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27 FLRA NO. 104

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL
COUNCIL OF SSA FIELD OPERATIONS LOCALS

     Union

     and

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION FIELD OPERATIONS

     Agency

Case No. O-NG-1298

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). The case concerns the negotiability of two provisions which were ordered to be included in the parties' agreement as a result of an interest arbitrator's award. The interest arbitration was directed by the Federal Service Impasses Panel (the Panel). The two provisions, which are set forth in an appendix to this decision, were disapproved by the Agency head under section 7114(c) of the Statute. For the reasons stated below, we conclude that the Agency head was not empowered to review and disapprove the two provisions, and we will therefore dismiss the Union's appeal.

II. Background

The parties reached an impasse in bargaining on a supplemental agreement and were directed by 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 made his award on May 6, 1986, and issued a supplemental award on June 4, 1986. Both parties filed exceptions to various portions of the award. The Authority issued a decision addressing the parties' exceptions in Social Security Administration and National Council of SSA Field Operations Locals (NCSSAFOL), American Federation of Government Employees, AFL - CIO (AFGE), 25 FLRA No. 17, request for reconsideration denied, 26 FLRA No. 6 (1987).

In addition to filing exceptions with the Authority concerning the provisions here in dispute, the Agency disapproved the provisions in a letter to the Union dated July 1, 1986. The Union then filed this negotiability appeal.

III. Analysis and Conclusion

In Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72 (1987), we considered for the first time whether section 7114(c) of the Statute authorizes Agency heads to review provisions directed to be included in an agreement by an award in an interest arbitration directed by the Panel. In that case, we considered the relationship between section 7114(c) and section 7122 of the Statute. Under section 7122, either party may file exceptions to an interest arbitration award and where no exceptions are filed the award becomes final and binding.

We concluded that interest arbitration awards are not subject to agency head review under section 7114(c). Rather, if an agency wishes to seek review of provisions directed by such an award, the agency must file exceptions to the award under section 7122(a) of the Statute. As noted above, the Agency and the Union filed timely exceptions to the award in this case under section 7122(a) and we resolved those exceptions.

Based on the rationale contained in Department of Defense Dependents Schools, we conclude that the Agency head in this case was not authorized to review and disapprove the two provisions here on appeal. Accordingly, the Agency head's action did not serve as an allegation of nonnegotiability. Therefore, the Union's negotiability appeal is not properly before us and shall be dismissed. 

IV. Order

The Union's negotiability appeal is dismissed.

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

Jerry L. Calhoun, Chairman Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

Separate Opinion of Member Frazier

I respectfully dissent from my colleagues' dismissal of the union's petition for review in this case. 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 would be effective where the Agency has filed timely exceptions to the interest arbitrator's award. Such a disapproval would provide the 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 interest arbitration award in this case, which the Authority resolved in Social Security Administration and National Council of SSA Field Operations Locals (NCSSAFOL), American Federation of Government Employees, AFL - CIO (AFGE), 25 FLRA No. 17, request for reconsideration denied, 26 FLRA No. 7 (1987). Consistent with the views expressed in my opinion in DODDS (Alexandria), cited above, 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. 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.

An additional advantage which might flow from such consolidation could be more efficient enforcement proceedings should they be required. Thus, for example, in the companion proceeding in SSA and NCSSAFOL, the Authority rejected the Agency's arguments that certain portions of Article 7, Section 2 were contrary to the Statute. SSA and NCSSAFOL, slip op. 3-5. In SSA and NCSSAFOL, the Authority concluded that the Agency's arguments did not provide a basis for finding the award deficient, and allowed the award to stand. Any Agency noncompliance with those portions of the arbitrator's award would constitute an unfair labor practice, for example, Department of the Air Force, Air Force Logistics Command v. FLRA, 775 F.2d 727 (6th Cir. 1985), enforcing United States Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio and Council 214, American Federation of Government Employees, AFL - CIO, 15 FLRA 151 (1984), and would be required to be addressed through the unfair labor practice procedures under section 7118 of the Statute. Id.  Authority decisions in negotiability proceedings under section 7117 in which the Authority reviews an agency head's determination under section 7114(c) have a different consequence. In such cases, where the Authority has rejected agency arguments that a particular provision is nonnegotiable, the Authority regularly issues an order to the agency to rescind its disapproval as to that provision. See for example, American Federation of Government Employee, AFL - CIO, Local 1858 and U.S. Army Missile Command, the U.S. Army Test, Measurement, and Diagnostic Equipment Supply Group, 27 FLRA No. 14 (1987). Agency noncompliance with Authority orders in negotiability cases provides the basis for the institution by the Authority of enforcement proceedings in an appropriate United States Court of Appeals pursuant to 5 U.S.C. 7123(b), without the necessity for an intervening unfair labor practice proceeding. See for example, FLRA v. OPM, 778 F.2d 844 (D.C. Cir. 1985).

Consistent with my opinion in DODDS (Alexandria), I believe that it would have been appropriate to consolidate this case with SSA and NCSSAFOL and to have issued a single decision. In the alternative, I believe that it is now appropriate to issue a negotiability decision in this case. Rather than dismiss the Union's petition for review as do my colleagues, I would therefore have accepted the case as properly before the Authority. On the basis of the Authority's decision in SSA and NCSSAFOL, I would have determined that the disputed language in Article 7, Section 2 was within the duty to bargain, and would have issued an order requiring the Agency to rescind its disapproval as to those provisions.

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

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX

The two provisions here in dispute provide:

Article 7, Section 2

This Supplemental Agreement shall become effective in accordance with law and upon ratification by the union and shall be coterminous with the SSA/AFGE National Agreement and any extensions thereof.

In the event the union fails to ratify the Supplemental Agreement, the parties will meet within 60 days to reopen negotiations on all affected provisions. Implementation of the remaining provisions will not be delayed.

If the Agency Head disapproves any portion of this Agreement, the parties will meet within 60 days to reopen negotiations on all affected provisions. Implementation of the remaining provisions will not be delayed.

An allegation by either party that there is no duty to bargain on a specific proposal shall not delay implementation of the remaining provisions.

Article 9, Section 7G.3

3. Pregnant Employees

Any pregnant VDT operator will be permitted to transfer upon request to another function during her pregnancy without adverse effect. If a pregnant VDT operator chooses to continue performing VDT functions, she may require special considerations. [ v27 p]

FOOTNOTES

Footnote 1 Member Frazier dissents for the reasons stated in his separate opinion.

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