Negotiability Proceedings

 
CONTENT
Federal Register, Volume 84 Issue 246 (Monday, December 23, 2019)
[Federal Register Volume 84, Number 246 (Monday, December 23, 2019)]
[Proposed Rules]
[Pages 70439-70445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27193]
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Proposed Rules
                                                Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 84, No. 246 / Monday, December 23, 2019 /
Proposed Rules
[[Page 70439]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2424
Negotiability Proceedings
AGENCY: Federal Labor Relations Authority.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Federal Labor Relations Authority (FLRA) intends to revise
the regulations governing negotiability appeals to better ``expedite
proceedings,'' consistent with Congress's direction, and with the
FLRA's goal in its strategic plan to ``ensure quality, timely . . .
decision-making processes.'' The proposed rule is designed to
streamline the adjudication process for negotiability appeals,
resulting in more timely decisions for the parties.
DATES: Written comments must be received on or before January 22, 2020.
ADDRESSES: You may send comments, which must include the caption
``Negotiability Proceedings,'' by one of the following methods:
     Email: [email protected]. Include ``Negotiability
Proceedings'' 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: Please do not email comments if you have mailed or
hand delivered the same comments.
FOR FURTHER INFORMATION CONTACT: Rebecca Osborne, Deputy Solicitor, at
[email protected] or at: (202) 218-7986.
SUPPLEMENTARY INFORMATION:
Background
    The Federal Service Labor-Management Relations Statute (the
Statute) authorizes the FLRA to adjudicate a number of matters related
to federal sector labor-management relations, including negotiability
appeals. Specifically, the Statute provides that ``if an agency
involved in collective bargaining with an exclusive representative
alleges that the duty to bargain in good faith does not extend to any
matter, the exclusive representative may appeal the allegation to the
Authority in accordance with the provisions of this subsection.'' 5
U.S.C. 7117(c)(1). The Statute provides further that ``[t]he Authority
shall expedite proceedings under this subsection to the extent
practicable and shall issue . . . a written decision on the allegation
and specific reasons therefor at the earliest practicable date.'' 5
U.S.C. 7117(c)(6). The proposed changes are intended to allow the
Authority to expedite negotiability appeal proceedings to allow for a
written decision at the earliest practicable date.
Analysis of the Regulations
Section 2424.2 Definitions
    Section 2424.2 clarifies the definition of a ``bargaining
obligation dispute'' and provides an additional example of such a
dispute. The section also changes the definition of Alternative Dispute
Resolution to reflect the current practice. The section adds several
examples of a ``negotiability dispute'' to provide a more complete, but
not necessarily exhaustive, list. The section proposes removing the
definition of ``severance'' because it is unclear whether providing for
severance of a proposal or provision adds value to the adjudicatory
process. Other changes to the regulations will allow for FLRA
consideration of particular matters when those matters are submitted as
distinct proposals or provisions. However, as discussed in connection
with section 2424.22, the Authority is also considering a second option
that would limit the opportunities for severance, rather than
eliminating it completely.
    Section 2424.10 is amended to change the heading to ``Alternative
Dispute Resolution'' and is clarified to explain that the use of
alternative dispute resolution is at the discretion of the FLRA.
    Section 2424.11 is amended so paragraph (a) requires an exclusive
representative to put in writing its request that an agency provide a
written allegation concerning the duty to bargain. Paragraph (b) is
amended to obligate an agency to respond within ten (10) days to an
exclusive representative's written request for a written allegation
concerning the duty to bargain. The section clarifies that if an
exclusive representative chooses to file a petition based on an
unrequested written allegation concerning the duty to bargain, then the
petition must be filed within fifteen (15) days after the date of
service of the unrequested written allegation.
    Section 2424.21 is amended to state that if an agency fails to
respond to a written request for a written allegation within ten (10)
days of the request, then the exclusive representative may file a
petition within the next sixty (60) days. If the agency serves a
written allegation on the exclusive representative more than ten (10)
days after receiving a written request for such allegation, and a
petition has not yet been filed, then the petition must be filed within
fifteen (15) days of the service of that allegation. If the exclusive
representative files a petition after the expiration of the ten (10)
day period, and the agency subsequently serves a written allegation on
the exclusive representative, then the FLRA will consider the appeal
based upon the petition filed prior to the allegation but may allow the
exclusive representative to amend the petition. However, the exclusive
representative may not file an additional petition. The FLRA is seeking
to prevent negotiability disputes from lingering unresolved for a
potentially unlimited period of time, to avoid the inefficiencies of
adjudicating stale disputes, and to reduce the potential surprise of a
negotiability petition being filed long after a written request for an
allegation of nonnegotiability was served. The FLRA seeks comments on
whether the proposed language would meet those objectives, and the FLRA
welcomes comments with alternative proposals to meet those objectives.
