Negotiability Proceedings, 62445-62460 [2023-19269]

Agencies

• Federal Labor Relations Authority

[Federal Register Volume 88, Number 175 (Tuesday, September 12, 2023)]
[Rules and Regulations]
[Pages 62445-62460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19269]



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Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / 
Rules and Regulations

[[Page 62445]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2424


Negotiability Proceedings

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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SUMMARY: The Federal Labor Relations Authority (FLRA) is revising the 
regulations governing negotiability appeals to better ``expedite 
proceedings,'' consistent with Congress's direction. The final rule is 
designed to benefit the FLRA's parties by clarifying various matters 
and streamlining the adjudication process for negotiability appeals, 
resulting in more timely decisions.

DATES: 
    Effective Date: This rule is effective October 12, 2023.
    Applicability Date: This part applies to all petitions for review 
filed on or after October 12, 2023.

FOR FURTHER INFORMATION CONTACT: Thomas Tso, Solicitor, at 
[email protected] or at (771) 444-5779.

SUPPLEMENTARY INFORMATION: The FLRA proposed revisions to part 2424 of 
the Authority's Regulations concerning negotiability proceedings. The 
proposed rule was published in the Federal Register, and public 
comments were solicited on the proposed changes (84 FR 70439) (Dec. 23, 
2019). After the initial public comment period closed, the FLRA 
reopened the comment period for an additional round of public feedback 
(85 FR 4913) (Jan. 28, 2020). (From this point forward, the printed 
statements at 84 FR 70439 and 85 FR 4913 are collectively referred to 
as ``the proposal notices.'') Comments were received from unions, 
agencies, labor-management practitioners, and other individuals. All 
timely comments have been considered prior to publishing the final 
rule, and virtually all comments, including all significant comments, 
are addressed with specificity below. Changes from the proposed rule 
are also discussed below, and where those changes relate to specific 
comments, the connection between the changes and the comments is noted.

Significant Changes

    In Sec. Sec.  2424.22 and 2424.25, the final rule changes the 
procedures through which an exclusive representative may divide or 
sever a proposal or provision into distinct parts, in order to seek 
separate negotiability determinations on particular matters standing 
alone. Section 2424.10 of the final rule does not remove references to 
the Collaboration and Alternative Dispute Resolution Program. Section 
2424.21 of the final rule does not require an exclusive representative 
to file a petition for review within sixty days after the expiration of 
the deadline for an agency to respond to a request for a written 
allegation concerning the duty the bargain. Section 2424.22 of the 
final rule does not require an exclusive representative to respond, in 
a petition for review, to specific claims in an agency's allegation 
concerning the duty to bargain or an agency head's disapproval. Section 
2424.26 of the final rule does not shorten the time limit for filing an 
agency's reply from fifteen days to ten days. Section 2424.41 of the 
final rule does not require an exclusive representative to report to a 
Regional Director an agency's failure to comply with a negotiability 
decision and order within thirty days after the expiration of the 60-
day period for seeking judicial review. Unlike the potentially broad 
revisions contemplated in the proposal notices, the final rule leaves 
Sec.  2424.50 of the Authority Regulations (concerning compelling need) 
mostly unchanged.

Miscellaneous Comments and Responses

    Some of the comments responding to the proposal notices did not 
concern a specific section of the proposed rules. One commenter opposed 
any changes to existing negotiability procedures because, in the 
commenter's view, the process could be streamlined by employing 
sufficient staff. As this comment was not germane to the proposed rule, 
it did not influence the final rule.
    The Office of Personnel Management (OPM) requested that the final 
rule include a provision requiring that, if a petition for review 
raises a negotiability dispute concerning a statute that OPM 
administers, an executive order that OPM administers, or a government-
wide regulation that OPM promulgated, then the Authority must formally 
notify OPM and provide OPM an opportunity to intervene in the case.
    Section 7105(i) of the Federal Service Labor-Management Relations 
Statute (the Statute) states that ``the Authority may request from the 
Director of [OPM] an advisory opinion concerning the proper 
interpretation of rules, regulations, or policy directives issued by 
[OPM] in connection with any matter before the Authority.'' 5 U.S.C. 
7105(i) (emphasis added). Admittedly, Section 7105(i) does not address 
the full scope of the matters raised in OPM's comment--such as statutes 
or executive orders that OPM administers. However, regarding 
government-wide regulations that OPM issued, Section 7105(i) indicates 
that Congress did not think it necessary either to require the 
Authority to seek OPM's views in every case, or to provide OPM an 
opportunity to intervene in cases. In addition, when Congress thought 
OPM should have the right to intervene in a particular class of civil-
service cases--for example, certain cases before the Merit Systems 
Protection Board involving the ``interpretation or application of any 
civil[-]service law, rule, or regulation, under the jurisdiction of 
[OPM]''--Congress provided for intervention in statutory text. 5 U.S.C. 
7701(d)(1). Further, nothing in the Statute, including Section 7105(i), 
prevents the Authority from requesting an advisory opinion from OPM on 
statutes or executive orders that OPM administers, where such an 
opinion would aid the Authority in its decision making. Moreover, Sec.  
2429.9 of the Authority's Regulations allows any interested person to 
petition for the opportunity to present views as amicus curiae in a 
particular case, and OPM may petition to present its views through that 
provision. 5 CFR 2429.9.
    For these reasons, the final rule does not include a provision 
concerning notification of, and intervention by, OPM in particular 
cases.

Sectional Analyses, Comments, and Responses

    The regulatory analyses provided in the proposal notices about 
wording that

[[Page 62446]]

has not changed from the proposed rule to the final rule should be 
understood to apply to the unchanged portions of the final rule. Such 
previous analyses will not be repeated here, although they continue to 
apply. Further sectional analyses of the amendments and revisions to 
part 2424, Negotiability Proceedings--including public comments and 
responses to those comments--follow:

Part 2424--Negotiability Proceedings

Section 2424.1

    None of the public comments addressed Sec.  2424.1. The final rule 
is the same as the proposed rule.

Section 2424.2

Comments and Responses
    One commenter stated that the sentence listing examples of 
bargaining obligation disputes should say that such disputes include, 
but may not be limited to, the specified examples. This requested 
change is unnecessary because the list of examples does not purport to 
be exhaustive. The same commenter asked that the examples be joined by 
``or'' rather than ``and.'' The commenter correctly notes that each 
example is sufficient, on its own, to establish a bargaining obligation 
dispute. However, this requested change is unnecessary because each 
example is part of a group of similar terms, so using ``and'' is 
appropriate. Therefore, these requested changes were not adopted.
    Another commenter requested that the examples of bargaining 
obligation disputes be expanded from the proposed rule so that the 
examples still included situations where parties disagree about whether 
a change to conditions of employment was de minimis. As discussed in 
connection with Sec.  2424.2(a)(2) below, this requested change is 
incorporated into the final rule.
    A third commenter stated that it does not interpret the changes to 
the examples in this section to alter the legal definition of the 
defined terms. To the extent that the commenter means that the changes 
to examples are intended to better illustrate the existing definitions 
of these terms, rather than to change the operative definitions of the 
terms, the commenter is correct. This commenter also objected to adding 
executive orders to the examples of sources of negotiability disputes. 
As explained further below in connection with Sec.  2424.2(c), 
executive orders are not included among the examples of sources of 
negotiability disputes in the final rule. This commenter also asked 
that, where government-wide rules or regulations are listed as sources 
of negotiability disputes, the rule be amended to acknowledge that 
government-wide rules or regulations can be contrary to statutory law. 
However, this requested change is unnecessary because it is irrelevant 
to the existence of a negotiability dispute. Regardless of whether a 
government-wide rule or regulation is consistent with, or contrary to, 
a statute, a disagreement between parties about whether a proposal or 
provision is consistent with a government-wide rule or regulation will 
establish that a negotiability dispute exists.
Further Analysis
    As in the proposed rule, Sec.  2424.2(a) of the final rule 
clarifies the definition of a ``bargaining obligation dispute.'' 
However, in response to a comment seeking further examples, Sec.  
2424.2(a) of the final rule includes two additional examples, rather 
than (as in the proposed rule) one additional example. Specifically, 
Sec.  2424.2(a)(2) of the final rule identifies, as examples of 
bargaining obligation disputes, disagreements concerning agency claims 
that bargaining is not required ``because there has not been a change 
in bargaining-unit employees' conditions of employment,'' see, e.g., 
NFFE, IAMAW, Fed. Dist. 1, Fed. Loc. 1998, 69 FLRA 586, 589 (2016) 
(analyzing agency's contested claim that it made no changes to 
conditions of employment as a bargaining obligation dispute) (Member 
Pizzella concurring in part and dissenting in part on other grounds), 
as well as claims that bargaining is not required ``because the effect 
of the change is de minimis,'' e.g., AFGE, Loc. 2139, Nat'l Council of 
Field Lab. Locs., 61 FLRA 654, 656 (2006) (``The claim that a change in 
employees' conditions of employment is de minimis is a bargaining 
obligation dispute, rather than a negotiability dispute.''). Section 
2424.2(a)(3) of the final rule is the same as the proposed rule and 
identifies, as an example of a bargaining obligation dispute, a 
disagreement about an agency claim that ``[t]he exclusive 
representative is attempting to bargain at the wrong level of the 
agency.'' Unlike the proposed rule, the final rule does not revise the 
text currently located at 5 CFR 2424.2(b).
    Section 2424.2(c) of the final rule differs from the proposed rule 
in three respects. First, whereas Sec.  2424.2(c)(2) of the proposed 
rule identified, as an example of a negotiability dispute, a 
disagreement concerning whether a proposal or provision ``[d]irectly 
affects bargaining-unit employees' condition of employment,'' Sec.  
2424.2(c)(2) of the final rule removes the word ``[d]irectly.'' The 
word ``[d]irectly'' was removed because a negotiability dispute exists 
when there is a disagreement about whether a proposal or provision has 
any effect on bargaining-unit employees' conditions of employment--not 
only when there is disagreement about direct effects. See, e.g., NAGE, 
Loc. R1-144, 43 FLRA 1331, 1333 (1992); id. at 1335 (agency argued that 
proposals did not concern conditions of employment of bargaining-unit 
employees), 1350-51 (Authority found four proposals ``nonnegotiable'' 
because they did not concern the conditions of employment of 
bargaining-unit employees). Second, unlike Sec.  2424.2(c) of the 
proposed rule, Sec.  2424.2(c) of the final rule does not include 
executive orders among the examples of sources of negotiability 
disputes. However, the omission of this example does not prohibit 
parties from arguing that a proposal's or provision's inconsistency 
with an executive order gives rise to a negotiability dispute. Third, 
because the executive-order example was removed, Sec.  2424.2(c)(7) of 
the proposed rule has become Sec.  2424.2(c)(6) of the final rule, and 
Sec.  2424.2(c)(8)(i) through (v) of the proposed rule have become 
Sec.  2424.2(c)(7)(i) through (v) of the final rule. The remaining 
changes to the text currently located at 5 CFR 2424.2(c) are the same 
in the final rule as in the proposed rule.
    Section 2424.2(e) and (f) are the same in the final rule as in the 
proposed rule.
    The proposal notices explained that, although the proposed rule 
contained revised wording that would ``[e]liminat[e] severance 
altogether,'' ``the FLRA [wa]s also considering another possible 
option'' that would not completely eliminate severance. 84 FR at 70439. 
Unlike the proposed rule, the final rule does not remove the existing 
definition of ``[s]everance,'' located at 5 CFR 2424.2(h). Because the 
final rule does not remove the ``[s]everance'' definition, the final 
rule also does not redesignate the definition of ``[w]ritten allegation 
concerning the duty to bargain'' as Sec.  2424.2(h)--which is a change 
from the proposed rule. Under the final rule, the definition of 
``[w]ritten allegation concerning the duty to bargain'' maintains its 
existing location at 5 CFR 2424.2(i).

