[ v26 p217 ]
The decision of the Authority follows:
26 FLRA No. 28 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476 Union and DEPARTMENT OF THE ARMY U.S. ARMY ELECTRONICS RESEARCH AND DEVELOPMENT COMMAND FORT MONMOUTH, NEW JERSEY Agency Case No. 0-NG-799 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of a provision disapproved by the Agency head pursuant to section 7114(c) of the Statute. We find this provision to be negotiable. II. Provision Employees against whom action (regarding their alleged unacceptable performance) is proposed are entitled to the following: (1) 60 days advance written notice of the proposed action . . . . (Only the underlined portion is in dispute.) III. Background Following an impasse in negotiations between the parties over the performance appraisal system, the Federal Service Impasses Panel directed the Agency to adopt the provision here in dispute. Department of the Army, U.S. Army Electronics Research and Development Command, Fort Monmouth, New Jersey and Local 476, National Federation of Federal Employees, 82 FSIP 78 (1982). No question of consistency with law had been raised before the Panel. The disputed provision was thereafter disapproved by the Headquarters, Army Materiel Development and Readiness Command, which had been delegated the authority by the Department of the Army to review the provision under section 7114(c) of the Statute. The Union filed an unfair labor practice charge and a negotiability appeal based upon that disapproval and elected to have the dispute processed under the unfair labor practice procedures first. The parties stipulated to the Authority that the only issue raised in the unfair labor practice complaint was whether an agency is preempted from exercising its statutory obligation under section 7114(c) of the Statute when a subordinate activity is directed by a Panel Order to incorporate a provision into its contract. Without reaching the merits of the negotiability issue, the Authority decided the stipulated issue in the negative and dismissed the complaint, relying on precedent in which the Authority had previously held that an agency head does not violate the Statute merely by reviewing provisions imposed by the Panel. U.S. Department of Army, Headquarters, and DARCOM HQ, 17 FLRA 84 (1985). The Union sought review of that dismissal in the United States Court of Appeals for the District of Columbia Circuit. In National Federation of Federal Employees v. FLRA, 789 F.2d 944 (D.C. Cir. 1986), the court noted that it had recently affirmed the Authority's holding that agency heads have the authority under section 7114(c) to review Panel orders issued under section 7119. See American Federation of Government Employees v. FLRA, 778 F.2d 850 (D.C. Cir. 1985), affirming Interpretation and Guidance, 15 FLRA 564 (1984). However, the court further found that the Authority should have resolved whether the agency head erred in applying his disapproval power to the particular Panel provision at issue. The court remanded the case to the Authority to allow the General Counsel to pursue the charge with the Authority. Subsequently, the case was transferred to an Administrative Law Judge of the Authority. In response to the Judge's request for the parties' positions, both the General Counsel and the Union decided not to pursue the case. The Judge therefore dismissed the complaint, and no exceptions were taken to the Judge's decision. By letter of January 9, 1987, the parties were given the opportunity to notify the Authority of any changes in their positions on the matters at issue in this case. Other than a request by the Union that it still wished the Authority to address the negotiability issue, neither party responded with a change in its position. IV. Positions of the Parties The Agency, Headquarters, Army Materiel Development and Readiness Command, is part of the Department of the Army. Its disapproval of the provision was based on the grounds that the provision was inconsistent with 5 U.S.C. Section 4303(b)(2) and Army Regulation 690-400, Chapter 432.1-4(b)(1) and was therefore nonnegotiable. The Agency noted, in this regard, that 5 U.S.C. Section 4303(b)(1)(A) provides that employees whose reductions in grade or removals are proposed are entitled to a 30-day adverse notice period and that under 5 U.S.C. Section 4303(b)(2): An agency may, under regulations prescribed by the head of such agency, extend the notice period under subsection (b)(1)(A) of this section for not more than 30 days. (Emphasis added.) Based on the quoted language, the Agency contends that the 30-day notice period provided by law and reflected in its regulations may be extended only through issuance of a regulation by the Agency head. It contends that because the Department of the Army has not exercised its discretion under the Statute to extend the notice period to 60 days, a collective bargaining agreement may not, in the absence of a regulation expressly required by law, serve to authorize an extension. The Agency contends that the question is not whether there is a compelling need for the Department of the Army's regulation within the meaning of section 7117(a)(2) of the Statute. The Agency acknowledges that there is no provision in the regulation which prohibits a 60-day notice period. Rather, it argues that a 60-day notice period is authorized only where an agency head affirmatively regulates to permit it. The Union contends that the proposed extension of the notice period is a condition of employment and is within the duty to bargain because it is not a matter specifically provided for by Federal statute. The Union asserts that under 5 U.S.C. Section 4303(b)(2), agencies are speicifcally provided with discretion to provide for an additional notice period of not more than 30 days and the disputed provision does nothing more than provide that the Agency exercise its discretion to do so. Finally, the Union argues that the proposal is a negotiable procedure and an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. V. Analysis and Conclusion Both parties agree that 5 U.S.C. Section 4303(b)(2) provides to agencies the discretion to extend the statutory notice period for 30 days as provided for in the Panel-adopted provision. For the reasons which follow, we find that the provision is consistent with that discretion and therefore is within the duty to bargain. The Agency argues that the provision adopted by the Panel is inconsistent with 5 U.S.C. Section 4303(b)(2) because the Agency head has not extended the 30-day notice period in the Agency's regulations. That argument lacks merit because the Agency head also has the discretion under that statutory provision to amend the Agency's regulations. The fact that implementation of the provision ordered by the Panel would require the Agency to amend its regulation, as it is authorized to do by law, does not provide a proper basis on which the Agency may disapprove the provision. See American Federation of Government Employees, Meat Graders Council, AFL-CIO and Department of Agriculture, Food Safety and Quality Service, Meat Grading Branch, Washington, D.C., 8 FLRA 118, 124 n.9 (1982) (Proposal III). Likewise, the contention that the provision was properly disapproved by a subordinate command of the Agency because it had no authority to issue or change the Agency's regulation is also without merit. In disapproving the Panel-ordered provision, the Agency was acting based on authority delegated to it by the Department of the Army. See National Treasury Employees Union, Chapter 52, and Internal Revenue Service, Austin District, 23 FLRA No. 93 (1986). As it was acting for the Department of the Army when it disapproved the provision, the Agency cannot now claim its subordinate status as a basis for not having the authority to approve the provision. Finally, since the Agency does not make a "compelling need" argument under section 7117(a)(2) of the Statute, its regulation can not serve as a basis for the disapproval of the provision. VI. Order The Agency must rescind its disapproval of the disputed provision. /*/ /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding the provision to be within the duty to bargain, we make no judgment as to its merits.