Petitioner, the American Federation of Government Employees, AFL-CIO, Local 2736 (the union) asks us to overturn a determination by the Federal Labor Relations Authority (the Authority) that the union's negotiability appeal--ordinarily entitled to expedited review under Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq. (1982)--should instead be processed as a standard unfair labor practice complaint because of the existence of a factual dispute between the union and the employing agency, the United States Air Force.

The union, a labor organization certified as exclusive collective bargaining representative for certain civilian employees of the Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan (the Air Force), entered into contract negotiations with the Air Force in February 1981. All parties agree that one subject under discussion was the practice of contracting-out certain unit work. The union proposed that the following terms be included in the collective bargaining agreement:

Section 3. The employer further agrees that:

A. Any cost study used as justification for a decision to contract-out must have the same scope of work for both in-house and contracting-out estimates.

B. Any in-house estimates on a cost study used as justification for a decision to contract-out must be based on the most efficient and cost effective organization for in-house performance.

C. No contract award shall be made until all grievance procedures, up to and including arbitration, are exhausted in regard to any contract provision pertaining to the impact and implementation of a contracting-out decision.

Appendix at 80. The Air Force protested that this language was "non-negotiable" because it violated the agency's preserved "management rights" under Section 7106(a)(2)(B) of the Federal Service Labor-Management Relations Act, 5 U.S.C. § 7101 et seq. (1982), to make all determinations with respect to contracting-out. The union then initiated appropriate procedures pursuant to 5 U.S.C. § 7117 (1982) to obtain an expedited ruling from the Authority on the negotiability of the Section 3 proposals.

The course of contract negotiations after this point is a matter of dispute between the union and the Air Force. Evidently some agreement was reached, and that agreement contained some provisions relating to contracting-out. The union claims that: (1) the executed agreement was not intended to preclude appeal on the issues claimed to be nonnegotiable because the agreement's provisions were not "substitutes" for the disputed Section 3 proposals, but were "additional" proposals on the same subject; and (2) the agreement included a contract reopener clause that provides for a negotiability appeal to the Authority in the event of nonagreement.1 The Air Force claims that the executed agreement's provisions on contracting-out were intended as substitutes for the disputed proposals and, further, that the reopener clause did not apply since the union by its conduct had waived its right to bargain on the proposals.

In resolving the union's negotiability appeal, the Authority therefore faced both the legal issue of whether the Section 3 proposals were negotiable and the factual issues of whether or not the contracting-out provisions of the executed agreement were intended as substitutes for the Section 3 proposals and whether the union had waived its rights under the contract reopener clause. The union and the Air Force submitted statements to the Authority outlining their positions, pursuant to the procedures set out in 5 U.S.C. § 7117 (1982) and 5 C.F.R. § 2424 (1982).

The Authority's decision, rendered more than 15 months after the union filed its negotiability appeal, did not address the issue of the negotiability of the union's Section 3 proposals. Instead, in a terse statement the Authority dismissed the union's appeal on the ground that the existence of factual disputes regarding the Section 3 proposals required that the entire dispute be processed through either the standard unfair labor practice procedures of 5 U.S.C. § 7118 (1982) or through the parties' own contractual grievance procedures. Both avenues would entail a hearing to resolve the factual as well as the legal issues in dispute. The decision of the Authority is attached to this opinion as Appendix A.

The union argues that both the statute, 5 U.S.C. § 7117(c) (1982), and the Constitution require resolution of this dispute through the expedited negotiability appeals procedure. We need not reach the constitutional claim2 because the statutory command, as supplemented by the legislative history, is unmistakable. Section 7117(c)(1) states: "Except in any case to which subsection (b) of this section applies, if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection." 5 U.S.C. § 7117(c)(1) (1982).3 And Section 7117(c)(6) states: "The Authority shall expedite proceedings under this subsection to the extent practicable and shall issue to the exclusive representative and to the agency a written decision on the allegation and specific reasons therefor[ ] at the earliest practicable date." 5 U.S.C. § 7117(c)(6) (1982). Read together, Sections 7117(c)(1) and 7117(c)(6) entitle the exclusive representative to review of negotiability issues expedited as much as is "practicable"; the decision whether to grant expedited review is not left to the discretion of the Authority.