Section 2424.10

Comments and Responses
    Three commenters opposed adding to this section new wording that 
specifies that Collaboration and Alternative Dispute Resolution (CADR) 
assistance is provided at the discretion of the

[[Page 62447]]

Authority. The final rule does not include the wording that assistance 
is provided ``in the discretion of the Authority''; however, the 
Authority disagrees with the commenters' assertions that, as long as 
the parties agree to CADR assistance, the decision about whether a 
dispute enters the CADR Program should not be at the Authority's 
discretion. For example, the Authority may not have resources available 
to provide CADR assistance every time it is requested. If the Authority 
declines to grant CADR assistance, that action in no way prevents 
parties from agreeing to seek alternative dispute resolution services 
from entities outside the FLRA--such as the Federal Mediation and 
Conciliation Service.
    One commenter appeared to believe that, under the proposed rule, 
after a petition for review had been filed, the Authority could require 
the parties to participate in alternative dispute resolution without 
their consent. To the contrary, CADR assistance will continue to 
require the consent of the parties.
    Another commenter expressed reservations about an addition in the 
proposed rule that stated that CADR assistance would be provided as 
resources permit. Because the FLRA is unable to offer any services 
beyond the capacity of its available resources, this wording remains 
part of the final rule, as discussed further below.
    A third commenter expressed disappointment that the proposed rule 
removed references to the CADR Program. As explained further below, the 
final rule does not remove those references.
Further Analysis
    Unlike the proposed rule, the heading of Sec.  2424.10 in the final 
rule will remain the same as the existing heading of 5 CFR 2424.10. In 
another variance from the proposed rule, Sec.  2424.10 of the final 
rule is amended to state that parties may contact either the CADR 
Program or the Office of Case Intake and Publication to seek CADR 
services. Updated phone numbers are added to the final rule. Further, 
whereas the proposed rule removed all direct references to CADR, Sec.  
2424.10 of the final rule retains all of the direct references to CADR 
that currently appear in 5 CFR 2424.10. As in the proposed rule, Sec.  
2424.10 of the final rule clarifies that CADR representatives will 
attempt to assist parties to resolve their disputes ``as resources 
permit.''

Section 2424.11

Comments and Responses
    Two commenters supported requiring that requests for allegations 
concerning the duty to bargain be in writing, and like the proposed 
rule, the final rule incorporates this requirement.
    OPM requested that this section be amended to state that any 
written agency responses to an exclusive representative's proposals--
including agency counterproposals--may contain an unrequested agency 
allegation concerning the duty the bargain. Because the existing 
wording does not limit the types of written sources that may contain an 
unrequested agency allegation concerning the duty to bargain, the 
requested change is unnecessary. Therefore, the final rule does not 
adopt that requested change.
    OPM also requested that this section be amended to specify that an 
agency allegation concerning the duty to bargain need contain only an 
assertion of nonnegotiability and the statutory basis, or other 
authority, supporting that assertion. OPM contended that the rule 
should make clear that no further detail is necessary to trigger the 
time limits for filing a petition for review under Sec.  2424.21. The 
existing wording at 5 CFR 2424.11 does not specify the level of detail 
required to trigger the time limits in Sec.  2424.21, except to say 
that agency allegations must be in writing and must concern the duty to 
bargain. The FLRA believes that case-by-case adjudication continues to 
provide a superior method for determining precisely when an agency 
allegation has triggered the time limits in Sec.  2424.21, and the 
final rule has not adopted OPM's suggested modification.
Further Analysis
    The final rule is the same as the proposed rule.

Section 2424.21

Comments and Responses
    Six commenters addressed the change in the proposed rule that, if 
an agency fails to respond within ten days to an exclusive 
representative's written request for a written agency allegation 
concerning the duty to bargain, then the exclusive representative may 
file a petition, but only within the next sixty days. One union 
commenter stated that the sixty-day timeline was adequate under these 
circumstances. Three agency commenters stated that imposing the sixty-
day timeline would ensure that negotiability disputes did not linger 
longer than necessary. OPM requested that this deadline be shortened to 
thirty days. One union commenter opposed the sixty-day deadline 
because, according to the commenter, this change rewarded an agency's 
failure to respond to a written request for an allegation of 
nonnegotiability by nevertheless imposing a deadline on the exclusive 
representative for filing a petition for review. As discussed further 
below, the final rule does not impose this sixty-day deadline because 
it is not clear that there is currently a problem with exclusive 
representatives waiting for unnecessarily lengthy periods of time to 
file petitions after requesting, but not receiving, written agency 
allegations.
    Two commenters expressed concern that an agency does not face 
adverse consequences for failing to provide a written allegation 
concerning the duty the bargain within ten days of the exclusive 
representative's written request for such an allegation. One union 
commenter suggested that, to provide an adverse consequence for an 
agency in these circumstances, for each day that the agency's requested 
allegation is late--that is, beyond the ten-day deadline for providing 
such an allegation--the exclusive representative should receive an 
additional day for filing its petition. This suggestion would violate 
Section 7117(c)(2) of the Statute, which requires a fifteen-day 
deadline for filing a petition for review after an agency alleges that 
the duty to bargain does not extend to any matter. 5 U.S.C. 7117(c)(2). 
Thus, this suggestion has not been adopted. The same union commenter 
was also concerned that fifteen days would be inadequate for filing a 
petition that satisfies certain new content requirements that appeared 
in Sec.  2424.22(d) of the proposed rule. As discussed later in 
connection with Sec.  2424.22(d), the proposed new content requirements 
are not part of the final rule, so this concern has been mooted. One 
commenter suggested that the Authority rewrite the section so that none 
of the deadlines depend on when the exclusive representative receives, 
or does not receive, written agency allegations. According to this 
commenter, the complexity of the section in distinguishing between 
responses or non-responses to written requests for allegations, 
solicited or unsolicited allegations, and written versus unwritten 
allegations creates unnecessary formality that will confuse many 
negotiators, who are often not lawyers. The commenter suggested that 
the section state simply that an exclusive representative may file an 
appeal at any time after the representative is placed on notice that 
the agency considers a proposal

