Negotiability Proceedings, 70439-70445 [2019-27193]

Agencies

• Federal Labor Relations Authority

[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]


========================================================================
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.

========================================================================


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).
0
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.
0
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).
0
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.
0
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]
 BILLING CODE P