    Section 2424.22 adds a new paragraph to allow for division of
matters into proposals or provisions. Although the FLRA is proposing
the revised subsection wording in this notice, the FLRA is also
considering another possible option. It requests comments on the
advantages and disadvantages of both options:
    Option 1. Eliminating severance altogether and replacing it with
the proposed wording in this notice.
[[Page 70440]]
    Option 2. Allowing only one point in the filing process at which an
exclusive representative may request severance. Under this option, the
FLRA seeks comments on: (a) When during the filing process this
opportunity to request severance should occur; and (b) the advantages
and disadvantages of automatically granting all timely severance
requests in order to reduce the burden of litigating and resolving
these requests. If the FLRA were to automatically grant all timely
requests, then: (1) The exclusive representative would bear the burden
of requesting severance in a manner that allowed each severed portion
to stand alone, and the burden of explaining the meaning and operation
of each portion; (2) even if the exclusive representative failed to
meet those burdens, the FLRA would automatically grant severance as
requested; and (3) where the exclusive representative failed to meet
those burdens, after automatically granting severance, the FLRA would
find the severed portions outside the duty to bargain, based on the
failure to provide an adequate record.
    Section 2424.22 also requires greater specificity in what must be
included in a petition and requires the submission of relevant
documents. The section is also amended to require that an exclusive
representative respond in a petition to any specific arguments that are
set forth in an agency's written allegation concerning the duty to
bargain or an agency head's disapproval of an agreement.
    Section 2424.23 is amended to clarify that the decision to hold a
post-petition conference is at the discretion of the FLRA and that,
regardless of whether one does occur, the parties must observe all
filing deadlines. The FLRA seeks comments on the most appropriate
juncture, within the stages of pleading, for the post-petition
conference to occur, in cases where a conference is held. The section
is also amended to clarify that the FLRA may take other appropriate
action, in the exercise of its discretion, to aid in decision making,
regardless of whether a post-petition conference occurs.
    Section 2424.24 clarifies the content of the agency's statement of
position, requires greater specificity about certain matters within the
statement of position, and requires the submission of relevant
documents.
    Section 2424.25 clarifies what is to be included in the exclusive
representative's response and removes surplus language. This section is
amended to limit the content of the response to matters raised for the
first time in the agency's statement of position. Because changes to
section 2424.22 would require the exclusive representative to address,
in its petition, specific arguments in an agency's written allegation
concerning the duty to bargain or an agency head's disapproval of an
agreement, the exclusive representative could not wait until filing its
response under section 2424.25 to address those matters. Any facts or
arguments that should be included in the petition in accordance with
the changes to section 2424.22, but are not included in the petition,
would be barred from consideration in the exclusive representative's
response under section 2424.25.
    Section 2424.26 is amended to shorten the time period for the
agency's submission of a reply to the exclusive representative's
response to ten (10) days and specifies the content to be included. The
section also reorganizes the content requirements.
    Section 2424.27 removes the time period for filing additional
submissions authorized in the discretion of the FLRA. When authorizing
additional submissions, the FLRA will establish the deadline for their
submission.
    Section 2424.30, in paragraph (a), clarifies when the deadline
begins to run for refiling a petition that was previously dismissed
without prejudice by the FLRA in the case of a related grievance that
was administratively resolved. The FLRA requests comments on whether
the proposed clarification accurately captures all of the scenarios
under which a grievance mentioned in this subsection could be
administratively resolved. Subsection (b) of the section clarifies the
process by which the FLRA will resolve matters under various factual
scenarios.
    Section 2424.31 is amended to include a new heading that more
accurately reflects its contents, and to make other minor wording
changes.
    Section 2424.32 is amended to highlight that the parties' failures
to explain their positions thoroughly could lead to an adverse ruling,
and that assessing the consequences of such a failure (e.g., waiver,
concession) is within the discretion of the FLRA.
    Section 2424.40 is amended to make conforming changes to reflect
the proposed removal of severance. The section also proposes altering
the content of an FLRA order where it finds a duty to bargain by
deleting the reference to a ``request'' to bargain concerning the
proposal. The FLRA seeks comments on whether the ``request'' wording
serves a useful purpose. The wording may imply that the burden is on an
exclusive representative to re-start negotiations following a
negotiability decision, and that the agency is not obligated to take
any action until the exclusive representative requests that the agency
do so.
