03-15273. Notice of Opportunity to Submit Amicus Curiae Briefs in an Unfair Labor Practice Proceeding Pending Before the Federal Labor Relations Authority

AGENCY:

Federal Labor Relations Authority.

ACTION:

Notice of the opportunity to file briefs as amici curiae in a proceeding before the Federal Labor Relations Authority in which the Authority has been asked to modify its standard for determining whether an agency has a statutory obligation to notify and bargain with a union regarding changes in conditions of employment that are substantively negotiable.

SUMMARY:

The Federal Labor Relations Authority provides an opportunity for all interested persons to file briefs as amici curiae on a significant issue in a case pending before the Authority. The Authority is considering the case pursuant to its responsibilities under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101-7135 (the Statute). The issue concerns whether the Authority should modify its standard for determining whether an agency has a statutory obligation to notify and bargain with a union regarding changes in conditions of employment that are substantively negotiable.

DATES:

Briefs submitted in response to this notice will be considered if received by mail or personal delivery in the Authority's Case Control Office by 5 p.m. on Thursday, July 17, 2003. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted.

FORMAT: All briefs shall be captioned “Social Security Administration, Office of Hearings and Appeals, Charleston, South Carolina, Case No. AT-CA-01-0093.” Parties must submit five copies, one of which must contain an original signature, of each amicus brief, on 81/2 by 11 inch paper. Briefs must include a signed and dated statement of service that complies with the Authority's regulations showing service of one copy of the brief on all counsel of record or other designated representatives. 5 CFR 2429.27(a) and (c).

The designated representatives in Social Security Administration, Office of Hearings and Appeals, Charleston, South Carolina, Case No. AT-CA-01-0093, are John J. Barrett, Agency Representative, Social Security Administration, 6401 Security Boulevard, Room G-H-10, West High Rise Building, Baltimore, MD 21235-6401; J. E. Van Slate, Union Representative, AALJ, IFPTE, c/o Social Security Administration, Office of Hearings and Appeals, 200 Meeting Street, Suite 202, Charleston, SC 29401; Tameka West, Counsel for the General Counsel, Federal Labor Relations Authority, Marquis Two Tower, Suite 701, 285 Peachtree Center Avenue, Atlanta, GA 30303-1270.

ADDRESSES:

Mail or deliver briefs to Gail D. Reinhart, Director, Case Control Office, Federal Labor Relations Authority, Docket Room, Suite 201, 1400 K St. NW., Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT:

Gail D. Reinhart, Director, Case Control Office, Federal Labor Relations Authority, [phone].

SUPPLEMENTARY INFORMATION:

The case presenting the issue on which amicus briefs are being solicited is before the Authority on exceptions to a recommended decision and order of an Administrative Law Judge (Judge) resolving unfair labor practice allegations.

A. Summary of Current Authority Precedent

To assist interested persons in responding, the Authority offers the following summary of current Authority precedent. The cases cited below are not intended as a complete description of Authority precedent in this area, and amici are encouraged to address any federal or private sector precedent deemed applicable.

Under section 7116(a)(1) and (5) of the Statute, prior to implementing a change in conditions of employment of bargaining unit employees, an agency is required to provide the exclusive representative with notice of the change and the opportunity to bargain over those aspects of the change that are within the duty to bargain. U.S. Army Corps of Eng'rs, Memphis Dist., 53 FLRA 79, 81 (1997). Where an agency institutes a change in a condition of employment and the change is itself negotiable, the extent of the impact of the change on unit employees has not been a factor or element in the analysis of whether an agency is obligated to bargain. 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995). Conversely, where the substance of a change is not itself negotiable, an agency must nonetheless give the exclusive representative an opportunity to bargain over the impact and implementation of the change, provided that the change has more than a de minimis effect on unit employees' conditions of employment. AFGE, Local 940, 52 FLRA 1429, 1436 (1997).

B. The Judge's Decision

The Judge found that the agency violated section 7116(a)(1) and (5) of the Statute by refusing to bargain with the Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO (Union) over the Agency's reduction in the number of reserved parking spaces for the Administrative Law Judges (ALJs) from 6 to 2. Relying on Authority precedent, the Judge found that providing all 6 ALJs at its Charleston location with reserved, assigned parking was a condition of employment, and that the Agency was obligated to give the Union notice and an opportunity to negotiate the substance of any proposed change of this established condition of employment. In addition, the Judge stated that since the issue of employee parking is substantively negotiable, it was unnecessary to decide whether the impact of the change was more than de minimis. However, the Judge noted that if the agency were only obligated to bargain over impact and implementation, “there might be grave doubt that the impact was more than de minimis.” Judge's Decision at 12. The Judge found that the record did not show any difficulty by employees finding non-reserved parking in the building after the change was implemented. As a remedy, the Judge recommended that the agency restore the status quo ante by providing 6 reserved parking spaces to the ALJs.

C. Agency's Exceptions

The Agency filed exceptions, contending in part that the Authority should apply the de minimis doctrine that has been used for impact and implementation bargaining to changes that are substantively negotiable. The Agency asserts that the Authority adopted the de minimis doctrine in line with the mandate of section 7101 of the Statute that the Statute should be interpreted consistent with the requirement of an effective and efficient Government, and that this same mandate should apply to substantive as well as impact and implementation bargaining.

D. General Counsel's Opposition

The General Counsel requests the Authority to reject the Agency's request to apply the de minimis standard to substantively negotiable issues, such as the one in this case. The General Counsel maintains that the Judge's decision is consistent with Authority precedent addressing changes in parking as substantively negotiable.

E. Questions on Which Briefs are Solicited

Since the issue raised by the Agency in this case is likely to be of concern to the federal sector labor-management relations community in general, the Authority finds it appropriate to provide for the filing of amicus briefs addressing the following questions:

What standard should the Authority apply in determining an agency's statutory obligation to bargain when an agency institutes changes in conditions of employment that are substantively negotiable? Why? Should the Authority eliminate the distinction between substantively negotiable changes, where the de minimis standard has not been applied, and changes that are not substantively negotiable, where the de minimis standard has been applied? Why?

For the Authority.

Dated: June 12, 2003.

Gail D. Reinhart,

Director, Case Control Office.