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FLRA/FSIP UPDATE:

UNANSWERED QUESTIONS CONCERNING FSIP’S

AUTHORITY UNDER THE STATUTE

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BACKGROUND:

WHEN INVESTIGATING A REQUEST FOR ASSISTANCE FSIP TRIES TO DETERMINE WHETHER THE PARTIES’ DISPUTE BELONGS TO FSIP OR A DIFFERENT STATUTORILY SANCTIONED FORUM.

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THE PANEL DOES NOT RESOLVE-

- QUESTIONS CONCERNING REPRESENTATION- GRIEVANCES- NEGOTIABILITY DISPUTES- BARGAINING OBLIGATION DISPUTES

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CASE # 1:

COMMANDER, CARSWELL AIR FORCE BASE, TEXAS AND AFGE, LOCAL 1364, 31 FLRA 620 (1988) (CARSWELL)

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IN CARSWELL, THE FLRA PROVIDED FSIP AND INTEREST ARBITRATORS WITH GUIDANCE WHEN FACED WITH NEGOTIABILITY DISPUTES.

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NEGOTIABILITY DISPUTE IS DEFINED IN 5 C.F.R. § 2424.2(c) OF THE FLRA’S REGULATIONS AS “A DISAGREEMENT” BETWEEN AN AGENCY AND A UNION “CONCERNING THE LEGALITY OF A PROPOSAL OR PROVISION,” E.G.,

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WHETHER IT:- AFFECTS A MANAGEMENT RIGHTUNDER 5 U.S.C. § 7106(a) - IS A PROCEDURE OR APPROPRIATE ARRANGEMNT UNDER

5 U.S.C. § 7106(b)(2) or (3)- IS CONSISTENT WITH A GOVERNMENT-WIDE REGULATION

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UNDER CARSWELL, FSIP CAN RESOLVE A NEGOTIABILITY DISPUTE ONLY IF THE FLRA PREVIOUSLY HAS FOUND A “SUBSTANTIVELY IDENTICAL PROPOSAL” NEGOTIABLE.

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ITS APPROACH “PRESERVES THE PANEL’S DISCRETION AS TO WHETHER OR NOT TO ASSERT JURISDICTION AND, AS INTENDED BY THE STATUTE, ENSURES THAT UNDECIDED DUTY-TO-BARGAIN ISSUES WILL BE RESOLVED BY THE” FLRA.

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CARSWELL APPLIES TO DUTY-TO-BARGAIN ISSUES RAISED BY EITHER PARTY IN THE COURSE OF IMPASSE RESOLUTION, EVEN THOUGH CONGRESS GAVE ONLY THE UNION THE RIGHT TO PETITION THE FLRA FOR NEGOTIABILITY RULINGS, AND CARSWELL SPECIFICALLY DEALT WITH AN AGENCY ALLEGATION THAT UNION PROPOSALS WERE

OUTSIDE ITS DUTY TO BARGAIN.

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TAKEN LITERALLY, CARSWELL WOULD REQUIRE THE PANEL TO DECLINE JURISDICTION OVER AN AGENCY PROPOSAL WHENEVER A UNION RAISES A DUTY-TO-BARGAIN QUESTION THAT THE FLRA HAS NEVER PREVIOUSLY ADDRESSED, I.E., THAT A MATTER INVOLVES A “PERMISSIVE” SUBJECT OF BARGAINING. THE PANEL WOULD HAVE TO WAIT FOR THE FLRA TO RESOLVE THE MATTER THROUGH THE ULP OR GRIEVANCE FORUMS BEFORE IT COULD REACH THE MERITS OF THE ISSUE.

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THE FLRA HAS NEVER EXPLAINED THE STATUTORY BASIS FOR APPLYING THE GUIDANCE IN CARSWELL EQUALLY TO AGENCIES AND UNIONS WHERE CONGRESS APPARENTLY ONLY INTENDED AGENCIES TO HAVE THE RIGHT TO DECLARE UNION PROPOSALS NONNEGOTIABLE.

