[ v15 p564 ]
15:0564(120)PS
The decision of the Authority follows:
15 FLRA No. 120
INTERPRETATION AND GUIDANCE
Case No. O-PS-28
Introduction
In a request for a Statement of General Policy and Guidance filed by
the American Federation of Government Employees, AFL-CIO (AFGE) pursuant
to section 2427.2 of the Authority's Rules and Regulations, AFGE has
presented the following two questions:
Is an agency barred from disapproving and voiding provisions of
an agreement under 5 USC 7114(c) or other parts of the Act when
such provisions are imposed by decision of the Federal Service
Impasses Panel?
Can bargaining unit employees and/or their exclusive
representative seek enforcement of such a Federal Service Impasses
Panel imposed provision of an agreement through the grievance and
arbitration procedures or are they limited to enforcement by a
direct ULP?
After careful consideration of the request, the Authority has
determined that an interpretation of the Federal Service
Labor-Management Relations Statute (the Statute) is warranted on the
questions of (1) whether or not an agency head is authorized to review
for legal sufficiency provisions of a collective bargaining agreement
imposed by a Decision and Order of the Federal Service Impasses Panel
(the Panel) and (2) what procedures are available under the Statute to
seek review of a Panel Decision and Order which is imposed on the
parties.
Conclusions
(1) Section 7114(c) of the Statute authorizes an agency head to
review provisions of a collective bargaining agreement imposed on the
parties by the Panel, and to disapprove those provisions which are not
in accordance with the Statute and other applicable laws, rules and
regulations. (2) The Statute provides two procedures by which an agency
head's disapproval of provisions of an agreement imposed by the Panel
may be reviewed: (1) The expedited negotiability procedure under
section 7117 of the Statute and Part 2424 of the Authority's Rules and
Regulations; and (b) the unfair labor practice procedure under section
7118 of the Statute and Part 2423 of the Authority's Rules and
Regulations.
Discussion
Whether an agency head is authorized to disapprove provisions of a
collective bargaining agreement as contrary to the Statute, law or
regulation, even though they have been imposed on the parties pursuant
to a final order of the Panel, requires an analysis and reconciliation
of two separate sections of the Statute. First, section 7119 of the
Statute, /1/ which sets forth the powers and duties of the Panel,
specifically provides at section 7119(c)(5)(C) that any final action of
the Panel shall be binding on the parties during the term of the
agreement. However, section 7114(c) /2/ of the Statute mandates that an
agreement "shall" be subject to agency head approval, and specifically
grants an agency head the authority to approve or disapprove an
agreement after it is executed.
Thus, section 7119 of the Statute establishes the Panel as a
mechanism for the resolution of impasses in collective bargaining in the
Federal sector, and provides that final actions of the Panel are binding
on the parties for the life of the agreement. Significantly, however,
section 7119(c)(5)(B)(iii) requires that whatever action is taken by the
Panel may not be inconsistent with the Statute. In this context,
section 7114(c) of the Statute, which generally empowers the head of an
agency to review agreements to assure that they are in accordance with
law, rule and regulation, becomes especially significant. Relying on
the plain words of the Statute, and in the absence of relevant
legislative history, the Authority concludes that, pursuant to the
provisions of section 7114(c), agency heads are empowered to review all
provisions of collective bargaining agreements, including those mandated
by the Panel, to assure conformity with the provisions of the Statute as
well as other applicable laws, rules, and regulations. In this regard,
section 7114(c)(1) expressly states that "(a)n agreement . . . shall be
subject to approval by the head of the agency," and section 7114(c)(2)
further states that the latter "shall approve the agreement . . . if the
agreement is in accordance with the provisions of this chapter and any
other applicable law, rule or regulation . . . . " It is well
established that the procedures of the Panel are part of the collective
bargaining process and that any agreement, mandated or otherwise,
resulting therefrom is a part of the collective bargaining agreement.
See International Brotherhood of the Treasury, Bureau of Engraving and
Printing, Washington, D.C., 10 FLRA 198, 199 (1982). See also American
Federation of Government Employees, Locals 225, 1504, and 3723, AFL-CIO
v. Federal Labor Relations Authority, 712 F.2d. 640, 646, n. 24 (D.C.
Cir. 1983). Accordingly, with regard to AFGE's first question, the
Authority concludes that an agency head is authorized to review for
legal sufficiency provisions of a collective bargaining agreement
imposed by a Decision and Order of the Panel.
