[ v29 p1040]
The decision of the Authority follows:
29 FLRA NO. 76
NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY Agency Case No. 0-NG-1392
DECISION AND ORDER ON NEGOTIABILITY ISSUES 1
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 seven provisions of a collective bargaining agreement which were disapproved by the Agency head under section 7114(c) of the Statute.
For the reasons that 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 during mid-term reopener negotiations 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 the provisions at issue in this appeal. 2 Rather, the Agency head disapproved the provisions pursuant to review of the agreement under section 7114(c) of the Statute and the Union appealed from that disapproval under section 7117(c).
By letter dated September 10, 1987, the Authority sought clarification from the parties as to which of the provisions in dispute were ordered by the Arbitrator to be included in the agreement. By letter dated September 24, 1987, the Union responded that "(a)ll the language declared nonnegotiable by the Department of the Treasury was included in the arbitrator's award." The Department of the Treasury also confirmed that the provisions in dispute were ordered by the Arbitrator.
III. Analysis and Conclusion
In U.S. Department of Agriculture, Food and Nutrition Service, Western Region and National Treasury Employees Union, 28 FLRA No. 6 (1987), petition for review filed sub nom. U.S. Department of Agriculture, Food and Nutrition Service, Western Region v. FLRA, No. 87-7425 (9th Cir. Sept. 18, 1987) and Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 28 FLRA No. 2 (1987), petition for review filed sub nom. Patent and Trademark office, Department of Commerce v. FLRA, No. 87-3878 (4th Cir. Sept. 10, 1987), we dismissed petitions for review in which the unions appealed from agency head disapprovals of agreement provisions during 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), petition for review filed sub nom. Department of Defense Dependents Schools (Alexandria, Virginia) v. FLRA, No. 87-3126 (4th Cir. Aug. 17, 1987). In that case 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.
For the reasons stated in the above-cited cases, we find that the Agency head was not empowered to disapprove the provisions which were directed to be included in the parties' agreement as a result of interest arbitration in this case. Therefore, the Agency head's disapproval of those provisions could not serve as an allegation of nonnegotiability from which the Union could file a petition for review. Accordingly, the Union's petition for review is not properly before us and will be dismissed.
The petition for review is dismissed.
Issued, Washington, D.C., October 21, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
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, petition for review filed sub nom. Department of Defense Dependents Schools (Alexandria, Virginia) v. FLRA, No. 87-3126 (4th Cir. Aug. 17, 1987), 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., October 21, 1987.
Henry Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY
Footnote 1 Member Frazier's separate concurring opinion immediately follows this decision and order.
Footnote 2 The Union, however, filed exceptions to the interest arbitration award as it pertained to one other provision not before the Authority in this negotiability appeal. Those exceptions are currently pending before the Authority in National Treasury Employees Union and Internal Revenue Service, Case No. 0-AR-1341.