[ v06 p351 ]
06:0351(63)NG
The decision of the Authority follows:
6 FLRA No. 63 INDIAN WELLS VALLEY METAL TRADES COUNCIL, RIDGECREST, CALIFORNIA (Union) and DEPARTMENT OF THE NAVY, NAVAL WEAPONS CENTER (Activity) Case No. O-NG-432 ORDER DISMISSING NEGOTIABILITY APPEAL THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ. (SUPP. III 1979)), ON A PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE FILED BY THE UNION. THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS, THE LOCAL PARTIES EXECUTED AN AGREEMENT ON OR ABOUT OCTOBER 9, 1980, AND SUBMITTED IT TO THE SECRETARY OF THE NAVY FOR REVIEW AND APPROVAL IN ACCORDANCE WITH SECTION 7114(C) OF THE STATUTE. SUBSEQUENTLY, BY MEMORANDUM OF NOVEMBER 7, 1980, ADDRESSED TO THE COMMANDING OFFICER OF THE ACTIVITY, THE SECRETARY OF THE NAVY, AMONG OTHER THINGS, DISAPPROVED A PROVISION IN THE AGREEMENT WHICH IS THE SUBJECT OF THE UNION'S INSTANT APPEAL. IT APPEARS FROM THE DOCUMENTS IN THE RECORD BEFORE THE AUTHORITY THAT A COPY OF THE SECRETARY OF THE NAVY'S MEMORANDUM WAS NOT SERVED ON THE UNION UNTIL ON OR ABOUT NOVEMBER 20, 1980. THUS, THE AGENCY'S DISAPPROVAL WAS SERVED ON THE UNION MORE THAN 30 DAYS AFTER THE DATE THE AGREEMENT WAS EXECUTED. SECTION 7114(C) OF THE STATUTE PROVIDES IN PERTINENT PART: (C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE REPRESENTATIVE SHALL BE SUBJECT TO APPROVAL BY THE HEAD OF AN 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. THUS, UNDER SECTION 7114(C)(13) OF THE STATUTE, AN AGREEMENT WHICH HAS NOT BEEN APPROVED OR DISAPPROVED BY THE AGENCY INVOLVED WITHIN 30 DAYS AFTER THE DATE OF ITS EXECUTION BECOMES EFFECTIVE AND BINDING ON THE PARTIES ON THE 31ST DAY, WITHOUT THE APPROVAL OF THE AGENCY, SUBJECT ONLY TO THE REQUIREMENTS OF THE STATUTE, AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION. THE AUTHORITY HAS PREVIOUSLY ESTABLISHED THAT AN AGENCY HEAD'S DISAPPROVAL OF A LOCALLY NEGOTIATED AGREEMENT UNDER SECTION 7114(C)(3) OF THE STATUTE MUST BE IN WRITTEN FORM AND SERVED ON THE UNION INVOLVED WITHIN 30 DAYS FROM THE DATE THE AGREEMENT IS EXECUTED BY THE PARTIES; AND, ABSENT SUCH TIMELY SERVICE OF THE DISAPPROVAL, THE AGREEMENT BECOMES EFFECTIVE ON THE 31ST DAY AND IS BINDING ON THE PARTIES THEREAFTER, SUBJECT, OF COURSE, TO THE PROVISIONS OF THE STATUTE AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION. /1/ IN THIS CASE, AS PREVIOUSLY INDICATED, THE PARTIES' NEGOTIATED AGREEMENT WAS EXECUTED AND SUBMITTED FOR AGENCY REVIEW AND APPROVAL ON OR ABOUT OCTOBER 9, 1980. HOWEVER, THE UNION WAS NOT SERVED WITH A COPY OF THE AGENCY'S DISAPPROVAL UNTIL ON OR ABOUT NOVEMBER 20, 1980, OR ABOUT 42 DAYS AFTER THE AGREEMENT WAS EXECUTED. THEREFORE, UNDER SECTION 7114(C)(3) OF THE STATUTE, THE PARTIES' AGREEMENT WENT INTO EFFECT ON OR ABOUT NOVEMBER 9, 1980, AND, IS BINDING ON THE PARTIES SUBJECT ONLY TO THE REQUIREMENTS OF THE STATUTE AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION. CONSEQUENTLY, SINCE THE ENTIRE AGREEMENT, AS NEGOTIATED AND EXECUTED BY THE PARTIES, BECAME EFFECTIVE ON OR ABOUT NOVEMBER 9, 1980, THE AGENCY'S DISAPPROVAL RAISES NO DISPUTE CONCERNING THE TERMS OF SUCH AGREEMENT WHICH IS COGNIZABLE UNDER SECTION 7117 OF THE STATUTE. OUR CONCLUSION THAT THE AGENCY'S DISAPPROVAL OF THE AGREEMENT PROVISION HERE INVOLVED IS NOT COGNIZABLE IN THE PRESENT PROCEEDING DOES NOT, OF COURSE, MEAN THAT ANY PROVISIONS IN THE AGREEMENT WHICH ARE CONTRARY TO THE STATUTE OR ANY OTHER APPLICABLE LAW, RULE, OR REGULATION, ARE THEREBY ENFORCEABLE. RATHER, A QUESTION AS TO THE VALIDITY OF SUCH PROVISIONS MAY BE RAISED IN OTHER APPROPRIATE PROCEEDINGS (SUCH AS GRIEVANCE ARBITRATION AND UNFAIR LABOR PRACTICE PROCEEDINGS) AND, IF THE AGREEMENT PROVISIONS ARE ULTIMATELY FOUND TO BE VIOLATIVE OF THE STATUTE OR ANY OTHER APPLICABLE LAW, RULE, OR REGULATION, THEY WOULD NOT BE ENFORCEABLE BUT WOULD BE DEEMED VOID AND UNENFORCEABLE. ACCORDINGLY, SINCE THE UNION'S APPEAL DOES NOT MEET THE CONDITIONS FOR REVIEW UNDER SECTION 7117 OF THE STATUTE AND SECTION 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS, AND APART FROM OTHER CONSIDERATIONS. IT IS HEREBY ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS, DISMISSED. FOR THE AUTHORITY. ISSUED, WASHINGTON, D.C., JULY 30, 1981 JAMES J. SHEPARD, EXECUTIVE DIRECTOR --------------- FOOTNOTES: --------------- /1/ NEW YORK STATE NURSES ASSOCIATION AND VETERANS ADMINISTRATION, BRONX MEDICAL CENTER, 6 FLRA NO. 30(1981).