Opinion for the Court filed by Circuit Judge MIKVA.
Dissenting opinion filed by Circuit Judge SILBERMAN.
MIKVA, Circuit Judge:
The National Federation of Federal Employees (NFFE) petitions for review of the Federal Labor Relations Authority's dismissal of a complaint alleging an unfair labor practice. Because we find that the Authority improperly ordered dismissal without addressing the issues presented in the complaint, we reverse the order of dismissal and remand to the Authority for further proceedings.
I. FINALITY AND LEGALITY: THE BALANCE REACHED IN THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS ACT
The Federal Service Labor-Management Relations Act (Labor-Management Act or the Act), 5 U.S.C. § 7101-35 (1982), governs collective bargaining between federal civilian employees and management. See generally American Federation of Government Employees v. Federal Labor Relations Authority, 778 F.2d 850, 851-52 (D.C.Cir.1985) (AFGE). The Labor-Management Act confers collective bargaining rights upon employees. The Act also provides for the involvement of the Federal Service Impasses Panel (the Panel) in settling bargaining impasses. When a bargaining impasse arises between the parties, either party may request the Panel to conduct an inquiry. If the parties are unable to reach a settlement after the Panel has made initial recommendations, the Panel is empowered to hold hearings, take testimony, and "take whatever action is necessary and not inconsistent with this chapter to resolve the impasse." 5 U.S.C. § 7119 (c)(5) (B)(i) — (iii). In the interest of finality, the Panel is authorized to impose contract terms on the parties. These imposed terms become "binding on such parties during the term of the agreement, unless the parties agree otherwise." § 7119(c)(5)(C).
The Act, however, establishes a tension between the Panel's power to impose a binding provision on the parties and the statutory right of an agency head to review the provision. After the Panel has acted, the resulting agreement between the agency and its employees' exclusive representative is subject to approval by the head of the agency. § 7114(c)(1). The Labor-Management Act directs the agency head to approve the agreement within thirty 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)." § 7114(c)(2).
An agency head's disapproval of an agreement is "essentially an assertion of nonnegotiability." AFGE, 778 F.2d at 853. Under the Labor-Management Act, assertions of nonnegotiability, including the agency head's disapproval, afford the union the right to review. § 7117(c)(2). The statute also provides criteria to determine whether the matter is indeed negotiable. For example, an employer has no duty to bargain in good faith on a matter to the extent that it is "inconsistent with any Federal law or any Government-wide rule or regulation." § 7117(a)(1). If the bargaining proposal is consistent with these external authorities, but is covered by an agency rule or regulation, it is negotiable only if the Authority finds that there is no compelling need for the agency's rule or regulation. § 7117(a)(2). The exclusive bargaining agent thus places negotiability in issue when it alleges, inter alia, either that the. rule or regulation asserted by the agency as a bar to negotiations violates applicable law, or rule or regulation of appropriate authority outside the agency; or that no compelling need exists for the rule or regulation to bar negotiations on the matter. See 5 C.F.R. § 2424.1 (1985).
Thus, if the Authority determines that an Impasses Panel's provision was neither contrary to applicable external law nor contrary to an agency rule for which there is a compelling need, the agency head will have refused to negotiate on a negotiable issue. In the context of a Panel provision, the refusal will also have constituted failure to cooperate with impasse decisions. These two actions implicate the statute's prohibitions on unfair labor practices. The Act provides:
§ 7116(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;
(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;
(6) to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter.
II. The FLRA's Decision
This dispute arises out of collective bargaining between the U.S. Army Electronics Research and Development Command (ERADCOM) at Fort Monmouth, New Jersey, and NFFE Local 476, the exclusive bargaining representative for ERADCOM's civilian employees. The parties reached an impasse on issues relating to the procedures for performance appraisal of employees. The union proposed extending the period of advance notice — from 30 days to 60 days — that the agency must afford an employee before denying that employee a within-grade increase. Specifically, the proposal required ERADCOM to notify employees that they could avoid this result by improving performance to an acceptable level within sixty days. ERADCOM did not agree to this proposal, and the resulting impasse was submitted to the Panel pursuant to section 7119 of the Labor-Management Act.
