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The decision of the Authority follows:
28 FLRA NO. 2
PATENT OFFICE PROFESSIONAL ASSOCIATION Union and PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE Agency Case No. O-NG-1296
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) and concerns the negotiability of fifteen provisions of a collective bargaining agreement which were disapproved by the Agency head under section 7114 (c) of the Statute.
For the reasons which follow, we find that the Agency head was not authorized to review the provisions under section 7114 (c) of the Statute. Consequently, the Union's appeal of that declaration is not properly before us and we will dismiss the petition for review.
The record in this case indicates that the parties reached an impasse in bargaining on a new basic agreement and were directed by the Federal Service Impasses Panel to submit their dispute to mediation/arbitration. The Arbitrator was given authority by the Panel to issue a final decision on the outstanding issues. The Arbitrator issued an award which directed the parties to adopt the provisions that are now in dispute. Neither party filed exceptions to this interest arbitration award. 2 However, the Agency head declared the provisions outside the duty to bargain while performing what was characterized as a review of the agreement under section 7114 (c) of the Statute.
III. Analysis and conclusion
In American Federation of Government Employees, AFL - CIO, National Council of SSA Field Operations Locals and Department of Health and Human Services, Social Security Administration Field Operations, 27 FLRA No. 104 (1987) and International Organization of Masters, Mates & Pilots and Panama Canal Commission, 27 FLRA No. 105 (1987), we dismissed the petitions for review in which the union sought an appeal of the agency head's declaration of nonnegotiability during the section 7114(c) review. We stated that the declaration of nonnegotiability of provisions that were directed to be included in an agreement as a result of Panel-directed interest arbitration did not serve as an allegation of nonnegotiability for purposes of triggering the filing of a petition for review under section 7117(c) of the Statute. In reaching this conclusion, we relied on our decision in Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72 (1987), in which we found that section 7114(c) of the Statute does not empower agency heads to review provisions that are directed to be included in an agreement as a result of an interest arbitration award. Rather, we found that the appropriate mechanism for challenging the propriety of interest arbitration awards is through the procedures set forth in section 7122 of the Statute.
The same result must be reached in this case. That is, the Agency head was not empowered to review the provisions in dispute that were directed to be included in the parties' agreement as a result of interest arbitration. Therefore, the declaration that the provisions were outside the duty to bargain did not serve as an allegation of nonnegotiability from which the Union could file a petition for review. Accordingly, the union's petition is not properly before us and will be dismissed.
The petition for review is dismissed.
Issued, Washington, D.C., July 16, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY Member Frazier, concurring in the result:
I concur with my colleagues that in the circumstances of this case the Union's petition for review of the Agency head's disapproval should be dismissed. However, I reach this conclusion by a different route than that followed by my colleagues. As set forth in my concurring and dissenting opinion in Department of Defense Dependents Schools (Alexandria, Virginia, 27 FLRA No. 72, an agency head's section 7114 (c) disapproval of a contract provision resulting from Panel-directed interest arbitration is effective where, but only where, the agency has filed timely exceptions to the interest arbitrator's award pursuant to section 7122 of the Statute. As noted, the Agency did not file exceptions to the arbitration award which directed the parties to adopt the provisions that are now in dispute in this case.
Issued, Washington, D.C., July 16, 1987.
Henry B. Frazier, Member
Footnote 1 Member Frazier's separate concurring opinion immediately follows this Decision and Order.
Footnote 2 The Arbitrator issued another award resolving the parties' impasse on other issues. Specifically, he issued an award with modifications which directed the parties to adopt three provisions which were also disapproved by the Agency head. The Union appealed that declaration in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 28 FLRA No. 1 (1987). In addition, the Agency filed exceptions to that arbitration award as it pertained to two of the provisions. Those exceptions were dismissed as untimely filed in U.S. Department of Commerce. Patent and Trademark Office (PTO) and Patent Office Professional Association (POPA), 24 FLRA No. 78 (1986).