[[Page 62448]]

nonnegotiable, even if the exclusive representative has not requested a 
written allegation of nonnegotiability. This suggestion would violate 
Section 7117(c)(2) of the Statute, which requires a fifteen-day 
deadline for filing a petition for review after an agency alleges that 
the duty to bargain does not extend to any matter. 5 U.S.C. 7117(c)(2). 
Accordingly, this suggestion has not been adopted.
    One union commenter opposed Sec.  2424.21(b)(1)(i) of the proposed 
rule, which stated that, if the agency serves a written allegation on 
the exclusive representative more than ten days after receiving a 
written request for such allegation, then the petition must be filed 
within fifteen days of the service of that allegation. This union 
commenter contended that imposing a fifteen-day deadline on an 
exclusive representative--even when an agency did not satisfy its 
obligation to provide a requested allegation within ten days of the 
request--rewards an agency's violation of its regulatory obligation to 
furnish requested allegations. However, this commenter did not suggest 
any alternative regulatory wording, and as discussed in the previous 
two paragraphs, Section 7117(c)(2) of the Statute requires a fifteen-
day deadline for filing a petition for review after an agency alleges 
that the duty to bargain does not extend to any matter. 5 U.S.C. 
7117(c)(2). As discussed further below, with some modifications to the 
wording, the change identified as Sec.  2424.21(b)(1)(i) of the 
proposed rule has been adopted as Sec.  2424.21(b)(1) of the final 
rule.
    OPM suggested that Sec.  2424.21(b)(1)(ii) of the proposed rule be 
omitted from the final rule because it was confusing. As explained 
further below, this suggestion was accepted.
Further Analysis
    Unlike the proposed rule, Sec.  2424.21 of the final rule does not 
state that if an agency fails to respond to a written request for a 
written allegation within ten days of the request, then the exclusive 
representative may file a petition, but only within the next sixty 
days. Further, to simplify the rule, Sec.  2424.21 of the final rule 
does not adopt the wording from Sec.  2424.21(b)(1)(ii) of the proposed 
rule, which described how the Authority would handle a situation where 
an agency served a written allegation on the exclusive representative 
more than ten days after receiving a written request for such 
allegation, but the exclusive representative had already filed a 
petition. These proposed changes have been deliberately omitted from 
the final rule. However, Sec.  2424.21 of the final rule adopts the 
change from the proposed rule that, if the agency serves a written 
allegation on the exclusive representative more than ten 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 days of 
the service of that allegation. This change now appears as Sec.  
2424.21(b)(1) in the final rule.

Section 2424.22

Comments and Responses
    OPM suggested that this section specify that untimely petitions 
will be dismissed absent a demonstration of good cause. Existing 
procedures for addressing untimely petitions have proven adequate, so 
this suggestion has not been adopted.
    Many of the comments about this section concerned the proposal to 
amend severance procedures. The proposal notices described two possible 
severance-amendment options. Under ``Option 1,'' severance would be 
eliminated altogether by requiring the exclusive representative to 
divide matters into separate proposals or provisions when filing the 
petition, and by precluding severance at later stages of the 
proceeding. Under ``Option 2,'' severance would be available at only 
one point in the filing process, and timely severance requests would be 
automatically granted. However, if severance requests were 
automatically granted, then the exclusive representative would bear 
certain burdens to ensure that the record was sufficient to assess 
whether the severed portions were within the duty to bargain or 
consistent with law.
    One union commenter supported the portion of ``Option 1'' that 
allowed an exclusive representative to divide matters into distinct 
proposals and provisions at the petition stage, but the commenter 
desired another opportunity for severance later in the process. This 
commenter suggested that the exclusive representative's response to the 
agency's statement of position should be the later point for severance. 
This commenter supported the portion of ``Option 2'' that would make 
severance automatic because this approach would prevent severance from 
becoming its own point of contention in the proceedings.
    Another commenter said that neither severance option would 
streamline the negotiability process because, even after severance 
occurred, if only a few words from a larger proposal or provision were 
allegedly nonnegotiable, then that small portion could cause the entire 
proposal or provision to be found nonnegotiable. However, the 
consequence that the commenter identified exists regardless of 
severance procedures: Any portion of a proposal or provision may render 
the larger whole deficient. Thus, severance procedures could not 
completely eliminate that risk. If required to choose between the two 
options, this commenter preferred ``Option 1.''
    A commenter suggested that unions should state, during bargaining, 
how they would prefer proposals to be severed in the event of a 
negotiability dispute. The commenter asserted that this approach would 
highlight which portions of proposals were most important to the union 
before disputes reached the formal negotiability process. However, 
regulating the methods that parties use in their bargaining before the 
formal negotiability process begins is beyond the scope of the rule.
    An agency commenter supported both eliminating severance altogether 
and prohibiting an exclusive representative from dividing single 
proposals from the bargaining table into multiple parts--to be 
considered as distinct proposals--in a petition. This suggestion is 
impractical because, in most cases, an exclusive representative must 
choose how much of the wording from the parties' negotiations will be 
set forth in the petition. In some cases, negotiations may involve only 
a few sentences, but many cases involve multiple pages of text. It 
would be inefficient for the rule to require an exclusive 
representative to set forth in the petition all of the text from the 
bargaining table, even though some parts are entirely agreeable to both 
parties. Thus, an exclusive representative must apportion the text from 
the bargaining table into proposals for consideration in a petition.
    Another union commenter opposed making any changes to existing 
severance procedures because, according to this commenter, the Statute 
requires an informal process for presenting arguments to the Authority. 
However, the Statute is precise in delimiting the procedures for 
negotiability appeals, and there is nothing to suggest that the entire 
process should be informal. Further, it is unclear how maintaining or 
eliminating severance--which is a specialized concept in negotiability 
law--would promote informality, even if that were a goal of the 
negotiability process. This commenter also contended that if severance 
were eliminated, exclusive representatives would be unable to salvage 
negotiable portions of longer proposals in which easily isolatable 
parts were outside the duty to bargain. This criticism is

[[Page 62449]]

unwarranted because, under either Option, an exclusive representative 
could submit an easily isolated portion of disputed text as one 
proposal, and divide the remainder of the disputed text into separate 
proposals--provided that all proposals have meaning standing alone. 
Moreover, as discussed in connection with Sec.  2424.25 of the final 
rule, a modified severance procedure will be available when the 
exclusive representative files a response to the agency's statement of 
position. Another agency commenter preferred ``Option 1'' because the 
commenter said that ``Option 2'' would generate additional disputes 
over whether an exclusive representative had satisfied its burdens 
after receiving automatic severance. However, the existing process 
generates disputes about whether the Authority should grant severance. 
The idea for automatically granting severance under ``Option 2'' was 
premised on a prediction that there would be fewer disputes about 
whether exclusive representatives had satisfied their burdens after 
automatic severance than there are disputes at present over whether the 
Authority should grant severance. The FLRA adheres to its predictive 
judgment that the number of disputes will decrease if the question of 
whether to grant severance is not its own point of contention.
    After consideration of these severance comments, and as explained 
further below, the final rule incorporates portions of ``Option 1'' and 
``Option 2.'' At the petition stage, the exclusive representative will 
be responsible for dividing matters into distinct proposals or 
provisions, if it desires distinct negotiability determinations on 
particular matters standing alone. However, when the exclusive 
representative files a response to the agency's statement of position, 
there will be an opportunity to invoke a modified severance procedure. 
The ways in which that procedure has been modified are discussed in 
connection with Sec.  2424.25 of the final rule.
    The remaining comments on this section concerned Sec.  2424.22(d) 
of the proposed rule, which required exclusive representatives to 
respond--in the petition for review--to any specific claims from an 
agency's allegation concerning the duty to bargain, or from an agency 
head's disapproval (the response requirement).
    One union commenter opposed the response requirement because the 
commenter said that the requirement was overly formalistic, and many 
union representatives are not lawyers.
    An agency commenter supported the response requirement on the 
ground that it would foster a more prompt and focused process for 
resolving negotiability disputes.
    One commenter said the fifteen-day deadline for filing a petition 
would not be sufficient to respond to all of the specific claims in an 
agency's allegation concerning the duty to bargain, or an agency head's 
disapproval.
    Another union commenter stated that the response requirement would 
demand that an exclusive representative prove that a proposal was 
negotiable, rather than require that an agency prove that it was not.
    As explained further below, the final rule does not adopt Sec.  
2424.22(d) of the proposed rule, so the expressed concerns about, or 
support for, the response requirement are moot.
Further Analysis
    The heading and Sec.  2424.22(a) are the same in the final rule as 
in the proposed rule. Like the proposal notices' ``Option 1,'' Sec.  
2424.22 of the final rule adds a new paragraph--designated Sec.  
2424.22(b)--to allow for the division of matters into proposals or 
provisions. If an exclusive representative seeks a negotiability 
determination on particular matters standing alone, then the exclusive 
representative will be required to divide the matters into separate 
proposals or provisions when filing the petition. An exclusive 
representative may no longer ask the Authority for severance at the 
petition stage of the negotiability proceedings, because the exclusive 
representative is capable of separating matters into distinct proposals 
or provisions when submitting a petition to the Authority. However, the 
final rule also adopts parts of ``Option 2'' from the proposal notices. 
Specifically, the final rule does not completely eliminate severance 
from negotiability proceedings, although the exclusive representative 
may no longer ask the Authority for severance at the petition stage. In 
accordance with the description of ``Option 2'' in the proposal 
notices, a new sentence has been added to Sec.  2424.22(b) of the final 
rule that did not appear in the proposed rule. Specifically, Sec.  
2424.22(b) of the final rule states that ``the exclusive representative 
will have an opportunity to divide proposals or provisions into 
separate parts when the exclusive representative files a response under 
Sec.  2424.25.'' In other words, a modified severance procedure will be 
available at the response stage of the negotiability proceedings.
    Section 2424.22(c) of the final rule differs from the proposed rule 
in several respects. The paragraph identified as Sec.  2424.22(c)(3) in 
the proposed rule is adopted but redesignated as Sec.  2424.22(c)(2)(i) 
in the final rule. The paragraph identified as Sec.  2424.22(c)(4) in 
the proposed rule is adopted but redesignated as Sec.  2424.22(c)(3) in 
the final rule. The word ``and'' has been removed from the end of this 
paragraph because an additional paragraph has been added to Sec.  
2424.22(c) of the final rule. The paragraph identified as Sec.  
2424.22(c)(5) in the proposed rule is adopted but redesignated as Sec.  
2424.22(c)(3)(i) in the final rule, and the word ``and'' has been added 
to the end of this paragraph to introduce the final paragraph of Sec.  
2424.22(c) of the final rule.
    Section 2424.22 of the proposed rule eliminated the wording 
currently located at 5 CFR 2424.22(b)(4). Section 2424.22 of the final 
rule maintains the wording currently located at 5 CFR 2424.22(b)(4), 
but the wording is redesignated as Sec.  2424.22(c)(4) in the final 
rule. This wording is further amended so that it requires the petition 
to include any request for a hearing and the reasons supporting such 
request, ``with the understanding that the Authority rarely grants such 
requests.'' This additional proviso has been added to make parties 
aware that, as a matter of longstanding practice, the Authority very 
seldom grants hearing requests.
    Unlike the proposed rule, Sec.  2424.22 of the final rule does not 
require the exclusive representative to respond, in its petition, to 
specific bargaining obligation or negotiability claims that appear in 
an agency's written allegation concerning the duty to bargain, or an 
agency head's disapproval--although the exclusive representative is not 
prohibited from responding to those claims in its petition.
    Like the proposed rule, Sec.  2424.22 of the final rule eliminates 
the paragraph concerning severance that is currently located at 5 CFR 
2424.22(c).

