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The decision of the Authority follows:
28 FLRA NO. 115 OVERSEAS EDUCATION ASSOCIATION Union and DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS SCHOOLS Agency Case No. 0-NG-1166
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 seven provisions of a collective bargaining agreement which were disapproved by the Agency head under section 7114(c) of the Statute. 2
For the reasons which follow, we find that the Agency head was not authorized to review the provisions under section 7114(c). Consequently, the Union's appeal of the 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 supplemental agreement and were directed by the Federal Service Impasses Panel (the 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 his award directing the parties to adopt the provisions that are now in dispute. The Agency filed exceptions to the award with respect to six of the seven provisions involved in this case. 3 Those exceptions were resolved in Overseas Education Association and Department of Defense, Office of Dependents Schools, 28 FLRA No. 114 (1987).
In addition to filing exceptions with the Authority concerning six of the provisions here in dispute, the Agency head declared the provisions to be outside the duty to bargain while performing what was characterized as a review of the agreement under section 7114(c) of the Statute.
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 filed by the union as a result of the agency head's declaration of nonnegotiability during a section 7114(c) review. We stated that the agency head's action did not serve as an allegation of nonnegotiability under section 7117(c) of the Statute because the disapproved provisions were directed to be included in the agreement as a result of Panel-directed interest arbitration. 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) 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. As noted, the Agency in this case filed timely exceptions to the Arbitrator's award which we recently resolved.
We conclude that the petition for review in this case must likewise be dismissed. 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. Instead, the Agency's challenge to the propriety of the Arbitrator's award was properly resolved by the decision on its exceptions filed under section 7122 of the Statute.
The petition for review is dismissed. 4
Issued, Washington, D.C., September 4, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
I respectfully dissent from my colleagues' dismissal of the union's petition for review in this case to the extent it pertains to the six provisions as to which the Agency filed exceptions in Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 114 (1987). As set forth in my concurring and dissenting opinion in Department of Defense Dependents Schools (DODDS) (Alexandria, Virginia), 27 FLRA No. 72, an agency head's section 7114(c) disapproval of a contract provision resulting from Panel-directed interest arbitration would be effective where the agency has filed timely exceptions to the interest arbitrator's award. Such a disapproval would provide a union with a proper basis for filing a petition for review of negotiability issues, as the Union did in this case.
The Agency filed timely exceptions to the Arbitrator's award in this case, which exceptions were resolved in Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 114 (1987). Consistent with the views expressed in my opinion in DODDS (Alexandria), I would therefore have found that the Union's petition for review of the Agency's related action under section 7114(c) was properly before the Authority to the extent of the six provisions involved in the arbitration case. As I further discussed in that opinion, the Authority could consolidate such related proceedings for purposes of decision. Efficient processing would appear to favor such consolidation. Consequently, I would have granted the Union's motion to consolidate. Rather than dismiss the Union's petition for review as to the provisions in dispute in both cases, I would have accepted the petition for review as properly before the Authority. On the basis of the Authority decision in Overseas Education Association, 28 FLRA No. 114 (1987), I would have determined that the disputed language in Article 9 (as designated by the Arbitrator) pertaining to formal incentive awards was within the duty to bargain, and I would have issued an order requiring the Agency to rescind to that extent its disapproval of that provision. In addition, as a result of the consolidation, I would have resolved on the merits the negotiability issues raised by the Agency with respect to Article 61 (as designated by the Arbitrator) instead of leaving the parties only with the order that they return to the bargaining table. As I also discussed in my dissenting opinion 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), an additional advantage which might flow from such consolidation could be more efficient enforcement proceedings should they be required.
With respect to the provision which was disapproved but as to which no exceptions were filed, I concur with my colleagues that the Union's petition for review of the Agency head's disapproval should to that extent be dismissed. As set forth in my concurring and dissenting opinion in DODDS (Alexandria), 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. Accordingly, I concur in the order dismissing the petition for review insofar as it pertains to the duration and successor agreement article.
Issued, Washington, D.C., September 4, 1987.
Henry B. Frazier III, Member
Footnote 1 Member Frazier's separate opinion, concurring, in part, and dissenting, in part, immediately follows this decision and order.
Footnote 2 The Agency withdrew its allegations of nonnegotiability concerning Article 5 - Official Time and Article 7 -Negotiations over Proposed Changes in Working Conditions and Policies.
Footnote 3 The Agency did not file exceptions with respect to the article pertaining to duration and the successor agreement.
Footnote 4 The Union's motion to consolidate this case with the case of the Agency's exceptions to the award is denied.