    Section 2424.41 proposes altering the description of noncompliance
with an FLRA order by deleting wording that is already present in
section 2424.40. As with the proposed change to section 2424.40, the
FLRA seeks comments on whether this wording serves a useful purpose or
whether it is duplicative of the wording in 2424.40. In addition, this
section proposes adding a deadline of thirty (30) days for an exclusive
representative to report the failure to comply with an order, following
the expiration of the 60-day period under 5 U.S.C. 7123(a).
    Section 2424.50 is amended to explain the criteria in the section
are illustrative and there may be other, or more appropriate, examples
of an agency rule or regulation for which there is a compelling need.
The FLRA solicits specific examples of an agency rule or regulation for
which there is a compelling need and appropriate illustrative criteria
that would establish a compelling need for the rule or regulation.
Executive Order 12866
    The FLRA is an independent regulatory agency, and as such, is not
subject to the requirements of E.O. 12866.
Executive Order 13132
    The FLRA is an independent regulatory agency, and as such, is not
subject to the requirements of E.O. 13132.
Regulatory Flexibility Act Certification
    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Chairman of the FLRA has determined that this rule,
as amended, will not have a significant impact on a substantial number
of small entities, because this rule applies only to federal agencies,
federal employees, and labor organizations representing those
employees.
Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs
    This proposed rule is not expected to be subject to the
requirements of E.O. 13771 (82 FR 9339, Feb. 3, 2017) because this
proposed rule is expected to be related to agency organization,
management, or personnel.
[[Page 70441]]
Executive Order 13132, Federalism
    This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, this proposed rule does not have sufficient federalism
implications to warrant preparation of a Federalism assessment.
Executive Order 12988, Civil Justice Reform
    This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
    This rule change 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 record-keeping requirements under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501, et seq.
List of Subjects in 5 CFR Part 2424
    Negotiability Proceedings.
Federal Labor Relations Authority.
Rebecca Osborne,
Federal Register Liaison.
    Accordingly, for the reasons stated in the preamble, FLRA proposes
to amend 5 CFR part 2424 as follows:
PART 2424--[AMENDED]
0
1. The authority citation for part 2424 continues to read as follows:
    Authority:  5 U.S.C. 7134.
0
2. Revise Section 2424.1 to read as follows:
Sec.  2424.1  Applicability of this part.
    This part applies to all petitions for review filed on or after
[DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER].
0
3. Amend Sec.  2424.2 by:
0
a. Revising paragraphs (a), (b), (c)(2) and (c)(3);
0
b. Adding paragraphs (c)(4) through (8); and
0
c. Revising paragraphs (e) and (f);
0
d. Removing paragraph (h);
0
e. Redesignating paragraph (i) as (h); and
0
f. Revising newly redesignated paragraph (h).
    The revisions and additions to read as follows:
Sec.  2424.2  Definitions.
* * * * *
    (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 by law 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;
    (2) Bargaining is not required because there has not been a change
in bargaining unit employees' conditions of employment; and
    (3) The exclusive representative is attempting to bargain at the
wrong level of the agency.
    (b) Alternative Dispute Resolution refers to the Federal Labor
Relations Authority's efforts to assist parties in reaching agreements
to resolve disputes.
    (c) * * *
    (2) Directly affects bargaining-unit employees' conditions of
employment;
    (3) Enforces an ``applicable law,'' within the meaning of 5 U.S.C.
7106(a)(2);
    (4) Concerns a matter negotiable at the election of the agency
under 5 U.S.C. 7106(b)(1);
    (5) Constitutes a ``procedure'' or ``appropriate arrangement''
within the meaning of 5 U.S.C. 7106(b)(2) and (3), respectively;
    (6) Is consistent with an Executive Order;
    (7) Is consistent with a Government-wide rule or regulation; and
    (8) Is negotiable notwithstanding agency rules or regulations
because:
    (i) The proposal or provision is consistent with agency rules or
regulations for which a compelling need exists under 5 U.S.C.
7117(a)(2);
    (ii) The agency rules or regulations violate applicable law, rule,
regulation, or appropriate authority outside the agency;
    (iii) The agency rules or regulations were not issued by the agency
or by any primary national subdivision of the agency;
    (iv) The exclusive representative represents an appropriate unit
including not less than a majority of the employees in the rule- or
regulation-issuing agency or primary national subdivision; or
    (v) No compelling need exists for the rules or regulations to bar
negotiations.
