28:0887(115)NG - OEA VS DOD, DEPENDENTS SCHOOLS
[ v28 p887 ]
The decision of the Authority follows:
28 FLRA NO. 115 OVERSEAS EDUCATION ASSOCIATION Union and DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS SCHOOLS Agency Case No. 0-NG-1166
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of seven provisions of a collective bargaining agreement which were disapproved by the Agency head under section 7114(c) of the Statute. 2
For the reasons which follow, we find that the Agency head was not authorized to review the provisions under section 7114(c). Consequently, the Union's appeal of the declaration is not properly before us and we will dismiss the petition for review.
The record in this case indicates that the parties reached an impasse in bargaining on a supplemental agreement and were directed by the Federal Service Impasses Panel (the Panel) to submit their dispute to mediation/arbitration. The Arbitrator was given authority by the Panel to issue a final decision on the outstanding issues. The Arbitrator issued his award directing the parties to adopt the provisions that are now in dispute. The Agency filed exceptions to the award with respect to six of the seven provisions involved in this case. 3 Those exceptions were resolved in Overseas Education Association and Department of Defense, Office of Dependents Schools, 28 FLRA No. 114 (1987).
In addition to filing exceptions with the Authority concerning six of the provisions here in dispute, the Agency head declared the provisions to be outside the duty to bargain while performing what was characterized as a review of the agreement under section 7114(c) of the Statute.
In American Federation of Government Employees, AFL - CIO, National Council of SSA Field Operations Locals and Department of Health and Human Services, Social Security Administration Field Operations, 27 FLRA No. 104 (1987) and International Organization of Masters, Mates & Pilots and Panama Canal Commission, 27 FLRA No. 105 (1987), we dismissed the petitions for review filed by the union as a result of the agency head's declaration of nonnegotiability during a section 7114(c) review. We stated that the agency head's action did not serve as an allegation of nonnegotiability under section 7117(c) of the Statute because the disapproved provisions were directed to be included in the agreement as a result of Panel-directed interest arbitration. In reaching this conclusion, we relied on our decision in Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72 (1987), in which we found that section 7114(c) does not empower agency heads to review provisions that are directed to be included in an agreement as a result of an interest arbitration award. Rather, we found that the appropriate mechanism for challenging the propriety of interest arbitration awards is through the procedures set forth in section 7122 of the Statute. As noted, the Agency in this case filed timely exceptions to the Arbitrator's award which we recently resolved.
We conclude that the petition for review in this case must likewise be dismissed. The Agency head was not empowered to review the provisions in dispute that were directed to be included in the parties' agreement as a result of interest arbitration. Therefore, the declaration that the provisions were outside the duty to bargain did not serve as an allegation of nonnegotiability from which the Union could file a petition for review. Accordingly, the Union's petition is not properly before us and will be dismissed. Instead, the Agency's challenge to the propriety of the Arbitrator's award was properly resolved by the decision on its exceptions filed under section 7122 of the Statute.
The petition for review is dismissed. 4
Issued, Washington, D.C., September 4, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
I respectfully dissent from my colleagues' dismissal of the union's petition for review in this case to the extent it pertains to the six provisions as to which the Agency filed exceptions in Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA