26:0217(28)NG - NFFE Local 476 and Army, Army Electronics Research and Development Command, Fort Monmouth, NJ -- 1987 FLRAdec NG



[ v26 p217 ]
26:0217(28)NG
The decision of the Authority follows:


 26 FLRA No. 28
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 476
 Union
 
 and
 
 DEPARTMENT OF THE ARMY 
 U.S. ARMY ELECTRONICS RESEARCH 
 AND DEVELOPMENT COMMAND 
 FORT MONMOUTH, NEW JERSEY
 Agency
 
                                            Case No. 0-NG-799
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed by the Union under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  It concerns the
 negotiability of a provision disapproved by the Agency head pursuant to
 section 7114(c) of the Statute.  We find this provision to be
 negotiable.
 
                              II.  Provision
 
          Employees against whom action (regarding their alleged
       unacceptable performance) is proposed are entitled to the
       following:
 
          (1) 60 days advance written notice of the proposed action . . .
       .
 
          (Only the underlined portion is in dispute.)
 
                             III.  Background
 
    Following an impasse in negotiations between the parties over the
 performance appraisal system, the Federal Service Impasses Panel
 directed the Agency to adopt the provision here in dispute.  Department
 of the Army, U.S. Army Electronics Research and Development Command,
 Fort Monmouth, New Jersey and Local 476, National Federation of Federal
 Employees, 82 FSIP 78 (1982).  No question of consistency with law had
 been raised before the Panel.  The disputed provision was thereafter
 disapproved by the Headquarters, Army Materiel Development and Readiness
 Command, which had been delegated the authority by the Department of the
 Army to review the provision under section 7114(c) of the Statute.
 
    The Union filed an unfair labor practice charge and a negotiability
 appeal based upon that disapproval and elected to have the dispute
 processed under the unfair labor practice procedures first.  The parties
 stipulated to the Authority that the only issue raised in the unfair
 labor practice complaint was whether an agency is preempted from
 exercising its statutory obligation under section 7114(c) of the Statute
 when a subordinate activity is directed by a Panel Order to incorporate
 a provision into its contract.  Without reaching the merits of the
 negotiability issue, the Authority decided the stipulated issue in the
 negative and dismissed the complaint, relying on precedent in which the
 Authority had previously held that an agency head does not violate the
 Statute merely by reviewing provisions imposed by the Panel.  U.S.
 Department of Army, Headquarters, and DARCOM HQ, 17 FLRA 84 (1985).
 
    The Union sought review of that dismissal in the United States Court
 of Appeals for the District of Columbia Circuit.  In National Federation
 of Federal Employees v. FLRA, 789 F.2d 944 (D.C. Cir. 1986), the court
 noted that it had recently affirmed the Authority's holding that agency
 heads have the authority under section 7114(c) to review Panel orders
 issued under section 7119.  See American Federation of Government
 Employees v. FLRA, 778 F.2d 850 (D.C. Cir. 1985), affirming
 Interpretation and Guidance, 15 FLRA 564 (1984).  However, the court
 further found that the Authority should have resolved whether the agency
 head erred in applying his disapproval power to the particular Panel
 provision at issue.  The court remanded the case to the Authority to
 allow the General Counsel to pursue the charge with the Authority.
 
    Subsequently, the case was transferred to an Administrative Law Judge
 of the Authority.  In response to the Judge's request for the parties'
 positions, both the General Counsel and the Union decided not to pursue
 the case.  The Judge therefore dismissed the complaint, and no
 exceptions were taken to the Judge's decision.
 
    By letter of January 9,