* * * * *
    (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 ``proposal'' 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 ``provision''
includes each provision concerned.
* * * * *
    (h) 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.
0
4. Revise Sec.  2424.10 to read as follows:
Sec.  2424.10  Alternative Dispute Resolution.
    Where an exclusive representative and an agency are unable to
resolve disputes that arise under this part, they may request that the
Office of Case Intake and Publication refer them to alternative dispute
resolution. As resources permit, and in the discretion of the
Authority, the FLRA may attempt to assist the parties to resolve these
disputes. Parties seeking information or assistance under this part may
call or write the Office of Case Intake and Publication at (202) 218-
7740, 1400 K Street NW, Washington, DC 20424-0001.
0
5. Revise Sec.  2424.11 to read as follows:
Sec.  2424.11  Requesting and providing written allegations concerning
the duty to bargain.
    (a) General. An exclusive representative may file a petition for
[[Page 70442]]
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 in writing 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 has an
obligation to respond within ten (10) days to a written request by the
exclusive representative for a written allegation concerning the duty
to bargain. The agency's allegation in response to the exclusive
representative's request response 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 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. If the exclusive
representative chooses to file a petition for review based on an
unrequested written allegation concerning the duty to bargain, then the
time limit in Sec.  2424.21(a)(1) applies.
0
6. Amend Sec.  2424.21 by revising paragraph (b) amending paragraph (b)
introductory text and paragraph (b)(1) to read as follows:
Sec.  2424.21  Time limits for filing a petition for review.
* * * * *
    (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:
    (1) The petition may be filed within sixty (60) days after the
expiration of the ten (10) day period, subject to the following:
    (i) If the agency serves a written allegation on the exclusive
representative more than ten (10) days after receiving a written
request for such allegation, and the exclusive representative has not
previously filed a petition under this paragraph, then the petition
must be filed within fifteen (15) days after the date of service of
that allegation on the exclusive representative;
    (ii) If the agency serves a written allegation on the exclusive
representative more than ten (10) days after receiving a written
request for such allegation, and the exclusive representative has
previously filed a petition under this paragraph, then the Authority
will consider the appeal filed on the date of the previous petition.
The exclusive representative may not file an additional petition, but
the Authority may allow amendments to the previous petition based on
the written allegation.
* * * * *
0
7. Revise Sec.  2424.22 to read as follows:
Sec.  2424.22  Exclusive representative's petition for review; purpose;
divisions; content; 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.
    (b) Divisions. The petition will be resolved according to how the
exclusive representative divides matters into proposals or provisions.
If the exclusive representative seeks a negotiability determination on
particular matters standing alone, then the exclusive representative
must submit those matters as distinct proposals or provisions.
    (c) Content. You must file a petition for review on a form that the
Authority has provided for that purpose, or in a substantially similar
format. You meet this requirement if you file your petition
electronically through use of the eFiling system on the FLRA's website
at www.flra.gov. That website also provides copies of petition forms.
You must date the petition, unless you file it electronically through
use of the FLRA's eFiling system. And, regardless of how you file the
petition, you must ensure that it includes 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 on which you rely
in your argument or that you reference in the proposal or provision,
and a copy of any such material that the Authority cannot easily access
(which you may upload as attachments if you file the petition
electronically through use of the FLRA's eFiling system);
    (3) An explanation of how the cited law, rule, regulation, section
of a collective bargaining agreement, or other authority relates to
your argument, proposal, or provision;
    (4) 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; and
    (5) Documents relevant to the statement, including a copy of any
related unfair labor practice charge, grievance, request for impasse
assistance, or other petition for review.
    (d) Response. Where the agency's written allegation concerning the
duty to bargain, or the agency head's disapproval, relies on a specific
law, rule, regulation, section of a collective bargaining agreement, or
other authority to support the agency's bargaining-obligation or
negotiability claims, the exclusive representative must respond to
those specific claims in the petition for review.
    (e) Service. The petition for review, including all attachments,
must be served in accord with Sec.  2424.2(g).
0
8. Amend Sec.  2424.23 by:
0
a. Revising paragraphs (a), (b)(4), and (c); and
0
b. Adding paragraphs (d) and (e).
    The additions and revisions to read as follows:
Sec.  2424.23  Post-petition conferences; conduct and record.
    (a) Scheduling a post-petition conference. The FLRA may, in its
discretion, schedule a post-petition conference to be conducted by an
FLRA representative by telephone, in person, or through other means.
