19:0746(92)CA - Army Engineer Center And Fort Belvoir and Army -- 1985 FLRAdec CA



[ v19 p746 ]
19:0746(92)CA
The decision of the Authority follows:


 19 FLRA No. 92
 
 U.S. ARMY ENGINEER CENTER AND
 FORT BELVOIR
 Respondent
 
 and
 
 U.S. DEPARTMENT OF THE ARMY
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1052
 Charging Party
 
                                       Case Nos. 3-CA-2908 
                                                 3-CA-20133 
                                                 13 FLRA 707
 
                      SUPPLEMENTAL DECISION AND ORDER
 
    On January 31, 1984, the Authority issued its Decision and Order in
 the above-entitled proceeding, concluding in Case No. 3-CA-20133 that
 the Department of the Army had violated section 7116(a)(1) of the
 Federal Service Labor-Management Relations Statute by improperly
 interfering with the bargaining relationship between Fort Belvoir and
 the Charging Party.  The Authority further concluded in Case No.
 3-CA-2908 that the U.S. Army Engineer Center and Fort Belvoir had not
 violated the Statute by acting solely at the direction of the Department
 of the Army in refusing to negotiate over proposals submitted by the
 Charging Party in connection with a new performance appraisal system.
 In reaching its decision, the Authority found it necessary to resolve a
 "compelling need" issue in the context of the unfair labor practice
 proceeding.
 
    On review, the U.S. Court of Appeals for the Fourth Circuit
 determined that compelling need issues can only be resolved through the
 filing of a negotiability appeal pursuant to the procedures set forth in
 section 7117(b) of the Statute and may not be resolved in an unfair
 labor practice proceeding under section 7118 of the Statute.
 Accordingly, the Court reversed the judgment of the Authority and
 remanded the case for further proceedings consistent with its opinion.
 U.S. Army Engineer Center and Fort Belvoir v. FLRA, No. 84-1327 (4th
 Cir. May 23, 1985).  Subsequently, on July 26, 1985, the Court denied
 the Authority's petition for a rehearing in the matter and, as
 applicable to the Authority's finding of a violation of the Statute,
 directed the Authority to dismiss the unfair labor practice proceeding.
 
    The Authority accepts the Court's opinion as the law of the case and,
 consistent with that opinion, shall order that the complaint in Case No.
 3-CA-20133 be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20133 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., August 15, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member