15:0564(120)PS - Interpretation and Guidance -- 1984 FLRAdec PS



[ v15 p564 ]
15:0564(120)PS
The decision of the Authority follows:


 15 FLRA No. 120
 
 INTERPRETATION AND GUIDANCE
 
                                            Case No. O-PS-28
 
    Introduction
 
    In a request for a Statement of General Policy and Guidance filed by
 the American Federation of Government Employees, AFL-CIO (AFGE) pursuant
 to section 2427.2 of the Authority's Rules and Regulations, AFGE has
 presented the following two questions:
 
          Is an agency barred from disapproving and voiding provisions of
       an agreement under 5 USC 7114(c) or other parts of the Act when
       such provisions are imposed by decision of the Federal Service
       Impasses Panel?
 
          Can bargaining unit employees and/or their exclusive
       representative seek enforcement of such a Federal Service Impasses
       Panel imposed provision of an agreement through the grievance and
       arbitration procedures or are they limited to enforcement by a
       direct ULP?
 
    After careful consideration of the request, the Authority has
 determined that an interpretation of the Federal Service
 Labor-Management Relations Statute (the Statute) is warranted on the
 questions of (1) whether or not an agency head is authorized to review
 for legal sufficiency provisions of a collective bargaining agreement
 imposed by a Decision and Order of the Federal Service Impasses Panel
 (the Panel) and (2) what procedures are available under the Statute to
 seek review of a Panel Decision and Order which is imposed on the
 parties.
 
    Conclusions
 
    (1) Section 7114(c) of the Statute authorizes an agency head to
 review provisions of a collective bargaining agreement imposed on the
 parties by the Panel, and to disapprove those provisions which are not
 in accordance with the Statute and other applicable laws, rules and
 regulations.  (2) The Statute provides two procedures by which an agency
 head's disapproval of provisions of an agreement imposed by the Panel
 may be reviewed:  (1) The expedited negotiability procedure under
 section 7117 of the Statute and Part 2424 of the Authority's Rules and
 Regulations;  and (b) the unfair labor practice procedure under section
 7118 of the Statute and Part 2423 of the Authority's Rules and
 Regulations.
 
    Discussion
 
    Whether an agency head is authorized to disapprove provisions of a
 collective bargaining agreement as contrary to the Statute, law or
 regulation, even though they have been imposed on the parties pursuant
 to a final order of the Panel, requires an analysis and reconciliation
 of two separate sections of the Statute.  First, section 7119 of the
 Statute, /1/ which sets forth the powers and duties of the Panel,
 specifically provides at section 7119(c)(5)(C) that any final action of
 the Panel shall be binding on the parties during the term of the
 agreement.  However, section 7114(c) /2/ of the Statute mandates that an
 agreement "shall" be subject to agency head approval, and specifically
 grants an agency head the authority to approve or disapprove an
 agreement after it is executed.
 
    Thus, section 7119 of the Statute establishes the Panel as a
 mechanism for the resolution of impasses in collective bargaining in the
 Federal sector, and provides that final actions of the Panel are binding
 on the parties for the life of the agreement.  Significantly, however,
 section 7119(c)(5)(B)(iii) requires that whatever action is taken by the
 Panel may not be inconsistent with the Statute.  In this context,
 section 7114(c) of the Statute, which generally empowers the head of an
 agency to review agreements to assure that they are in accordance with
 law, rule and regulation, becomes especially significant.  Relying on
 the plain words of the Statute, and in the absence of relevant
 legislative history, the Authority concludes that, pursuant to the
 provisions of section 7114(c), agency heads are empowered to review all
 provisions of collective bargaining agreements, including those mandated
 by the Panel, to assure conformity with the provisions of the Statute as
 well as other applicable laws, rules, and regulations.  In this regard,
 section 7114(c)(1) expressly states that "(a)n agreement . . . shall be
 subject to approval by the head of the agency," and section 7114(c)(2)
 further states that the latter "shall approve the agreement . . . if the
 agreement is in accordance with the provisions of this chapter and any
 other applicable law, rule or regulation . . . . " It is well
 established that the procedures of the Panel are part of the collective
 bargaining process and that any agreement, mandated or otherwise,
 resulting therefrom is a part of the collective bargaining agreement.
 See International Brotherhood of the Treasury, Bureau of Engraving and
 Printing, Washington, D.C., 10 FLRA 198, 199 (1982).  See also American
 Federation of Government Employees, Locals 225, 1504, and 3723, AFL-CIO
 v. Federal Labor Relations Authority, 712 F.2d. 640, 646, n. 24 (D.C.
 Cir. 1983).  Accordingly, with regard to AFGE's first question, the
 Authority concludes that an agency head is authorized to review for
 legal sufficiency provisions of a collective bargaining agreement
 imposed by a Decision and Order of the Panel.
 
    With regard to AFGE's second question, there are two procedures
 available under the Statute whereby review may be obtained of an agency
 head's disapproval of a Panel-imposed provision in an agreement, namely,
 the expedited procedures for review of negotiability issues under
 section 7117 of the Statute and Part 2424 of the Authority's Rules and
 Regulations, and the unfair labor practice procedures established in
 section 7118 of the Statute and Part 2423 of the Authority's Rules and
 Regulations.  It is well established that the submission of the
 negotiated agreement to the agency head for approval in accordance with
 section 7114(c) of the Statute serves as a written request for an
 allegation of nonnegotiability pursuant to section 2424.3 of the
 Authority's Rules and Regulations.  Further, an agency head's
 disapproval of a provision in a negotiated agreement is an allegation of
 nonnegotiability for purposes of appeal to the Authority.  National
 Federation of Federal Employees, Local 1505 and Department of the
 Interior, National Park Service, Roosevelt-Vanderbilt National
 Historical Site, Hyde Park, New York, 7 FLRA 608 (1982);  Association of
 Civilian Technicians, Inc., Pennsylvania State Council and The Adjutant
 General, Department of Military Affairs, Commonwealth of Pennsylvania, 7
 FLRA 346 (1981) rev'd on other grounds sub nom. Adjutant General,
 Department of Military Affairs v. FLRA, 685 F.2d 93 (1982).  Thus, a
 union may choose to file a negotiability appeal under section 7117 of
 the Statute upon the agency head's disapproval of any Panel-imposed
 provision of an agreement.  The Authority will then review the agency
 head's action in that context and issue an appropriate order.  See,
 e.g., National Treasury Employees Union and Department of the Treasury,
 Internal Revenue Service, 14 FLRA No. 45 (1984);  National Treasury
 Employees Union and Department of the Treasury, Internal Revenue
 Service, 13 FLRA No. 93 (1983).
 
    The unfair labor practice mechanism is also available