With regard to AFGE's second question, there are two procedures
available under the Statute whereby review may be obtained of an agency
head's disapproval of a Panel-imposed provision in an agreement, namely,
the expedited procedures for review of negotiability issues under
section 7117 of the Statute and Part 2424 of the Authority's Rules and
Regulations, and the unfair labor practice procedures established in
section 7118 of the Statute and Part 2423 of the Authority's Rules and
Regulations. It is well established that the submission of the
negotiated agreement to the agency head for approval in accordance with
section 7114(c) of the Statute serves as a written request for an
allegation of nonnegotiability pursuant to section 2424.3 of the
Authority's Rules and Regulations. Further, an agency head's
disapproval of a provision in a negotiated agreement is an allegation of
nonnegotiability for purposes of appeal to the Authority. National
Federation of Federal Employees, Local 1505 and Department of the
Interior, National Park Service, Roosevelt-Vanderbilt National
Historical Site, Hyde Park, New York, 7 FLRA 608 (1982); Association of
Civilian Technicians, Inc., Pennsylvania State Council and The Adjutant
General, Department of Military Affairs, Commonwealth of Pennsylvania, 7
FLRA 346 (1981) rev'd on other grounds sub nom. Adjutant General,
Department of Military Affairs v. FLRA, 685 F.2d 93 (1982). Thus, a
union may choose to file a negotiability appeal under section 7117 of
the Statute upon the agency head's disapproval of any Panel-imposed
provision of an agreement. The Authority will then review the agency
head's action in that context and issue an appropriate order. See,
e.g., National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 14 FLRA No. 45 (1984); National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 13 FLRA No. 93 (1983).
The unfair labor practice mechanism is also available for the purpose
of obtaining review of an agency head's action in refusing to approve a
provision of a collective bargaining agreement imposed on the parties by
a final order of the Panel in resolving an impasse. When this occurs,
the head of the agency acts at risk. A union challenging the agency
head's disapproval may file a charge alleging that such conduct violated
the Statute. Specifically, upon a finding that the Panel-imposed
provision disapproved by the agency head was not in fact contrary to the
Statute or any other applicable law, rule or regulation, the agency
head's disapproval of such provision would constitute a failure or
refusal "to cooperate in . . . impasse decisions" in violation of
section 7116(a)(1) and (6) of the Statute. /3/ See, e.g., National
Aeronautics and Space Administration, Headquarters, Washington, D.C., 12
FLRA No. 94 (1983). Further, an appropriate order to remedy such a
violation pursuant to the Authority's wide discretion to fashion
remedies under section 7105(g)(3) and section 7118(a)(7) of the Statute
could include a requirement that the agency give retroactive effect to
the Panel-imposed provisions of the agreement which were improperly
disapproved by the agency head.
In summary, the Authority concludes that under the provisions of the
Statute an agency head is authorized to review and approve or disapprove
all provisions of collective bargaining agreements, even those
provisions imposed upon the parties by the Panel in resolution of an
impasse. An exclusive representative may obtain review of such action
either through the expedited procedures available under the provisions
of section 7117 of the Statute, or the unfair labor practice procedures
available under the provisions of section 7118 of the Statute.
Issued, Washington, D.C., August 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Sec. 7119. Negotiation impasses; Federal Service Impasses Panel
. . . .
(c)(1) The Federal Service Impasses Panel is an entity within the
Authority, the function of which is to provide assistance in resolving
negotiation impasses between agencies and exclusive representatives.
. . . .
(5)(A) The Panel or its designee shall promptly investigate any
impasse presented to it under subsection (b) of this section. The Panel
shall consider the impasse and shall either--
(i) recommend to the parties procedures for the resolution of
the impasse; or
(ii) assist the parties in resolving the impasse through
whatever methods and procedures, including fact finding and
recommendations, it may consider appropriate to accomplish the
purpose of this section.
(B) If the parties do not arrive at a settlement after assistance by
the Panel under subparagraph (A) of this paragraph, the Panel may--
(i) hold hearings;
(ii) administer oaths, take the testimony or disposition of any
person under oath, and issue subpenas as provided in section 7132
of this title; and
(iii) take whatever action is necessary and not inconsistent
with this chapter to resolve the impasse.
(C) Notice of any final action of the Panel under this section shall
be promptly served upon the parties, and the action shall be binding on
such parties during the term of the agreement, unless the parties agree
otherwise.
/2/ Sec. 7114. Representation rights and duties
. . . .
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the agency.
(2) The head of the agency shall approve the agreement within 30 days
from the date the agreement is executed if the agreement is in
accordance with the provisions of this chapter and any other applicable
law, rule, or regulation (unless the agency has granted an exception to
the provision).
(3) If the head of the agency does not approve or disapprove the
agreement within the 30-day period, the agreement shall take effect and
shall be binding on the agency and the exclusive representative subject
to the provisions of this chapter and any other applicable law, rule, or
regulation.
(4) A local agreement subject to a national or other controlling
agreement at a higher level shall be approved under the procedures of
the controlling agreement or, if none, under regulations prescribed by
the agency.
/3/ Section 7116(a)(1) and (6) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor
practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter(.)