The Panel deliberated and ordered ERADCOM to accept the union's proposal. Department of the Army, U.S. Army Electronics Research and Development Command, Fort Monmouth, New Jersey and Local 476, NFFE, 82 FSIP 78 (Oct. 29, 1982). In accordance with the Panel's order, ERADCOM and the union added the union's proposal to their collective bargaining agreement in December 1982.
In January 1983, ERADCOM's parent command, the United States Army Materiel Development and Readiness Command (DARCOM), rejected the sixty-day notice provision. DARCOM declared the notice provision contrary to law or regulation, and therefore not subject to negotiation. Reviewing the provision as an agency head under section 7114, DARCOM asserted that the sixty-day provision conflicted with its existing regulation, which implemented the statutory minimum of thirty days' notice for employees against whom adverse action is proposed. See 5 U.S.C. § 4303(b)(1)(A). While the statute authorizes the agency to promulgate regulations extending this period for an additional thirty days, § 4303(b)(2), the Army has not drafted any such extension.
Petitioner filed an unfair labor practices charge based on the agency head's refusal to implement the Panel provision. The charge alleged that viewed in light of the government's failure to allege nonnegotiability prior to the Panel decision, its refusal to implement the Panel's decision, and its bargaining in bad faith, the agency head's disapproval of the Panel's provision violated subsections 7116(a)(1), (a)(5), and (a)(6). The charge also stated that the government could not show a compelling need for its thirty-day notice period when numerous contracts have already been negotiated that include a provision allowing for a sixty-day period in such actions. Absent a compelling need, regulations which are not government-wide cannot be used to avoid the collective bargaining process. See § 7117(a)(2).
After receipt of the NFFE's charge, the General Counsel of the Authority issued a complaint and notice of hearing in May 1983. See § 7104(f)(2). In a stipulation, the parties asked the Authority to resolve the conflict between the agency's statutory obligation to disapprove of illegal contract provisions, on the one hand, and the agency's duty to abide by a provision that the Panel has ordered incorporated into the collective bargaining agreement.
At the time of its ruling on the stipulated issue, this basic issue of accommodating the impasse procedure with the right of an agency head to assert the agency's interpretation of a statute or regulation had not been addressed by this court. In AFGE, supra, we later upheld the FLRA's interpretation of the Labor-Management Act as authorizing an agency head to disapprove collective bargaining provisions that are contrary to law or regulation, even if those provisions were imposed on the parties by an order of the Federal Service Impasses Panel. See AFGE, 778 F.2d at 851 (affirming Interpretation and Guidance, 15 FLRA 564 (1984)).
The FLRA decided the instant case by holding that a federal agency head did not violate the unfair labor practice provisions of the statute by reviewing provisions imposed by the Panel. FLRA declined to consider whether on the facts before it the agency head's action was an unfair labor practice. In support of its decision not to reach the merits, the Authority observed that the General Counsel's complaint was incomplete; he had not alleged the agency head's disapproval of a provision that was in fact in accordance with applicable law. The agency therefore dismissed the complaint. Decision and Order of FLEA, 17 FLRA 19 (Feb. 28, 1985).
III. The Agency Head's Authority to Disapprove Contract Provisions Ordered by the Panel
At the time this case was briefed, petitioner's principal argument was that agency heads lack the authority to review, and may never reject, final orders of the Panel issued pursuant to section 7119. As we have noted, supra, we have recently settled this issue. See AFGE, 778 F.2d at 857.
Consistent with our holding in AFGE, the Authority upheld an agency head's power, in proper circumstances, to disapprove collective bargaining provisions ordered by the Panel. The Authority's decision, however, left an important issue unresolved in this dispute between NFFE and DARCOM. Neither the Authority nor our recent decision in AFGE settled the issue of whether, in disapproving the particular Panel provision at stake here, the agency head committed an unfair labor practice. NFFE argues that even conceding an agency head's general disapproval authority, the agency head in this case improperly applied his authority to a negotiable contract provision. The FLRA itself admitted in its order that if a Panel-imposed provision disapproved by an agency head is found in fact not to be contrary to applicable law, the agency head's conduct would constitute a failure or refusal "to cooperate in . impasse decisions" in violation of subsections 7116(a)(1) & (6) of the Labor-Management Act.
