labor Relations Authority, Docket Room, Suite 200,
1400 K Street NW, Washington, DC 20424-0001.
Instructions: Do not mail or hand deliver written comments if they
have been submitted via email. Interested persons who mail or hand
deliver written comments must submit an original and 4 copies of each
written comment, with any enclosures, on 8\1/2\ x 11 inch paper.
FOR FURTHER INFORMATION CONTACT: Emily Sloop, Chief, Case Intake and
Publication, Federal Labor Relations Authority, (202) 218-7740.
[[Page 3859]]
SUPPLEMENTARY INFORMATION: In Case No. 0-PS-46, USDA requests that the
Authority issue a general statement concerning agency-head review of
expiring collective-bargaining agreements that state that they will
remain in force until the parties reach new agreements. Interested
persons are invited to express their views in writing as to whether the
Authority should issue a general statement and, if it does, what the
Authority's policy or guidance should be.
Proposed Guidance
To Heads of Agencies, Presidents of Labor Organizations, and Other
Interested Persons:
USDA has requested, under Section 2427.2(a) of the Authority's
rules and regulations (5 CFR 2427.2(a)), that the Authority issue a
general statement of policy or guidance addressing when an agency head
may, under Section 7114(c) of the Federal Service Labor-Management
Relations Statute (the Statute), review the legality of an expiring
collective-bargaining agreement that continues in force during
renegotiations. Section 7114(c)(1) of the Statute states that ``[a]n
agreement between any agency and an exclusive representative shall be
subject to approval by the head of the agency,'' and Section 7114(c)(2)
states, in pertinent part, that ``[t]he head of the agency shall
approve the agreement within [thirty] days from the date the agreement
is executed if the agreement is in accordance with the provisions of
[the Statute] and any other applicable law, rule, or regulation.''
A different provision of the Statute--Section 7116(a)(7)--makes it
an unfair labor practice for an agency ``to enforce any rule or
regulation (other than a rule or regulation implementing'' 5 U.S.C.
2302, which concerns prohibited personnel practices) that ``is in
conflict with any applicable collective[-] bargaining agreement if the
agreement was in effect before the date the rule or regulation was
prescribed.'' In other words, in most cases, if rules or regulations
change while an agreement is in effect, and the changes conflict with
that agreement, then Section 7116(a)(7) forbids an agency from
enforcing those changes until the agreement is no longer in effect. But
if such changes concern rules or regulations that implement the ban on
prohibited personnel practices, then an agency may enforce those
changes immediately, even if they conflict with a preexisting
agreement.
The Authority has previously addressed how to apply Sections
7114(c) and 7116(a)(7) in cases where parties specify that, unless one
or both of them request to renegotiate an expiring agreement, the
agreement will be automatically renewed (or rolled over) for another
term at the end of its current term. In such cases, the Authority has
held that an automatically renewed agreement is subject to agency-head
review under Section 7114(c), and that the automatically renewed
agreement must comply with any government-wide rules or regulations
that changed during the agreement's previous term. Kan. Army Nat'l
Guard, Topeka, Kan., 47 FLRA 937, 942 (1993). The Authority has also
clarified that, in the context of automatically renewed agreements, the
thirty-day period for agency-head review under Section 7114(c) begins
``the day after the expiration of the contractual window period for
requesting renegotiation of the expiring agreement.'' Id. at 943.
USDA asks that the Authority clarify when an agency head may review
the legality of an expiring agreement that includes a provision stating
that, where renegotiations are requested, the existing agreement
continues in force until the parties reach a new one (a continuance
provision). Citing the Authority's decision in U.S. Department of the
Army, Headquarters III Corps & Fort Hood, Fort Hood, Texas, 40 FLRA 636
(1991) (Ford Hood), USDA asserts that some arbitrators interpret
continuance provisions to mean that, once renegotiations are requested,
the existing agreement does not expire until renegotiations are
complete, even if the agreement specifies an expiration date that
passes during renegotiations. According to USDA, the consequence of
such an interpretation is that, under Sec. 7116(a)(7) of the Statute,
for as long as the parties' renegotiations take, an agency may not
enforce rule or regulation changes that occurred during the agreement's
originally specified term. USDA asserts that a continuance provision
that is interpreted in this manner is unjust because an agency that
allows automatic renewal can enforce rule and regulation changes much
earlier than an agency that requests renegotiations.
By contrast, citing the Authority's decision in U.S. Department of
Commerce, Patent & Trademark Office, 65 FLRA 817 (2011) (Commerce),
USDA asserts that other arbitrators interpret continuance provisions to
mean that, even when renegotiations are requested, an agreement expires
on the date that the parties originally specified, but the continuance
provision causes the expired agreement to renew automatically for an
additional term that lasts as long as the parties' renegotiations take.
According to USDA, this interpretation allows an agency to enforce rule
or regulation changes that occurred during the agreement's originally
specified term throughout most, if not all, of the parties'
renegotiations without violating Section 7116(a)(7) of the Statute. But
USDA contends that an agency cannot know in advance whether an
arbitrator will interpret a continuance provision in the manner
discussed in Ford Hood or Commerce. USDA contends that, in order to
avoid violating Section 7116(a)(7), an agency must assume that a
continuance provision will be interpreted like the one in Fort Hood,
thereby preventing the agency from enforcing rule and regulation
changes for an indefinite and unknowable period of time during
renegotiations.
In its request, USDA asks the Authority to issue a general
statement holding that:
1. When a party requests to renegotiate an expiring agreement that
contains a provision stating that the agreement remains in force until
a new agreement is reached, an agency head may review the legality of
the expiring agreement as early as Section 7114(c) of the Statute would
allow the agency head to do so if the expiring agreement were
automatically renewed; and
2. An expiring agreement that remains in force until the parties
reach a new agreement is effectively renewed automatically every day,
so, for as long as the expiring agreement continues in force during
renegotiations, a new agency-head-review period begins each day.
Regarding the matters raised by USDA, the Authority invites written
comments on whether issuance of a general statement of policy or
guidance is warranted, under the standards set forth in Section 2427.5
of the Authority's rules and regulations (5 CFR 2427.5), and, if so,
what the Authority's policy or guidance should be. Written comments
must contain separate, numbered headings for each issue covered.
Dated: January 16, 2020.
Noah Peters,
Solicitor, Federal Labor Relations Authority.
[FR Doc. 2020-01007 Filed 1-22-20; 8:45 am]
BILLING CODE 6727-01-P