Unless the Authority or an FLRA representative directs otherwise,
parties must observe all time limits in this part, regardless of
whether a post-petition conference is conducted or may be conducted.
    (b) * * *
    (4) Status of any proposal or provision that 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.
* * * * *
    (c) Discretionary extension of time limits. 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 the time limits for filing the agency's
[[Page 70443]]
statement of position and any subsequent filings.
    (d) Record of the conference. After the post-petition conference
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.
    (e) Hearings. Instead of, or in addition to, conducting a post-
petition conference, the Authority may exercise its discretion under
Sec.  2424.31 to hold a hearing or take other appropriate action to aid
in decision making.
0
9. Amend Sec.  2424.24 by:
0
a. Revising the heading of the section;
0
b. Revising paragraphs (a) and (b);
0
c. Revising the introductory text of paragraph (c)(2);
0
d. Revising paragraphs (c)(3) and (c)(4);
0
e. Removing paragraph (d); and
0
f. Redesignating paragraph (e) as paragraph (d).
Sec.  2424.24  Agency's statement of position; purpose; time limits;
content; service.
    (a) Purpose. The purpose of the agency's 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, and whether the agency disagrees with any facts or
arguments made by the exclusive representative in the petition.
    (b) Time limit for filing. 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) * * *
    (2) Set forth in full your position on any matters relevant to the
petition that you want 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 that the exclusive representative made in the
petition for review; specific citation to, and explanation of the
relevance of, any law, rule, regulation, section of a collective
bargaining agreement, or other authority on which you rely; and a copy
of any such material that the Authority may not easily access (which
you may upload as attachments if you file your statement of position
electronically through use of the FLRA's eFiling system). Your
statement of position must also include the following:
* * * * *
    (3) Status of any proposal or provision that 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; and
    (4) If they have not already been provided with the petition,
documents relevant to the updates, including a copy of any related
unfair labor practice charge, grievance, request for impasse
assistance, or other petition for review.
    (d) Service. A copy of the agency's statement of position,
including all attachments, must be served in accord with Sec.
2424.2(g).
0
10. Revise Sec.  2424.25 to read as follows:
Sec.  2424.25  Response of the exclusive representative; purpose; time
limits; content; 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 made for the
first time in the agency's statement of position.
    (b) Time limit for filing. 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. You must file your response on a form that the
Authority has provided for that purpose, or in a substantially similar
format. You meet this requirement if you file your response
electronically through use of the eFiling system on the FLRA's website
at www.flra.gov. That website also provides copies of response forms.
You must limit your response to the matters that the agency raised in
its statement of position. You must date your response, unless you file
it electronically through use of the FLRA's eFiling system. And,
regardless of how you file your response, you must ensure that it
identifies any disagreement with the agency's bargaining-obligation or
negotiability claims. You must: State the arguments and authorities
supporting your opposition to any agency argument; include specific
citation to, and explanation of the relevance of, any law, rule,
regulation, section of a collective bargaining agreement, or other
authority on which you rely; and provide a copy of any such material
that the Authority may not easily access (which you may upload as
attachments if you file your response electronically through use of the
FLRA's eFiling system). You are not required to repeat arguments that
you made in your petition for review. If not included in the petition
for review, then you must state the arguments and authorities
supporting your position on all of the relevant bargaining-obligation
and negotiability matters identified in Sec.  2424.2(a) and (c),
respectively.
    (d) Service. A copy of the response of the exclusive
representative, including all attachments, must be served in accord
with Sec.  2424.2(g).
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11. Revise Sec.  2424.26 to read as follows:
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.
    (b) Time limit for filing. Within ten (10) 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. You must file your reply on a form that the Authority
has provided for that purpose, or in a substantially similar format.
You meet this requirement if you file your reply electronically through
use of the eFiling system on the FLRA's website at www.flra.gov. That
website also provides copies of reply forms. You must limit your reply
to matters that the exclusive representative raised for the first time
in its response. You must date your reply, unless you file it
electronically through use of the FLRA's eFiling system. And,
regardless of how you file your reply, you must ensure that it
identifies any disagreement with the exclusive representative's
assertions in its response, including your disagreements with
assertions about the bargaining-obligation and negotiability matters
identified in Sec.  2424.2(a) and (c). You must: State the arguments
and authorities supporting your position; include specific citation to,
and explanation of the relevance of, any law, rule, regulation, section
of a collective bargaining agreement, or other authority on which you
rely; and provide a copy of any such material that the Authority may
not easily access (which you may upload as attachments if you file your
[[Page 70444]]
reply electronically through use of the FLRA's eFiling system). You are
not required to repeat arguments that you made in your statement of
position.