Instead of examining DARCOM's conduct to see if it was in fact justified, however, FLRA simply dismissed the General Counsel's complaint. The Authority relied on the General Counsel's failure to specifically allege or establish in the complaint filed with the Authority that the agency head had rejected a Panel decision that was in fact "not contrary to the Statute."
We hold that the unfair labor practices complaint, as originally filed, was sufficient to preclude the Authority from simply dismissing it without explaining why it was declining to reach the underlying issue of the Panel provision's legality. The complaint alleged that the agency head improperly refused to implement a Panel order and engaged in unfair labor practices. Since an agency head may properly refuse to implement a Panel order only under the disapproval authority of section 7114(c)(2), the charge of non-cooperation with the Panel raised a question about the accuracy of the agency head's determination that the provision violated applicable law. In alleging the agency head's refusal to implement a Panel order, the complaint necessarily implicates this underlying question of the provision's consistency witn applicable statutes and regulations. See 5 C.F.R. § 2424.1 (1985).
Since the General Counsel offered no proof on this underlying issue, the Authority need not reach it if the General Counsel has the initial burden of specifically alleging or establishing that the Panel provision disapproved by the agency was in fact not contrary to applicable law, rule, or regulation. On the other hand, the agency head may have the burden of alleging and establishing, as an affirmative defense, that the term he rejected was indeed contrary to applicable law, rule, or regulation. If the agency head has this burden, then the General Counsel's unadorned assertion that the agency head has refused to implement a Panel order is sufficient to place the underlying issue before the Authority.
We do not, in the first instance, express a view on how the Authority is to proceed in allocating the burden of proof between the General Counsel and the agency head. We simply charge the Authority with making this allocation openly, rather than sub silentio.
If the Authority places the burden of proof on the agency head, then the Authority must proceed to the merits of the General Counsel's complaint. Its inquiry then narrows to whether a compelling need exists for the current agency-specific regulation, which provides for a thirty days' notice period rather than the sixty days that the Panel ordered.
On this point the Army has volunteered little, tersely explaining that it decided not to exercise its unilateral right to provide by regulation for an additional thirty days' notice. This conclusory statement is unsatisfactory. It camouflages the erroneous notion that the agency may within its sole discretion rely on internal regulations, whether or not the agency has a compelling need for them, even when this reliance would prevent compliance with Panel decisions. As á federal employer, today's Army cannot so easily shield itself from its burden of complying with Impasses Panel decisions.
Should the Authority reach the merits of this question on remand, it must determine whether the Army's regulations are all that they can be. In this task the Authority has ample guidance. The FLRA's regulations spell out the standards the Authority should apply in determining whether there is a compelling need for an agency rule or regulation on employment conditions. See 5 C.F.R. § 2424.11 (1985).
CONCLUSION
The Authority simply dismissed the General Counsel's complaint once it made the threshold determination that the agency head's exercise of his disapproval authority under section 7114 did not per se violate his duty under section 7119 to comply with Panel-imposed provisions. Our recent opinion in AFGE reaches the same conclusion about the scope of the agency head's general disapproval power. But neither the Authority nor AFGE resolved the issue of whether the agency head erred, and thereby violated section 7116, in applying his disapproval power to the particular Panel provision in this case.
Therefore we remand this case to allow the General Counsel to pursue this charge with the Authority. If the complaint is pressed, the Authority must determine whether its allegation of a section 7119 violation is sufficient to place the consistency of the Panel provision with applicable law, rule, or regulation in issue. If it does, the Authority must proceed to examine the legality of the agency head's exercise, in this particular instance, of his undeniable disapproval power. This inquiry rests on whether DARCOM has demonstrated a compelling need for a notice period of thirty days when Congress has authorized sixty days' notice in appropriate circumstances.
The decision of the FLRA dismissing the General Counsel's complaint is therefore
Reversed and remanded.