26:0217(28)NG - NFFE Local 476 and Army, Army Electronics Research and Development Command, Fort Monmouth, NJ -- 1987 FLRAdec NG

 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.