    (d) Service. A copy of the agency's reply, including all
attachments, must be served in accord with Sec.  2424.2(g).
0
12. Revise Sec.  2424.27 to read as follows:
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. All documents filed under this section must
be served in accord with Sec.  2424.2(g).
0
13. Revise Sec.  2424.30 to read as follows:
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), the Authority will
dismiss a petition for review when 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 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. For purposes of this
subsection, a grievance is resolved administratively when:
    (1) The exclusive representative withdraws the grievance;
    (2) The parties mutually resolve the grievance;
    (3) An arbitrator has issued an award resolving the grievance, and
the 30-day period under 5 U.S.C. 7122(b) has passed without an
exception being filed; or
    (4) An arbitrator has issued an award resolving the grievance, a
party has filed an exception to that award, and the Authority has
issued a decision resolving that exception.
    (b) Exclusive representative has not filed related unfair labor
practice charge or grievance alleging an unfair labor practice. The
petition will be processed as follows:
    (1) No bargaining obligation dispute exists. The Authority will
resolve the petition for review under the procedures of this part.
    (2) A bargaining obligation dispute exists. The exclusive
representative may file an unfair labor practice charge pursuant to
part 2423 of this subchapter or a grievance under the parties'
negotiated grievance procedure concerning the bargaining obligation
dispute, and, where the exclusive representative pursues either of
these courses, the Authority will proceed in accord with paragraph (a)
of this section. If the exclusive representative does not file an
unfair labor practice charge or grievance concerning the bargaining
obligation dispute, then 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.
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14. Amend Sec.  2424.31 by revising the introductory text and paragraph
(c) to read as follows:
Sec.  2424.31  Hearings and other appropriate action.
    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, in its discretion:
* * * * *
    (c) Refer the matter to a hearing pursuant to 5 U.S.C. 7117(b)(3)
or (c)(5); or
* * * * *
0
15. Revise Sec.  2424.32 to read as follows:
Sec.  2424.32  Parties' responsibilities; failure to raise, support, or
respond to arguments; failure to participate in conferences or respond
to Authority orders.
    (a) Responsibilities of the exclusive representative. The exclusive
representative has the burden of explaining the meaning, operation, and
effects of the proposal or provision; and 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.
    (b) Responsibilities of the agency. The agency has the burden of
explaining the meaning, operation, and effects of the proposal or
provision, if the agency disagrees with the exclusive representative's
explanations; and raising and supporting arguments that the proposal or
provision is outside the duty to bargain or contrary to law,
respectively.
    (c) Responsibilities to sufficiently explain. Each party has the
burden to give sufficiently detailed explanations to enable the
Authority to understand the party's position regarding the meaning,
operation, and effects of a proposal or provision. A party's failure to
provide such explanations may affect the Authority's decision in a
manner that is adverse to the party.
    (d) Failure to raise, support, and respond to arguments. (1)
Failure to raise and support an argument may, in the Authority's
discretion, 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 may, in the Authority's discretion, be treated as conceding
such argument or assertion.
    (e) 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 (d) of this section, take any other action that, in the
Authority's discretion, it deems appropriate, including dismissal of
the petition for review (with or without prejudice to the exclusive
[[Page 70445]]
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).
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16. Amend Sec.  2424.40 by revising paragraphs (b) and (c) to read as
follows:
Sec.  2424.40  Authority decision and order.
* * * * *
    (b) Cases involving proposals. If the Authority finds that the duty
to bargain extends to the proposal, then the Authority will order the
agency to bargain 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 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 is not contrary to law, rule, or regulation, or is
bargainable at the election of the agency, then 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.
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17. Revise Sec.  2424.41 to read as follows:
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. The exclusive representative must report
such failure within thirty (30) days 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).
0
18. Amend Sec.  2424.50 by revising the introductory text to read as
follows:
Sec.  2424.50  Illustrative criteria.
    A compelling need exists for an agency rule or regulation
concerning any condition of employment when the rule or regulation was
issued by the agency or any primary national subdivision of the agency,
and the agency demonstrates that either the rule or regulation meets
one or more of the following illustrative criteria, or the Authority
determines that other circumstances establish a compelling need for the
rule or regulation:
* * * * *
    Approved: December 12, 2019.
Colleen Duffy Kiko,
Chairman, Federal Labor Relations Authority.
[FR Doc. 2019-27193 Filed 12-20-19; 8:45 am]
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