Section 2424.23

Comments and Responses
    Two agency commenters opposed making the scheduling of a post-
petition conference dependent on the Authority's discretion. However, 
the existing regulation already recognized such discretion by saying 
that conferences would be scheduled only ``where appropriate.'' 5 CFR 
2424.23(a). Although the wording is being changed, the effect is the 
same. One of these commenters also stated that conferences should occur 
before the agency files its statement of position. Although the 
Authority endeavors to schedule conferences before the filing of a 
statement of position, conferences do

[[Page 62450]]

not always occur within that timeframe. The final rule does not 
guarantee that a conference will occur within a particular timeframe, 
but the Authority will continue to endeavor to schedule conferences at 
the earliest practicable date.
    A union commenter said that conferences should be held early in the 
filing process. As stated previously, the Authority will continue to 
endeavor to do so.
    Another agency commenter suggested that post-petition conferences 
should happen within thirty days or less of the Authority's meeting on 
the case. The commenter expressed concern that, because conferences may 
be held many months before a decision is issued, the Authority's 
Chairman and Members may not retain familiarity with the details of the 
conference. Because the record of a post-petition conference is created 
shortly after the conference, and that record is part of the official 
case file that the Chairman and Members review when deciding a 
negotiability appeal, the commenter's concern is unfounded. Thus, the 
final rule has not been amended based on this comment.
    OPM supported emphasizing the discretionary nature of post-petition 
conference scheduling, but asked that the regulation be amended further 
to state that the post-petition conference would generally not occur if 
no additional clarification was needed regarding the disputed wording. 
Experience has shown that, in nearly all cases, post-petition 
conferences meaningfully clarify the disputes in negotiability appeals. 
Thus, the regulation has not been amended as OPM suggested.
    OPM also suggested that the post-petition conferences should occur 
after the agency files its statement of position. OPM reasoned that the 
statement of position is the first fully elaborated explanation of the 
agency's objections to the disputed wording, and if conferences were 
held after it is filed, then the conference holder would have more 
material with which to prepare for the conference. Post-petition 
conferences primarily develop the factual record in a negotiability 
appeal and reveal whether the parties have a shared understanding of 
the wording in dispute. If the parties do not already have a shared 
understanding of the disputed wording, then the conference helps to 
develop such an understanding, or to precisely identify where the 
parties' understandings differ.
    Although previously expressed legal arguments may shape some of the 
questions at the conference, the existing process has shown that 
conference holders are able to elicit sufficient information from 
agencies during the conference to assess the nature of their objections 
and tailor the conference accordingly. Further, in cases where the 
conference occurs before the statement of position is filed, the agency 
is able to focus its arguments in the statement of position on the 
actual disputes between the parties, rather than misperceptions about 
the meaning, operation, and effects of the proposals or provisions. 
Therefore, the final rule does not aim to schedule post-petition 
conferences after the filing of the statement of position.
    One commenter suggested that the section should not be changed 
because the existing process has worked very well. The changes adopted 
in the final rule will more closely align the wording of the regulation 
and the Authority's actual practices. The essential nature and function 
of the post-petition conferences will remain the same.
    One agency commenter suggested that Sec.  2424.23(e) of the 
proposed rule should be amended to specify that the Authority may take 
other appropriate action to aid in its decision making even if a 
conference is not held. However, the proposed rule already included 
such wording because it stated that the Authority may hold a hearing or 
take other appropriate action, in the exercise of its discretion, 
instead of, or in addition to, conducting a post-petition conference. 
Section 2424.23(e) of the final rule retains this wording.
Further Analysis
    The heading of Sec.  2424.23 is the same in the final rule as in 
the proposed rule. Further, Sec.  2424.23(a) is the same in the final 
rule as in the proposed rule, with one exception. Whereas Sec.  
2424.23(a) of the proposed rule said that ``[t]he FLRA may, in its 
discretion, schedule a post-petition conference,'' Sec.  2424.23(a) of 
the final rule says that ``[t]he FLRA will, in its discretion, schedule 
a post-petition conference.'' The word ``may'' was changed to ``will'' 
to emphasize that, in the vast majority of cases, a post-petition 
conference will be scheduled. Further, the phrase ``in its discretion'' 
already permits the Authority to exercise reasonable judgment in 
deciding whether to schedule a post-petition conference in a particular 
case, so the permissive ``may'' was not needed to signal such 
discretion.
    Although the proposed rule did not include changes to Sec.  
2424.23(b)(3), the final rule adds the word ``and'' at the end of Sec.  
2424.23(b)(3), in order to introduce the following subsection. As this 
change is merely a grammatically correct way to introduce Sec.  
2424.23(b)(4), rather than a substantive change to Sec.  2424.23(b)(3), 
this technical change falls within the scope of the proposed amendments 
to Sec.  2424.23(b)(4).
    Section 2424.23(b)(4) of the proposed rule was amended, and the 
amended version appears as Sec.  2424.23(b)(4) of the final rule. 
Whereas the proposed rule addressed the status of ``any proposal or 
provision that is also involved in'' another proceeding, the final rule 
addresses the status of ``any proceedings . . . that are directly 
related to the negotiability petition.'' Thus, the scope of Sec.  
2424.23(b)(4) in the final rule is broader than Sec.  2424.23(b)(4) in 
the proposed rule. The final rule requires parties to be prepared and 
authorized to discuss the status of any proceedings directly related to 
the negotiability petition, and not merely a particular proposal or 
provision that is involved in both the negotiability process and 
another proceeding. Further, including the ``directly related'' wording 
in Sec.  2424.23(b)(4) of the final rule ensures consistency with Sec.  
2424.30, which states that the Authority will dismiss a petition for 
review when the exclusive representative has filed an unfair labor 
practice (ULP) charge or a grievance alleging a ULP, and the charge or 
grievance concerns issues ``directly related'' to the petition.
    Section 2424.23(b) of the final rule deletes the wording currently 
located at 5 CFR 2424.23(b)(5) because the subject matter currently 
addressed at 5 CFR 2424.23(b)(5)--that is, extensions of time limits--
is now addressed in Sec.  2424.23(c) of the final rule. Section 
2424.23(c) is the same in the final rule as in the proposed rule.
    Section 2424.23(d) of the final rule differs from the proposed rule 
in three respects. First, rather than referring to ``the representative 
of the FLRA,'' as the proposed rule did, the final rule refers to ``the 
FLRA representative.'' Second, the final rule clarifies that the FLRA 
will serve the record of the conference on the parties: the FLRA 
representative conducting the conference will prepare the record but 
not serve it. Third, the final rule references ``a written record,'' 
rather than ``a written statement'' as in the proposed rule. ``Record'' 
is the term the FLRA uses to refer to this document in communications 
with parties and in Authority decisions, so the rule's wording was 
changed to correspond with these other uses.
    Section 2424.23(e) is the same in the final rule as in the proposed 
rule.