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IN IRS, WASHINGTON, D.C. AND NTEU, CASE NO. 07 FSIP 10 (JUNE 16, 2008), THE UNION ALLEGED THAT FSIP HAD NO JURISDICTION OVER 15 OF 23 EMPLOYER GROUND RULES PROPOSALS BECAUSE THEY ALL INVOLVED PERMISSIVE SUBJECTS OF BARGAINING. IT ARGUED THAT, UNDER CARSWELL, FSIP HAD NO AUTHORITY TO IMPOSE THEM BECAUSE THE FLRA HAD NOT PREVIOUSLY FOUND “SUBSTANTIVELY IDENTICAL” PROPOSALS NEGOTIABLE.

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FSIP EVENTUALLY DECLINED TO RETAIN JURISDICTION OVER THE 15 GROUND RULES PROPOSALS BUT NOT FOR THE REASON URGED BY THE UNION. FSIP DECLINED BECAUSE THE UNION HAD NEVER BARGAINED OVER THEM, A NECESSARY CONDITION FOR AN IMPASSE.

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THE UNION ALSO FILED A GRIEVANCE ALLEGING THAT THE EMPLOYER HAD BARGAINED IN BAD FAITH WHEN IT REQUESTED FSIP’S ASSISTANCE TO RESOLVE AN IMPASSE OVER PERMISSIVE SUBJECTS OF BARGAINING. THE ARBITRATOR SUSTAINED THE GRIEVANCE AND FOUND THAT 4 OF THE EMPLOYER’S PROPOSALS INVOLVED PERMISSIVE SUBJECTS

OF BARGAINING.

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BOTH PARTIES HAVE FILED EXCEPTIONS TO THE GRIEVANCE ARBITRATOR’S DECISION AND THE CASE IS CURRENTLY PENDING BEFORE THE FLRA.

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CASE # 2:

DHHS, SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND AND AFGE, NATIONAL COUNCIL OF SSA FIELD LOCALS, 47 FLRA 1004 (1993) (SSA)

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SSA PROVIDED GUIDANCE TO THE FEDERAL SECTOR COMMUNITY REGARDING A PARTICULAR KIND OF BARGAINING OBLIGATION DISPUTE.

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BARGAINING OBLIGATION DISPUTE IS DEFINED IN 5 C.F.R. § 2424.2(a) OF THE FLRA’S REGULATIONS – E.G., - PROPOSAL CONCERNS A MATTER “COVERED BY” A CBA - BARGAINING NOT REQUIRED BECAUSE EFFECT OF CHANGE IS

DE MINIMIS

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IN SSA, THE FLRA HELD THAT AN EMPLOYER IS NOT OBLIGATED TO BARGAIN OVER UNION PROPOSALS MID-TERM WHEN THE SUBJECT IS “COVERED BY” AN EXISTING CBA.

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IN SSA, THE FLRA SPECIFIED THAT THE FRAMEWORK IT ESTABLISHED “IS INTENDED TO APPLY ONLY TO CASES IN WHICH AN AGENCY ASSERTS THAT IT HAS NO OBLIGATION TO BARGAIN BASED ON THE TERMS OF A NEGOTIATED AGREEMENT.” (FN. 7, AT 1016)

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IN NTEU AND CUSTOMS SERVICE, 59 FLRA 217, 218 (2003), HOWEVER, THE FLRA STATED THAT “THE ‘COVERED BY’ DOCTRINE OPERATES AS A DEFENSE TO AN ALLEGED UNLAWFUL REFUSAL TO BARGAIN” BY AN AGENCY OR A UNION.

THE FLRA HAS NEVER EXPLAINED HOW A DOCTRINE THAT APPLIED ONLY TO AGENCIES IN SSA NOW APPLIES TO BOTH AGENCIES AND UNIONS.