31:1193(105)NG - AFGE, National Border Patrol Council and Justice -- 1988 FLRAdec NG



[ v31 p1193 ]
31:1193(105)NG
The decision of the Authority follows:


31 FLRA NO. 105

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL

                    Union

      and

U.S. DEPARTMENT OF JUSTICE

                    Agency

                                                Case No. 0-NG-1480

                  ORDER DISMISSING PETITION FOR REVIEW

     I. Statement of the Case

     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). The Union's
petition for review concerns the negotiability of various
provisions of a collective bargaining agreement which were
disapproved by the Agency head under section 7114(c) of the
Statute.

     This case presents the threshold question of whether the
Union's petition for review is properly before us. Ordinarily,
when parties negotiate an agreement, the executed agreement is
forwarded to the agency head for review. The agency head, or
someone designated by the agency head, has an opportunity to
determine whether the provisions that have been negotiated are
consistent with law and regulation. When a matter is disapproved
on the basis that it is outside the duty to bargain because it is
inconsistent with law or regulation, the union may file a
petition for review of the agency head's disapproval with the
Authority under the procedures set forth in section 7117 of the
Statute. The Authority will then determine whether the matter is
within the duty to bargain. When contract provisions have been
directed to be included in a collective bargaining agreement by
an interest arbitrator, the appropriate mechanism for 
challenging the propriety of such provisions is through the
filing of exceptions to the interest arbitration award under
section 7122(a) of the Statute. Such provisions are not subject
to review by agency heads under section 7114(c) of the Statute.
In this case, all the provisions of the agreement which were
disapproved were directed to be included in the agreement by the
award of an interest arbitrator. Consistent with Authority
precedent, we find that the Agency head was not authorized to
review and disapprove those provisions under section 7114(c).
Accordingly, the Union's appeal from that disapproval is not
properly before us, and we will dismiss the Union's petition for
review.

     II. Background

     After the parties were unable to reach full agreement in
their negotiations for a collective bargaining agreement, the
Union requested assistance in resolving the impasse from the
Federal Service Impasses Panel (the Panel). The Panel directed
the parties to use binding interest arbitration to resolve their
impasse. The Arbit