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27 FLRA NO. 105

INTERNATIONAL ORGANIZATION OF
MASTERS, MATES & PILOTS

     Union

     and

PANAMA CANAL COMMISSION

     Agency

Case No. O-NG-1123

DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 a single provision of a negotiated agreement a portion of which was disapproved by the Agency head under section 7114(c) of the Statute. The entire provision is set out in an Appendix to this decision.

For the reasons which follow, we find that the Agency head was not authorized to review the provision under section 7114(c) of the Statute. Therefore, the Union's appeal of that declaration is not properly before us and we will dismiss the petition for review.

II. Background

The record in this case indicates that during the course of negotiations, the parties sought the assistance of the Federal Service Impasses Panel (Panel) to resolve a negotiation impasse. The Panel directed the parties to mediation/arbitration and designated a Panel member to serve as mediator/arbitrator.

A decision was issued as Case No. 84 FSIP 73, in which, among other things, the arbitrator, acting in that capacity, directed the parties to adopt the particular provision that is now in dispute. In this case, there is no evidence that timely exceptions to this particular provision were filed. 2 Rather, the Agency head declared the provision to be outside the duty to bargain while performing what it 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), we dismissed a petition 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 provision in dispute that was directed to be included in the parties'  agreement as a result of interest arbitration. Therefore, its declaration that the provision was 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.

IV. Order

The petition for review is dismissed.

Issued, Washington, D.C., June 30, 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. Based on the record in this case, it does not appear that the Agency filed such exceptions. Accordingly, I concur in the order dismissing the petition for review.

Issued, Washington, D.C., June 30, 1987.

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

The provision states as follows:

There will be a total of three thousand (3,000) hours of official time per contract year available for use by Organization representatives. Official time not utilized in a given contract year may not be carried forward to the next contract year. In order that 2 (two) Organization representatives, who are employees of the Panama Canal Commission, may schedule representational activities in a manner that meets the needs of the parties, the Commission agrees to grant sixteen (16) hours of official time per week to each representative (which shall be deducted from the aforesaid three thousand (3,000) hours) and shall credit each representative with three (3) assignments per pay period for the purpose of PILOT ADDITIONAL COMPENSATION (Appendix B). 

FOOTNOTES

Footnote 1 Member Frazier's concurring opinion immediately follows the decision and order in this case.

Footnote 2 We note that exceptions were filed by the Agency to a different provision that was in dispute. The exceptions were dismissed as having been untimely filed. Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, ILA, AFL-CIO, 22 FLRA No. 67 (1986), request for reconsideration denied September 24, 1986.

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