17:0021(10)CA - OPM and AFGE Local 32 -- 1985 FLRAdec CA



[ v17 p21 ]
17:0021(10)CA
The decision of the Authority follows:


 17 FLRA No. 10
 
 INTERNATIONAL BROTHERHOOD OF
 ELECTRICAL WORKERS, AFL-CIO,
 LOCAL GCC 1
 Union
 
 and
 
 DEPARTMENT OF ENERGY
 Agency
 
                                            Case No. 0-NG-1052
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    This case is before the Authority pursuant to section 7105(a)(2)(E)
 of the Federal Service Labor-Management Relations Statute and section
 2424.1 of the Authority's Rules and Regulations on a petition for review
 of negotiability issues filed by the Union.  For the reasons indicated
 below, it has been determined that the Union's petition for review must
 be dismissed.
 
    The record in this case indicates that on about July 23, 1984, the
 local parties executed a collective bargaining agreement and submitted
 it to the agency head for review and approval pursuant to section
 7114(c) of the Statute.  Subsequently, in a memorandum addressed to the
 Administrator of the activity, the Department of Energy disapproved
 several provisions in the local parties' agreement as contrary to Agency
 regulation.  The Union was apparently notified of the Agency's
 determination on August 29, 1984.
 
    Section 7114(c)(3) of the Statute provides that 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.
 
    Consequently, since the Agency's disapproval was served on the Union
 more than 30 days after the contract was executed, the entire agreement
 as negotiated and executed by the parties became effective and binding
 on August 23, 1984.  Thus, the petition for review raises no dispute
 concerning the terms of such agreement which is cognizable under section
 7117 of the Statute.
 
    However, our conclusion that the instant petition 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.  See, American Federation of Government Employees,
 AFL-CIO, Local 1858 and U.S. Army Missile Command, Redstone Arsenal,
 Alabama, 4 FLRA 361 (1980);  American Federat