17:0084(19)CA - Army, HQ, and DARCOM HQ and NFFE Local 476 -- 1985 FLRAdec CA

 17 FLRA No. 19
 
 U.S. DEPARTMENT OF ARMY,
 HEADQUARTERS, AND DARCOM HQ
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 476 (INDEPENDENT)
 Charging Party
 
                                            Case No. 3-CA-30280
 
                            Decision AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the parties' contentions, /1/ the
 Authority finds:
 
    The complaint alleges that Respondent U.S. Army Materiel Development
 Readiness Command (DARCOM) Headquarters violated section 7116(a)(1), (5)
 and (6) of the Statute /2/ by rejecting as nonnegotiable a provision of
 a collective bargaining agreement between NFFE and U.S. Army Electronics
 Research and Development Command, Ft. Monmouth, New Jersey (ERADCOM), a
 subordinate element within DARCOM, which was imposed on the parties by
 decision of the Federal Service Impasses Panel (Panel), /3/ in violation
 of the provisions of section 7119(c)(5)(C) of the Statute.  /4/
 
    The stipulated record indicates that NFFE is the exclusive
 representative of a unit of ERADCOM's employees.  During the course of
 negotiations, a dispute arose involving several proposals concerning the
 performance appraisal system for employees in the exclusively
 represented unit.  Thereafter, the Panel issued its above-referenced
 Decision and Order resolving this dispute, wherein it ordered the
 parties, inter alia, to adopt NFFE's proposal that an employee against
 whom an action is imposed based on unacceptable performance should
 receive 60 days advance written notice of the proposed action.
 Thereafter, on December 14, 1982, ERADCOM and NFFE inserted this
 provision, among others, into their collective bargaining agreement
 pursuant to the Decision and Order of the Panel.
 
    By letter dated January 13, 1983, the Chief of DARCOM's Civilian
 Personnel Division, Directorate for Personnel, Training and Force
 Development, reviewed the provisions of the collective bargaining
 agreement pursuant to section 7114(c) of the Statute, /5/ and rejected
 as nonnegotiable the provision for 60-day advance notice of a proposed
 performance-based action because that provision was not in accordance
 with certain applicable law and Department of the Army Regulations.
 
    The parties agreed to present the following legal issue for
 resolution by the Authority:
 
          Whether an agency is preempted from exercising its statutory
       obligation under Section 7114(c) of the Statute when a subordinate
       activity is under a Federal Service Impasses Panel Decision and
       Order under section 7119(c)(5)(C) of the Statute regarding
       incorporation of a provision in a collective bargaining agreement.
 
    The Authority has concluded that 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 provisions which are not in accordance with the Statute and
 other applicable law, rule or regulation.  Interpretation and Guidance,
 15 FLRA No. 120 (1984).  Thus, an agency head does not violate section
 7116(a)(1), (5) and (6) of the Statute by the mere act of reviewing
 provisions imposed by the Panel.  The Authority further concluded in the
 above-cited Interpretation and Guidance that an agency head's
 determination to disapprove a provision imposed by the Panel is subject
 to review in an unfair labor practice proceeding;  therefore, if the
 Authority finds the provision not to be contrary to the Statute or other
 applicable law, rule or regulation, such disapproval would constitute a
 failure or refusal "to cooperate in . . . impasse decisions" in
 violation of section 7116(a)(1) and (6) of the Statute.  However, in the
 instant case, the General Counsel failed to allege or establish that the
 provision which the agency head here refused to approve was not contrary
 to the Statute, or any other applicable law, rule or regulation.
 Instead, the case is before the Authority on the stipulated issue noted
 above.  The Authority decides the stipulated issue in the negative, and
 the complaint must be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-30280 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., February 28, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Subsequent to the filing of briefs by the parties, Respondent
 DARCOM Headquarters filed a reply to the brief filed by the Charging
 Party, National Federation of Federal Employees, Local 476 (Independent)
 (NFFE), which opposed the consideration thereof.  As section 2429.1 of
 the Authority's Rules and Regulations does not provide for the filing of
 a reply brief, and the Authority did not grant permission to file a
 reply brief under section 2429.26 of its Rules and Regulations, such
 submission has not been considered herein.
 
 
    /2/ Section 7116(a)(1), (5) and (6) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purposes of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
          (6) to fail or refuse to cooperate with impasse procedures and
       impasse decisions as required by this chapter(.)
 
 
    /3/ Department of the Army, U.S. Army Electronics Research and
 Development Command, Fort Monmouth, New Jersey and Local 476, National
 Federation of Federal Employees, Case No. 82 FSIP 78 (1982).
 
 
    /4/ Paragraph 9 of the complaint refers to section 7119(b)(5)(C) of
 the Statute.  This inadvertent error is hereby corrected.  Section
 7119(c)(5)(C) of the Statute provides:
 
          Sec. 7119.  Negotiation impasses;  Federal Service Impasses
       Panel
 
          (c)(5)(C) Notice of any final action of the Panel under this
       section shall be promptly served upon the parties, and the action
       shall be binding on such parties during the term of the agreement,
       unless the parties agree otherwise.
 
 
    /5/ Section 7114(c) provides in pertinent part:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (c)(1) An agreement between any agency and an exclusive
       representative shall be subject to approval by the head of the
       agency.
 
          (2) The head of the agency shall approve the agreement within
       30 days from the date the agreement is executed if the agreement
       is in accordance with the provisions of this chapter and any other
       applicable law, rule, or regulation (unless the agency has granted
       an exception to the provision).
 
          (3) If the head of the agency does not approve or disapprove
       the agreement within the 30-day period, the agreement shall take
       effect and shall be binding on the agency and the exclusive
       representative subject to the provisions of this chapter and any
       other applicable law, rule, or regulation(.)