Section 2424.24

Comments and Responses
    OPM and an agency commenter supported the specificity requirements

[[Page 62451]]

of the section as promoting prompt and focused resolutions to disputes.
Further Analysis
    The heading and Sec.  2424.24(a) are the same in the final rule as 
in the proposed rule, with one minor, technical change. The final rule 
uses the term ``outside the duty to bargain,'' rather than ``not within 
the duty to bargain,'' to make the sentence read more clearly and to 
use the same wording that is set forth in Sec.  2424.32(b). The change 
does not alter the sentence's meaning.
    Although the proposed rule included changes to streamline Sec.  
2424.24(b), the final rule leaves the wording located at 5 CFR 
2424.24(b) unchanged.
    Section 2424.24(c)(2) is the same in the final rule as in the 
proposed rule.
    Section 2424.24(c)(3) of the final rule differs from the proposed 
rule in several respects. The first part of Sec.  2424.24(c)(3) of the 
final rule--in the portion that begins with the word ``[s]tatus''--is 
changed from the proposed rule so that this portion of Sec.  
2424.24(c)(3) of the final rule mirrors Sec.  2424.23(b)(4) of the 
final rule. The second part of Sec.  2424.24(c)(3) of the final rule--
in the portion that begins with ``and whether''--is the same as in the 
proposed rule, except the word ``and'' has been deleted after the 
semicolon.
    The paragraph identified as Sec.  2424.24(c)(4) in the proposed 
rule is adopted but redesignated as Sec.  2424.24(c)(3)(i) in the final 
rule, and the word ``and'' has been added to the end of this paragraph 
to introduce the final paragraph of Sec.  2424.24(c) of the final rule. 
Section 2424.24 of the proposed rule eliminated the wording currently 
located at 5 CFR 2424.24(c)(4). However, Sec.  2424.24 of the final 
rule maintains the wording currently located at 5 CFR 2424.24(c)(4), 
but that wording is supplemented so that it requires the petition to 
include any request for a hearing and the reasons supporting such 
request, ``with the understanding that the Authority rarely grants such 
requests.'' This additional proviso has been added to make parties 
aware that, as a matter of longstanding practice, the Authority very 
seldom grants hearing requests.
    Like the proposed rule, Sec.  2424.24 of the final rule deletes the 
paragraph currently located at 5 CFR 2424.24(d), and the final rule 
also redesignates the paragraph currently located at 5 CFR 2424.24(e) 
as the new Sec.  2424.24(d) of the final rule.

Section 2424.25

Comments and Responses
    OPM suggested that this section specify that untimely responses to 
statements of position will not be considered, absent a demonstration 
of good cause. Existing procedures for addressing untimely responses 
have proven adequate, so this suggestion has not been adopted.
    OPM and an agency commenter supported the specificity requirements 
of this section as promoting prompt and focused resolutions to 
disputes.
    One commenter suggested that the section should clarify that a 
response is optional if the exclusive representative does not have any 
additional arguments that were not already set forth in the petition 
for review. This concern is adequately addressed by Sec.  2424.25(c) of 
the final rule, which states that the response is limited to matters 
that the agency raised in its statement of position, and that the 
exclusive representative is not obligated to repeat arguments that were 
made in the petition for review.
    One commenter specifically supported the idea of granting severance 
automatically--as suggested in the proposal notices under severance 
``Option 2''--and that commenter also advocated making severance 
available in the response. Except for one point that was already 
addressed in connection with Sec.  2424.22 about disputes over whether 
an exclusive representative satisfied its burdens related to automatic 
severance, commenters did not specifically oppose providing severance 
automatically when it was sought. To be clear, some commenters did 
advocate for eliminating severance altogether, but those commenters did 
not provide specific reasons why--if severance were retained in some 
fashion--it should not occur automatically when sought.
Further Analysis
    Section 2424.25(a) is the same in the final rule as in the proposed 
rule, except that, instead of the word ``union'' as in the proposed 
rule, the final rule uses the term ``exclusive representative.''
    Although the proposed rule included changes to streamline Sec.  
2424.25(b), the final rule leaves the wording located at 5 CFR 
2424.25(b) unchanged.
    Section 2424.25(c) is the same in the final rule as in the proposed 
rule, except for the fourth complete sentence in Sec.  2424.25(c). The 
fourth complete sentence in Sec.  2424.25(c) of the proposed rule 
stated, ``You must limit your response to the matters that the agency 
raised in its statement of position.'' By contrast, the fourth complete 
sentence in Sec.  2424.25(c) of the final rule states, ``With the 
exception of severance under paragraph (d) of this section, you must 
limit your response to the matters that the agency raised in its 
statement of position.'' Thus, this sentence in the final rule allows 
for the accomplishment of severance in the exclusive representative's 
response, but otherwise, the response is limited to the matters that 
the agency raised in its statement of position.
    Section 2424.25 of the proposed rule deleted the severance wording 
currently located at 5 CFR 2424.25(d), and the proposed rule 
redesignated the wording currently located at 5 CFR 2424.25(e) as the 
new Sec.  2424.25(d).
    As mentioned during the earlier discussion of severance in 
connection with the content of a petition for review under Sec.  
2424.22, the final rule makes a modified severance procedure available 
under Sec.  2424.25. Thus, unlike the proposed rule, Sec.  2424.25 of 
the final rule does not completely delete the severance paragraph 
currently located at 5 CFR 2424.25(d). Instead, the final rule amends 
that paragraph to allow the exclusive representative, of its own 
accord, to accomplish severance of a previously submitted proposal or 
provision. Section 2424.25(d) of the final rule explains how the 
exclusive representative may accomplish severance of its own accord and 
describes how the exclusive representative's accomplishment of 
severance must aim to satisfy the exclusive representative's burdens 
under Sec. Sec.  2424.25(c) and 2424.32. This approach is consistent 
with severance ``Option 2,'' as described in the proposal notices in 
connection with Sec.  2424.22 of the proposed rule.
    Under Sec.  2424.25(d) of the final rule, the exclusive 
representative must identify the proposal or provision that the 
exclusive representative is severing and set forth the exact wording of 
the newly severed portion(s). At that point, under the final rule, 
severance will have been accomplished, creating revised or new 
proposals or provisions. However, under the final rule, consistent with 
FLRA case law, the exclusive representative will maintain the burden of 
establishing why, despite an agency's objections, the newly severed 
proposals or provisions are within the duty to bargain or not contrary 
to law. That burden includes explaining how the newly severed proposals 
or provisions operate and stand alone with independent meaning. 
Moreover, under the final rule, if the exclusive representative 
accomplishes severance of its own accord but fails to meet the 
associated burdens under Sec.  2424.25(c) or Sec.  2424.32, then the 
Authority would dismiss the petition as to the newly severed proposals 
or provisions, based on the exclusive representative's failure

[[Page 62452]]

to provide an adequate record for a negotiability determination. See, 
e.g., NFFE, Loc. 1655, 49 FLRA 874, 878-79 (1994) (dismissing petition 
as to one provision because the record was inadequate for the Authority 
to make a negotiability determination).
    An exclusive representative must be especially attentive to its 
burdens in connection with accomplishing severance, particularly 
because a response is ordinarily an exclusive representative's last 
filing in a negotiability case. Whereas insufficiently explained 
proposals or provisions in a petition may often be clarified in the 
record of a later post-petition conference, it is unlikely (although 
not impossible) that a post-petition conference will occur after the 
filing of a response.
    Section 2424.25(e) of the final rule leaves the wording currently 
located at 5 CFR 2424.25(e) unchanged.

Section 2424.26

Comments and Responses
    OPM suggested that this section specify that untimely replies will 
not be considered, absent a demonstration of good cause. Existing 
procedures for addressing untimely replies have proven adequate, so 
this suggestion has not been adopted.
    Two commenters opposed Sec.  2424.26(b) of the proposed rule 
because that paragraph changed the time limit for filing a reply from 
fifteen days (under the existing rule) to ten days from the date of 
receipt of the exclusive representative's response. OPM supported 
shortening the time limit. As discussed further below, the final rule 
does not change the time limit.
Further Analysis
    The heading and Sec.  2424.26(a) are the same in the final rule as 
in the proposed rule. Although the proposed rule included changes to 
Sec.  2424.26(b)--concerning the time limit for filing a reply--the 
final rule leaves the wording located at 5 CFR 2424.26(b) unchanged.
    Section 2424.22(c) is the same in the final rule as in the proposed 
rule, with one exception. The sixth full sentence of Sec.  2424.22(c) 
of the final rule ends with the word ``respectively,'' which was not 
part of the proposed rule.
    Section 2424.26 of the proposed rule deleted the severance wording 
currently located at 5 CFR 2424.26(d), and the proposed rule 
redesignated the wording currently located at 5 CFR 2424.25(e) as the 
new Sec.  2424.25(d). The final rule adopts these changes in full.