Legislative history, though sparse, supports this reading of the statute. The language of Section 7117(c) was proposed by Representative Udall as a substitute for language in an earlier version of this Act, as reported by the House Committee on Post Office and Civil Service, which would have processed negotiability appeals through the standard unfair labor practice procedure, 5 U.S.C. § 7118 (1982), that the Authority seeks to use to resolve the union's negotiability appeal in this case. See 124 Cong.Rec. 29174-29182 (1978). Accepting the Udall substitute, Congress expressed its intention that negotiability disputes not be subject to the cumbersome unfair labor practice procedures, but be resolved through the streamlined Section 7117(c) process. Accord Nat'l Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 889-890 (D.C.Cir.1982) ("Congress apparently understood the severe impact of negotiability disputes on effective collective bargaining. * * * The appeals procedure is thus intended to resolve negotiability disputes speedily, thereby minimizing the interruption of normal collective bargaining.").

The Authority would seem to be arguing in this case that expedited review was not "practicable," and therefore not mandated by Section 7117(c), because factual issues existed regarding the Section 3 proposals and the expedited review procedures of Section 7117(c) are ill-suited to finding facts. On this basis, the Authority claims it had discretionary power to make the "reasonable" decision that both the negotiability and the factual issues be determined together in a standard unfair labor practice proceeding pursuant to Section 7118, or in a grievance procedure pursuant to the parties' executed agreement. We do not agree. Although we ordinarily accord ample deference to decisions of the Authority establishing procedures pursuant to its enabling statute, see Dep't of Defense v. FLRA, 659 F.2d 1140, 1158 n. 97, 1162 n. 121 (D.C.Cir.1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982), we must reject any construction by the Authority that is "inconsistent with a statutory mandate or that frustrate[s] the congressional policy underlying a statute." NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965). In this case the Authority's decision that both negotiability and factual issues be determined in an unfair labor practice or contractual grievance hearing contravenes the clear statutory mandate of Section 7117(c) that negotiability disputes be processed as expeditiously as is practicable.4 Neither the relevant statute and regulations nor the factual posture of this dispute preclude the Authority from granting expedited review of the negotiability claim while processing the factual dispute regarding the Section 3 proposals in some fashion.5 Indeed, agency regulations apparently contemplate such a bifurcated approach in some cases. See 5 C.F.R. § 2424.5 (1982).6

We therefore hold that Section 7117(c) entitles the union to expedited review of the negotiability issue in its appeal, but that the Authority has discretion to decide how to process the remaining factual issues regarding the Section 3 proposals.7 Accordingly, the petition for review is granted, and the decision of the Authority is vacated and remanded to the Authority for further proceedings consistent with this opinion.

So ordered.

UNITED STATES OF AMERICA BEFORE THE FEDERAL LABOR RELATIONS

AUTHORITY WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL

and

DEPARTMENT OF THE AIR FORCE, HEADQUARTERS 379TH COMBAT

SUPPORT GROUP (SAC), WURTSMITH AIR FORCE BASE,

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination.

In agreement with the Agency, the Authority finds that the present dispute is improperly before the Authority as a negotiability issue to be resolved pursuant to section 7117 of the Statute. Rather, it should have been processed either through the unfair labor practice procedures of the Statute or through the parties' contractual grievance procedure. In this regard, the Agency asserts that the Union has waived its right to negotiate the matters at issue since the local parties reached agreement on mutually acceptable language regarding the matters covered by the proposals contained in the Union's instant appeal to the Authority; such language was incorporated in the local agreement which was executed prior to the Union's appeal; and the parties' contractual reopener clause, relied upon by the Union, is inapplicable based upon factual circumstances surrounding the negotiation and execution of the local agreement. See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 7 FLRA No. 91 (1982).

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed.

/s/ Ronald W. Haughton

RONALD W. HAUGHTON,

/s/ Henry B. Frazier III

HENRY B. FRAZIER III,

LEON B. APPLEWHAITE,