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 Arbitrator first attempted to resolve the matters at
impasse through the use of mediation. When all the matters at
impasse were not resolved through mediation, the Arbitrator
resolved the remaining issues by imposing provisions on the
parties as part of their collective bargaining agreement.

     The Arbitrator's award "direct(ed) that the Parties include
the following in their new Agreement." Award at 81. What followed
were 39 articles and an appendix, which constituted the entire
collective bargaining agreement. Some of the provisions directed
by the Arbitrator to be included as part of the agreement had
been agreed to by the parties in their bilateral negotiations,
some had been agreed to by the parties through mediation by the
Arbitrator, and the remaining provisions had been imposed by the
Arbitrator to resolve the parties' impasse.

     The Union and the Agency filed exceptions to the award with
respect to provisions for seven of the articles which were
imposed by the Arbitrator. Those exceptions were resolved in
United States Department of Justice, Immigration and
Naturalization Service and American Federation of Government
Employees, National Border Patrol Council, 31  FLRA  No.  94
(1988). In addition to filing exceptions with the Authority, the
Agency head declared the provisions involved in this case to be
outside the duty to bargain after reviewing the agreement under
section 7114(c) of the Statute. Besides disapproving all of the
provisions as to  which the Agency had filed exceptions,
the Agency head disapproved provisions of six additional articles
of the agreement.

     III. Analysis and Conclusions

     In Department of Defense Dependents Schools (Alexandria,
Virginia), 27 FLRA  586 (1987) (DODDS, Alexandria), petition for
review filed sub nom. Department of Defense Dependents Schools v.
FLRA,  No.  87-3126 (4th Cir. Aug. 17, 1987), we found that
section 7114(c) of the Statute does not empower agency heads to
review provisions that are directed to be included in a
collective bargaining agreement as a result of an interest
arbitration award. We found that the appropriate mechanism for
challenging the propriety of interest arbitration awards is
through the procedures set forth in section 7122(a) of the
Statute.

     On the basis of DODDS, Alexandria, we have dismissed
petitions for review in which the unions appealed from agency
head disapprovals of agreement provisions during section 7114(c)
review. For example, National Treasury Employees Union and
Department of the Treasury, 29 FLRA  1040 (1987), petition for
review filed sub nom. Department of the Treasury v. FLRA,  No. 
87-1770 (D.C. Cir. Dec. 15, 1987); Overseas Education Association
and Department of Defense, Office of Dependents Schools, 28 FLRA 
887 (1987), peti