Section 2424.27

Comments and Responses
    One commenter suggested that the paragraph about additional 
submissions include a time limit for when such submissions must be 
filed. This paragraph is mostly aimed at addressing unexpected 
developments that cannot be adequately discussed in the filings that 
the negotiability regulations already recognize. For that reason, it is 
unclear what event would trigger a time limit for additional 
submissions, and the commenter did not suggest any point at which to 
begin measuring such a time limit. Further, one purpose of this section 
is to allow filings even late in negotiability proceedings, if 
sufficiently important developments could affect the Authority's 
eventual decision and order. A time limit would impede that purpose. 
Thus, this suggestion has not resulted in changes to the rule.
    The proposed rule removed--from the paragraph currently located at 
the 5 CFR 2424.27--the five-day deadline for filing an additional 
submission, after receipt of an Authority order granting permission to 
file that submission. A union commenter opposed this change because the 
proposed rule did not provide an alternate deadline. As discussed 
further below, the final rule addresses this issue by requiring that 
any additional submission be filed simultaneously with the request for 
permission to file that additional submission.
    The same union commenter also characterized this paragraph as 
creating a process for third parties to submit documents for the 
Authority's consideration in a negotiability case. That is, the 
commenter believed that the paragraph concerned filings that are not 
submitted by the parties to a case. However, the commenter's 
characterization misconstrued the paragraph. Both before and after 
revisions, the beginning of the paragraph states that ``[t]he Authority 
will not consider any submission filed by any party other than those 
authorized under this part,'' and then the remainder of the paragraph 
sets forth a process for granting exceptions to that prohibition. 5 CFR 
2424.27. The reference to ``any party'' does not permit non-parties to 
employ this procedure to file submissions in a negotiability case. 
Instead, the reference to ``any party'' emphasizes that all parties to 
negotiability cases are limited to the filings expressly recognized in 
the negotiability regulations, except for additional submissions that 
the Authority grants permission to file, in accordance with this 
section. See Processing of Cases; Final Rules, 45 FR 3482, 3485 (Jan. 
17, 1980) (explaining that the purpose of the predecessor rule to Sec.  
2424.27 was to clarify that ``the Authority will not consider any 
submissions other than a petition for review, statement of position[,] 
and response . . . unless such additional submission is requested by 
the Authority[,] or the Authority in its discretion grants permission 
to file such submission''). Further, the paragraph states that a party 
must show that extraordinary circumstances justify filing an additional 
submission, and this burden reinforces that the paragraph does not 
concern filings by non-parties. A separate rule governing submissions 
from amicus curiae is located at 5 CFR 2429.9.
Further Analysis
    Section 2424.27 of the final rule adopts the heading and all of the 
wording from the proposed rule, but Sec.  2424.27 of the final rule 
also includes one additional sentence that comes from the wording 
currently located at 5 CFR 2424.27. Specifically, the additional 
sentence in the final rule that was not present in the proposed rule 
states, ``The additional submission must be filed with the written 
request.'' The ``written request'' in this additional sentence is a 
written request to file an additional submission in a negotiability 
proceeding based on a showing of extraordinary circumstances.

Section 2424.30

Comments and Responses
    One union commenter and one agency commenter supported the proposed 
clarifications in this section about when a grievance alleging a ULP 
would be considered administratively resolved. These commenters stated 
that the proposed rule identified all of the circumstances that, to 
their knowledge, could be considered an administrative resolution that 
would trigger the thirty-day deadline for an exclusive representative 
to refile a directly related negotiability petition that was previously 
dismissed without prejudice. The final rule adopts these clarifications 
from the proposed rule in full.
    The same union commenter suggested that, because this section would 
now list the possible administrative resolutions for a grievance 
alleging a ULP, the section should also list the possible 
administrative resolutions for a ULP charge that prompted the dismissal 
of a negotiability petition without prejudice. The commenter should 
refer to the ULP regulations in part 2423 for guidance about potential 
administrative

[[Page 62453]]

resolutions of ULP charges. The final rule does not repeat information 
from part 2423.
    An agency commenter suggested that Sec.  2424.30(b)(2) of the 
proposed rule state that where an agency makes only bargaining 
obligation claims, and not negotiability claims, those bargaining 
obligation claims will not be resolved through the negotiability 
process. The clarification that this commenter sought is already 
present in Sec.  2424.2(d)'s definition of a petition for review, so 
this suggestion has not resulted in changes to Sec.  2424.30 of the 
final rule.
    OPM contended that the Authority should not automatically dismiss 
petitions for review without prejudice when an exclusive representative 
has filed a ULP charge or grievance alleging a ULP, and the charge or 
grievance concerns issues directly related to the petition for review. 
Instead, OPM advocated a case-by-case assessment of which forum would 
most expeditiously resolve the parties' disputes. According to OPM, if 
the Authority determines that the negotiability process would provide 
the most expeditious resolution, then the Authority should not dismiss 
a petition for review (without prejudice) while the parties' directly 
related disputes proceed toward resolution in another forum. When the 
Authority amended its negotiability regulations to allow for the 
resolution of bargaining obligation disputes that accompany 
negotiability disputes, the Authority declined to adopt a commenter's 
suggestion that, if directly related disputes were filed in multiple 
forums, then an exclusive representative should have the right to 
determine which forum proceeds to a resolution first. On that point, 
the Authority stated that ULP ``proceedings are, in these situations, 
better suited to resolving the entire dispute.'' Negotiability 
Proceedings, 63 FR 66405, 66410 (Dec. 2, 1998). The Authority explained 
further:

    [W]ith the sole exception of compelling need claims . . . all 
bargaining obligation and negotiability claims may be adjudicated in 
[a ULP] proceeding. Further, unless excluded from the scope of the 
parties' grievance procedure by agreement, alleged [ULPs] may be 
resolved under such negotiated procedures. Thus, with one exception, 
dismissing petitions for review where [ULP] charges have been filed 
does not jeopardize a party's ability to obtain adjudication of all 
claims. In addition, . . . with the exception of orders to bargain, 
remedies available in [ULP] proceedings under 5 U.S.C. 7118(a)(7) 
are not . . . available in Authority decisions and orders issued 
under this part. Accordingly, in situations where an exclusive 
representative has filed [a ULP] charge, requiring adjudication in a 
negotiability proceeding would deprive a prevailing exclusive 
representative of such remedies.

    Id. The Authority continues to adhere to those views about 
resolving cases that involve both bargaining obligation and 
negotiability disputes. Moreover, a case-by-case assessment would leave 
the decision-makers in other forums--specifically, the General Counsel 
and employees of the Office of the General Counsel, as well as 
arbitrators--uncertain about whether to process disputes before them 
that are directly related to a negotiability petition for review. For 
all these reasons, the final rule does not adopt OPM's suggestion.
    OPM also suggested that the section state that if an exclusive 
representative files a ULP charge that solely concerns an allegation of 
nonnegotiability, then the Authority may choose to process the ULP 
charge as a negotiability appeal. However, OPM did not provide any 
legal authority to establish that an exclusive representative's choice 
of forum may be overruled in that manner, so this suggestion has not 
been adopted.
Further Analysis
    The heading; Sec.  2424.30(a)--including subsections (a)(1), (2), 
(3), and (4); and Sec.  2424.30(b) and (b)(1) are the same in the final 
rule as in the proposed rule.
    Section 2424.30(b)(2) of the final rule differs from the proposed 
rule only in its first sentence. This sentence concerns how the 
Authority will process a petition for review when an exclusive 
representative has not already filed a related ULP charge or a 
grievance alleging a ULP, but a bargaining obligation dispute exists in 
connection with the petition for review. The first sentence of Sec.  
2424.30(b)(2) of the proposed rule stated, in pertinent part, ``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 . . . .'' In contrast, the first sentence of Sec.  
2424.30(b)(2) of the final rule states, in pertinent part, ``The 
exclusive representative may have an opportunity to 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 . . . .'' This sentence was changed 
to avoid implying that, if an exclusive representative files a petition 
that involves a bargaining obligation dispute, then the exclusive 
representative is entitled to file a ULP charge or grievance alleging a 
ULP, irrespective of the ordinary legal and contractual conditions that 
would otherwise apply to these filings. Thus, this portion of the first 
sentence of Sec.  2424.30(b)(2) of the final rule uses the phrase ``may 
have an opportunity to file'' to indicate that, if an exclusive 
representative files a ULP charge or grievance as described in this 
subsection, then those filings would be subject to all of the otherwise 
applicable conditions that ordinarily apply to such filings--such as, 
for example, time limits. The remainder of Sec.  2424.30(b)(2) of the 
final rule is the same as the proposed rule.

Section 2424.31

Comments and Responses
    One commenter disagreed that this section should allow for hearings 
or other appropriate action to resolve bargaining obligation disputes 
since this part of the Authority's Regulations concerns negotiability 
proceedings. The procedures of this section would apply only to 
bargaining obligation disputes that may be resolved in a negotiability 
appeal because they are accompanied by negotiability disputes 
concerning the same proposal or provision.
    A union commenter stated that, to the extent that the final rule is 
intended to preclude the consideration of parties' views about whether 
a hearing is needed, the commenter opposes that change. The final rule 
is not intended to preclude the consideration of the parties' views, 
and none of the changes to the rule expressly state or imply that the 
Authority will not consider the parties' views. Thus, this concern is 
misplaced.
Further Analysis
    Section 2424.31 is the same in the final rule as in the proposed 
rule.

