Washington Area Metal Trades Council, AFL-CIO (Union) and Naval Research Laboratory, Washington, DC (Activity)

 



[ v05 p596 ]
05:0596(79)NG
The decision of the Authority follows:


 5 FLRA No. 79
 
 WASHINGTON AREA METAL
 TRADES COUNCIL, AFL-CIO
 (Union)
 
 and
 
 NAVAL RESEARCH LABORATORY,
 WASHINGTON, D.C.
 (Activity)
 
                                            Case No. 0-NG-292
 
                   ORDER DISMISSING NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT STATUTE
 (5 U.S.C. 7101 ET SEQ.  (SUPP. III 1979)).
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE THAT THE LOCAL
 PARTIES EXECUTED A NEGOTIATED AGREEMENT ON OR BEFORE FEBRUARY 13, 1980,
 AND SUBMITTED IT TO THE AGENCY FOR REVIEW AND APPROVAL IN ACCORDANCE
 WITH SECTION 7114(C) OF THE STATUTE;  AND THAT BY LETTER SERVED UPON THE
 UNION ON MARCH 25, 1980, THE AGENCY NOTIFIED THE UNION THAT IT HAD
 DISAPPROVED A NUMBER OF PROVISIONS OF THAT AGREEMENT.  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)(3) OF THE STATUTE, AN AGREEMENT WHICH HAS
 NOT BEEN APPROVED OR DISAPPROVED BY THE AGENCY INVOLVED WITHIN 30 DAYS
 FROM 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.
 
    IN THE STATEMENT OF POSITION, THE AGENCY ASSERTS, AMONG OTHER THINGS,
 THAT IT DID DISAPPROVE CERTAIN PROVISIONS OF THE CONTRACT ON MARCH 3,
 1980 AND COMMUNICATED THE DISAPPROVAL TO NAVY PERSONNEL IN AN INTERNAL
 MEMO.  THE AGENCY CONTENDS THAT 5 U.S.C.  7114(C) SPEAKS ONLY TO THE
 ACTION OF THE AGENCY HEAD, NOT TO THE NOTIFICATION OF THE UNION AND THAT
 FAILURE TO NOTIFY THE UNION DOES NOT INVALIDATE THE AGENCY HEAD'S
 ACTION.
 
    THE AUTHORITY HAS PREVIOUSLY ESTABLISHED, HOWEVER, THAT AN AGENCY
 HEAD'S DISAPPROVAL OF A LOCALLY NEGOTIATED AGREEMENT UNDER SECTION
 7114(C)(3) OF THE STATUTE MUST BE SERVED ON THE UNION INVOLVED WITHIN 30
 DAYS FROM THE DATE THE AGREEMENT IS EXECUTED BY THE PARTIES.  /1/ IN
 ADDITION, SECTION 2429.27(B) OF THE AUTHORITY'S RULES AND REGULATIONS
 PROVIDES THAT SERVICE OF ANY DOCUMENT OR PAPER BY ANY PARTY, INCLUDING
 DOCUMENTS AND PAPERS SERVED BY ONE PARTY ON ANOTHER, SHALL BE MADE BY
 CERTIFIED MAIL OR IN PERSON.  THUS, AN AGENCY HEAD'S NOTICE OF
 DISAPPROVAL OF A LOCALLY NEGOTIATED AGREEMENT MUST BE IN WRITTEN FORM
 AND EITHER MAILED BY CERTIFIED MAIL OR DELIVERED IN PERSON TO THE
 UNION'S DESIGNATED REPRESENTATIVE WITHIN THE TIME LIMIT PRESCRIBED.
 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.
 
    IN THIS CASE, AS PREVIOUSLY INDICATED, THE PARTIES' NEGOTIATED
 AGREEMENT WAS EXECUTED ON OR BEFORE FEBRUARY 13, 1980, AND SUBMITTED FOR
 AGENCY REVIEW AND APPROVAL.  HOWEVER, THE AGENCY'S DISAPPROVAL WAS NOT
 SERVED ON THE UNION UNTIL MARCH 25, 1980, MORE THAN 30 DAYS FROM THE
 DATE THE AGREEMENT WAS EXECUTED AND SUBMITTED FOR APPROVAL.  THEREFORE,
 UNDER SECTION 7114(C)(3) OF THE STATUTE, THE PARTIES' AGREEMENT WENT
 INTO EFFECT NO LATER THAN MARCH 16, 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 BEFORE MARCH 16, 1980, THE
 AGENCY'S SUBSEQUENT DISAPPROVAL RAISES NO DISPUTE CONCERNING THE TERMS
 OF SUCH AGREEMENT WHICH IS COGNIZABLE UNDER SECTION 7117 OF THE STATUTE.
 
    OUR CONCLUSION THAT THE PROPRIETY OF THE AGENCY'S DISAPPROVAL OF A
 NUMBER OF THE AGREEMENT PROVISIONS 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 THERE 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., MAY 14, 1981
 
                   JAMES J. SHEPARD, EXECUTIVE DIR