Section 2424.32

Comments and Responses
    An agency commenter recommended adding the phrase ``or government-
wide regulation'' after the phrase ``contrary to law'' in Sec.  
2424.32(a) and (b). This change has not been made because this 
section's use of the phrase ``contrary to law'' is intended to 
encompass all authorities with the force and effect of law--not merely 
statutes.
    A union commenter opposed the newly created burden under Sec.  
2424.32(c) of the proposed rule that each party must 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. The commenter noted that Sec.  2424.32(c) cautioned that the 
Authority's decision may be adverse to

[[Page 62454]]

a party that fails to satisfy this burden to sufficiently explain, and 
the commenter contended that an adverse consequence is an unfair 
penalty for non-lawyer union representatives who may not phrase 
arguments in the most compelling way. This commenter viewed Sec.  
2424.32(c) as an attempt to punish parties that do not provide 
sophisticated analyses. However, the commenter's criticism is unfounded 
because the burden in Sec.  2424.32(c) is not concerned with 
sophistication; it is concerned with sufficiency. Parties must provide 
the Authority with the details necessary to understand their positions, 
and parties must be aware that a failure to provide those details may 
adversely affect them. Section 2424.32(c) essentially warns parties not 
to expect the Authority to fill in gaps in order to fully develop, or 
make sense of, incompletely explained positions. Rather, parties must 
be diligent in setting forth their understandings on all relevant 
facets of the meaning, operation, and effects of a proposal or 
provision, as well as the associated legal implications.
Further Analysis
    The heading and Sec.  2424.32(a) are the same in the final rule as 
in the proposed rule.
    Section 2424.32(b) of the final rule differs from the proposed rule 
in one respect. Whereas Sec.  2424.32(b) of the proposed rule stated 
that ``[t]he 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''; Sec.  
2424.32(b) of the final rule states that ``[t]he agency has the burden 
of explaining the agency's understanding of the meaning, operation, and 
effects of the proposal or provision, if the agency disagrees with the 
exclusive representative's explanations.'' Unlike the proposed rule, 
Sec.  2424.32(b) of the final rule assigns the agency the burden of 
explaining the agency's understanding of meaning, operation, and 
effects because the agency has this burden of explanation only when the 
agency disagrees with the explanations that the exclusive 
representative already provided. In those situations where the agency 
disagrees with the exclusive representative's explanations, the 
agency's burden would be to explain the agency's understanding, so as 
to distinguish that understanding from the exclusive representative's 
previous explanations.
    The wording in Sec.  2424.32(b) of the final rule is consistent 
with Sec.  2424.24(c)(2)(i) of the final rule, in which agencies are 
instructed that their statements of positions must include, ``[i]f 
different from the exclusive representative's position, an explanation 
of the meaning the agency attributes to the proposal or provision and 
the reasons for disagreeing with the exclusive representative's 
explanation of meaning.'' 5 CFR 2424.24(c)(2)(i) (emphasis added).
    Further, Sec.  2424.32(b) of the final rule is consistent with 
Authority precedent that when the parties disagree about a proposal's 
meaning, then the Authority relies on the exclusive representative's 
explanation of the proposal's meaning to assess whether the proposal is 
within the duty to bargain, as long as the exclusive representative's 
explanation comports with the proposal's wording. E.g., Nat'l Nurses 
United, 70 FLRA 306, 307 (2017).
    Moreover, Sec.  2424.32(b) of the final rule accounts for cases 
where an exclusive representative explains a proposal's meaning, but 
that explanation does not comport with the proposal's wording. Under 
those circumstances, if the agency disagrees with the exclusive 
representative's explanation, then the agency bears the burden of 
explaining (1) the agency's understanding of the proposal and how that 
understanding comports with the proposal's wording; and (2) why the 
exclusive representative's alternate explanation does not comport with 
the proposal's wording.
    The remainder of Sec.  2424.32(b) of the final rule is the same as 
the proposed rule.
    Section 2424.32(c); (d)--including subsections (d)(1), (d)(1)(i), 
(d)(1)(ii), and (d)(2); and (e) of the final rule are the same as the 
proposed rule.

Section 2424.40

    None of the public comments addressed Sec.  2424.40. Section 
2424.40 is the same in the final rule as in the proposed rule, except 
for one phrase that has been added in the final rule. The second 
complete sentence of Sec.  2424.40(b) in the proposed rule stated, ``If 
the Authority finds that the duty to bargain does not extend to the 
proposal, then the Authority will dismiss the petition for review.'' In 
Sec.  2424.40(b) of the final rule, the second half of this sentence 
states, ``then the Authority will dismiss the petition for review as to 
that proposal.'' This change makes Sec.  2424.40(b) of the final rule 
consistent with Sec.  2424.40(c) of the final rule, which states, ``If 
the Authority finds that a provision is contrary to law, rule, or 
regulation, then the Authority will dismiss the petition for review as 
to that provision.'' 5 CFR 2424.40(c) (emphasis added). Further, this 
change is consistent with the Authority's longstanding practice. E.g., 
AFGE, Loc. 3509, 46 FLRA 1590, 1623-24 (1993) (dismissing petition for 
review as to seven proposals, but ordering agency to bargain concerning 
one proposal).

Section 2424.41

    None of the public comments addressed Sec.  2424.41. Section 
2424.41 is the same in the final rule as in the proposed rule, with one 
exception. Section 2424.41 of the proposed rule stated that an 
exclusive representative must report to the appropriate Regional 
Director an agency's failure to comply with an order issued in 
accordance with Sec.  2424.40 ``within thirty (30) days following 
expiration of the 60-day period under 5 U.S.C. 7123(a).'' By contrast, 
Sec.  2424.41 of the final rule reverts to wording currently located at 
5 CFR 2424.41. Thus, Sec.  2424.41 of the final rule states that an 
exclusive representative must report an agency's failure to comply with 
an order ``within a reasonable period of time following expiration of 
the 60-day period under 5 U.S.C. 7123(a).''

Section 2424.50

Comments and Responses
    Two union commenters opposed changing the regulatory definition of 
compelling need in a way that would permit the Authority to find that 
circumstances other than those listed in the illustrative examples 
demonstrated the existence of compelling need. These same commenters 
opposed adding any additional examples to the illustrative criteria.
    One commenter provided six additional examples to consider adding 
to the illustrative criteria.
    OPM supported changing the regulatory definition of compelling need 
in a way that would permit the Authority to find that circumstances 
other than those listed in the illustrative criteria demonstrated the 
existence of compelling need.
    OPM requested that the section specify that compelling need 
arguments may be merely one of several grounds for an allegation of 
nonnegotiability. OPM also asked that the section include additional 
explanation about what constitutes an agency rule or regulation. These 
requests were not germane to the definition of a compelling need--which 
is the subject of this section--so they were not incorporated into the 
final rule.
    OPM suggested removing the reference to ``the accomplishment of the 
mission or the execution of functions of

[[Page 62455]]

the agency or primary national subdivision'' from Sec.  2424.50(a) of 
the proposed rule. As no rationale was offered for deleting that 
phrase, it has been retained in the final rule.
    One agency commenter argued that all agency rules that have general 
applicability to the agency's workforce should demonstrate a compelling 
need. This argument is rejected because it would allow agencies to 
render topics nonnegotiable merely by issuing a regulation of general 
applicability. This same commenter argued that executive orders should 
qualify as ``mandate[s] to the agency or primary national subdivision 
under law or other outside authority, which implementation is 
essentially nondiscretionary in nature,'' under Sec.  2424.50(c). 
Nothing in the rule prevents a party from making that argument in the 
context of a concrete dispute, but the final rule does not include a 
blanket statement to that effect.
    The Department of Veterans Affairs argued that agency rules and 
regulations concerning pandemics, epidemics, or other similar emergency 
situations should be treated as rules and regulations supported by a 
compelling need, particularly because of the Department's healthcare 
responsibilities. The Department may advance that argument in the 
context of a concrete dispute, but the final rule does not include a 
blanket statement to that effect.
    Ultimately, the comments on additional examples to add to Sec.  
2424.50 were varied and conflicting. The final rule retains the 
examples already set forth at 5 CFR 2424.50. However, as explained 
further below, the final rule does not include any additional examples 
in the illustrative criteria. In addition, the final rule does not 
include a phrase that would recognize the Authority's ability to 
determine that a compelling need exists based on circumstances other 
than those in the illustrative criteria.
Further Analysis
    Section 2424.50 of the final rule differs from the proposed rule in 
several respects. Like Sec.  2424.50 of the proposed rule, Sec.  
2424.50 of the final rule adds to the middle of the introductory 
paragraph the following wording that does not currently appear in 5 CFR 
2424.50: ``the rule or regulation was issued by the agency or any 
primary national subdivision of the agency, and.'' This additional 
wording recognizes requirements from Section 7117(a)(3) of the 
Statute--concerning agency rules or regulations for which a compelling 
need exists--as part of Sec.  2424.50 of the final rule, which provides 
a regulatory definition for compelling need.
    After the concluding word ``and'' in the additional wording 
discussed in the preceding paragraph, Sec.  2424.50 of the proposed 
rule stated that ``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.'' By contrast, after the 
concluding word ``and'' in the additional wording discussed in the 
preceding paragraph, Sec.  2424.50 of the final rule states that ``the 
agency demonstrates that the rule or regulation satisfies one of the 
following illustrative criteria.'' As such, the final rule departs from 
the proposed rule in that the final rule does not state that the 
Authority may determine that ``other circumstances establish a 
compelling need for the rule or regulation.'' Further, the final rule 
changes the phrase ``one or more of the following illustrative 
criteria'' from the proposed rule to simply ``one of the following 
illustrative criteria.'' This change was made because a compelling need 
exists if any one of the illustrative criteria is satisfied, and it 
will ordinarily be unnecessary for the Authority to determine that a 
rule or regulation satisfies multiple illustrative criteria. However, 
this change does not preclude the possibility that a rule or regulation 
could satisfy more than one of the illustrative criteria.
    In connection with Sec.  2424.50, the proposal notices solicited 
suggestions for more illustrative criteria that could be added to the 
criteria currently located at 5 CFR 2424.50. Although the FLRA 
appreciates the time that commenters dedicated to suggesting additional 
illustrative criteria, the final rule does not adopt any additional 
criteria. Under the final rule, the illustrative criteria currently 
located at 5 CFR 2424.50(a), (b), and (c) remain unchanged.

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 final 
rule will not have a significant impact on a substantial number of 
small entities, because this final rule applies only to Federal 
agencies, Federal employees, and labor organizations representing those 
employees.

Executive Order 12866, Regulatory Review

    The FLRA is an independent regulatory agency and thus is not 
subject to the requirements of E.O. 12866 (58 FR 51735, Sept. 30, 
1993).

Executive Order 13132, Federalism

    The FLRA is an independent regulatory agency and thus is not 
subject to the requirements of E.O. 13132 (64 FR 43255, Aug. 4, 1999).

Unfunded Mandates Reform Act of 1995

    This final rule 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 final 
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.

    For the reasons stated in the preamble, the Federal Labor Relations 
Authority amends 5 CFR part 2424 as set forth below:

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 
October 12, 2023.


0
3. Amend Sec.  2424.2 by revising paragraphs (a), (c)(2) and (c)(3), 
adding

[[Page 62456]]

paragraphs (c)(4) through (7), and revising paragraphs (copyright) and 
(f). The revisions and additions read as follows:


Sec.  2424.2  Definitions.

    In this part, the following definitions apply:
    (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 or because the 
effect of the change is de minimis; and
    (3) The exclusive representative is attempting to bargain at the 
wrong level of the agency.
* * * * *
    (c) * * *
    (2) 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 a Government-wide rule or regulation; and
    (7) 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.
* * * * *

0
4. Revise Sec.  2424.10 to read as follows:


Sec.  2424.10  Collaboration and Alternative Dispute Resolution 
Program.

    Where an exclusive representative and an agency are unable to 
resolve disputes that arise under this part, they may request 
assistance from the Collaboration and Alternative Dispute Resolution 
(CADR) Program or the Office of Case Intake and Publication (CIP), 
which will refer requests to the CADR Program. Upon request, as 
resources permit, and as agreed upon by the parties, CADR 
representatives will attempt to assist the parties to resolve these 
disputes. Parties seeking information or assistance under this part may 
call the CADR Office at (771) 444-5802 or the Office of CIP at (771) 
444-5805, or write those offices at 1400 K Street NW, Washington, DC 
20424-0001. A brief summary of CADR activities is available on the 
internet at www.flra.gov.


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 
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 must be in writing and must be served in 
accord with Sec.  2424.2(g).
    (copyright) 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) 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 the petition may 
be filed at any time, subject to the following:
    (1) If the agency serves a written allegation on the exclusive 
representative more than ten (10) days after receiving a written 
request for such allegation, then the petition must be filed within 
fifteen (15) days after the date of service of that allegation on the 
exclusive representative.
    (2) [Reserved]


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. However, 
the exclusive representative will have an opportunity to divide 
proposals or provisions into separate parts when the exclusive 
representative files a response under Sec.  2424.25.
    I 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

[[Page 62457]]

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 that you rely on 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);
    (i) 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;
    (ii) [Reserved]
    (3) 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;
    (i) 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; and
    (ii) [Reserved]
    (4) Any request for a hearing before the Authority and the reasons 
supporting such request, with the understanding that the Authority 
rarely grants such requests.


0
8. Revise Sec.  2424.23 to read as follows:


Sec.  2424.23  Post-petition conferences; conduct and record.

    (a) Scheduling a post-petition conference. The FLRA will, 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) Conduct of conference. The post-petition conference will be 
conducted with representatives of the exclusive representative and the 
agency, who must be prepared and authorized to discuss, clarify, and 
resolve matters including the following:
    (1) The meaning of the proposal or provision in dispute;
    (2) Any disputed factual issue(s);
    (3) Negotiability dispute objections and bargaining obligation 
claims regarding the proposal or provision; and
    (4) Status of any proceedings--including an unfair labor practice 
charge under part 2423 of this subchapter, a grievance under the 
parties' negotiated grievance procedure, or an impasse procedure under 
part 2470 of this subchapter--that are directly related to the 
negotiability petition.
    [euro] 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 statement of position and any subsequent filings.
    (d) Record of the conference. After the post-petition conference 
has been completed, the FLRA representative will prepare, and the FLRA 
will serve on the parties, a written record 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 
matter[euro]
    (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. Revise Sec.  2424.24 to read as follows:


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 outside 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. Unless the time limit for filing has 
been extended pursuant to Sec.  2424.23 or part 2429 of this 
subchapter, 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.
    I Content. You must file your statement of position 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 statement 
electronically through use of the eFiling system on the FLRA's website 
at www.flra.gov. That website also provides copies of statement forms. 
You must date your statement, unless you file it electronically through 
use of the eFiling system. And, regardless of how you file your 
statement, your statement must:
    (1) Withdraw either:
    (i) The allegation that the duty to bargain in good faith does not 
extend to the exclusive representative's proposal, or
    (ii) The disapproval of the provision under 5 U.S.C. 7114(c); or
    (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:
    (i) If different from the exclusive representative's position, an 
explanation of the meaning the agency attributes to the proposal or 
provision and the reasons for disagreeing with the exclusive 
representative's explanation of meaning;
    (ii) If different from the exclusive representative's position, an 
explanation of how the proposal or provision would work, and the 
reasons for disagreeing with the exclusive representative's 
explanation;
    (3) Status of any proceedings--including an unfair labor practice 
charge under part 2423 of this subchapter, a grievance under the 
parties' negotiated grievance procedure, or an impasse procedure under 
part 2470 of this subchapter--that are directly related to the 
negotiability petition, and whether any other petition for review has 
been filed concerning a

[[Page 62458]]

proposal or provision arising from the same bargaining or the same 
agency head review;
    (i) If they have not already been provided with the petition, 
documents relevant to the status updates, including a copy of any 
related unfair labor practice charge, grievance, request for impasse 
assistance, or other petition for review; and
    (ii) [Reserved]
    (4) Any request for a hearing before the Authority and the reasons 
supporting such request, with the understanding that the Authority 
rarely grants such requests.
    (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 paragraphs (a) through (c) of Sec.  2424.25 to read as 
follows:


Sec.  2424.25  Response of the exclusive representative; purpose; time 
limits; content; severance; 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 exclusive representative disagrees with any facts or 
arguments in the agency's statement of position.
    (b) Time limit for filing. Unless the time limit for filing has 
been extended pursuant to Sec.  2424.23 or part 2429 of this 
subchapter, 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.
    (copyright) 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. 
With the exception of severance under paragraph (d) of this section, 
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) Severance. The exclusive representative may, of its own accord, 
accomplish the severance of a previously submitted proposal or 
provision. To accomplish severance, the exclusive representative must 
identify the proposal or provision that the exclusive representative is 
severing and set forth the exact wording of the newly severed 
portion(s). Further, as part of the exclusive representative's 
explanation and argument about why the newly severed portion(s) are 
within the duty to bargain or not contrary to law, the exclusive 
representative must explain how the severed portion(s) stand alone with 
independent meaning, and how the severed portion(s) would operate. The 
explanation and argument in support of the severed portion(s) must meet 
the same requirements for specific information set forth in 
paragra(copyright)(c) of this section, and must satisfy the exclusive 
representative's burdens under Sec.  2424.32.
* * * * *

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. Unless the time limit for filing has 
been extended pursuant to Sec.  2424.23 or part 2429 of this 
subchapter, within fifteen (15) 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), respectively. 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 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. The additional submission must be filed 
with the written request. 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

[[Page 62459]]

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 have an opportunity to 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 heading, introductory text, and 
paragraph (copyright) 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 agency's understanding of 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, or 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 assertio(copyright)(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 representative's refiling of the 
petition for review), and granting the petition for review and 
directing bargaining 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 as to that proposal. 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.
    (d) 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

[[Page 62460]]

such provision in whole or in part as appropriate. If the Authority 
finds that a provision is contrary to law, rule, or regulation, then 
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 a reasonable period of time 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 the rule or regulation satisfies one 
of the following illustrative criteria:
* * * * *

    Approved: August 31, 2023.
Rebecca J. Osborne,
Federal Register Liaison, Federal Labor Relations Authority.
[FR Doc. 2023-19269 Filed 9-11-23; 8:45 am]
BILLING CODE 7627-01-P