20:0537(65)CA - DOI, National Park Service, Colonial National Historical Park, Yorktown, Virginia and NAGE Local R4-68 -- 1985 FLRAdec CA
[ v20 p537 ]
The decision of the Authority follows:
20 FLRA No. 65 DEPARTMENT OF THE INTERIOR NATIONAL PARK SERVICE COLONIAL NATIONAL HISTORICAL PARK YORKTOWN, VIRGINIA Respondents and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-68 Charging Party Case No. 4-CA-30537 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds: The complaint alleges that Respondent Department of the Interior (Agency) violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by its actions in disapproving under section 7114(c) of the Statute /2/ specific provisions of a collective bargaining agreement more than 30 days after the agreement had been executed by the Charging Party, National Association of Government Employees, Local R4-68 (the Union) and Respondent Colonial National Historical Park (the Activity), and that both the Agency and the Activity violated the Statute by refusing thereafter to implement any part of the agreement. Respondents deny that they violated the Statute in any respect, and note that the Union was notified in writing of the disapproval of the agreement within 30 days of its execution. The General Counsel argues that a written communication handed to the Union within the 30 day period after execution of the agreement was not adequate notice to the Union since it did not specify the sections of the agreement disapproved by the Agency, nor did it give reasons why the specific sections were not within the duty to bargain. The following facts were stipulated by the parties to constitute the entire basis for the charge and complaint herein: At all material times herein, the Union has been the exclusive representative of a unit of all nonsupervisory blue-collar seasonal and permanent employees of the Colonial National Historical Park, Yorktown, Virginia. There has been in existence a collective bargaining agreement covering these employees since 1979, which remains in effect until a new agreement becomes effective. Following negotiations with the Union for a new agreement, a labor relations specialist, Bonner, employed by the National Park Service, executed a new agreement for and on behalf of the Colonial National Historical Park on April 8, 1983, covering the employees in the unit noted above. The Union had already executed the agreement. Thereafter, Bonner submitted the agreement to the Department of the Interior for approval pursuant to section 7114(c) of the Statute. On May 6, 1983, the Agency's Deputy Director of Personnel, for and on behalf of the Director of Personnel for the Department of the Interior, issued a letter to the Superintendent of the Colonial National Historical Park informing him that the new agreement negotiated with the Union was not approved, setting forth the provisions found contrary to law and the reasons therefor. A copy of this letter was also sent to the headquarters office of the National Park Service. On that same date, May 6, the National Park Service called John H. King, the Administrative Officer of the Colonial National Historical Park, and informed him of the action of the Department of the Interior concerning the new collective bargaining agreement with the Union. Thereafter, pursuant to instructions, King prepared and signed a letter informing the Union of the action of the Agency head in disapproving the new agreement, but neither specifying the provisions disapproved nor any reason for such action. This letter was hand-delivered to Union Vice President Firth on that same date, May 6. On May 18, Union President Hunt received a copy of the memorandum from the Agency's Director of Personnel to the Park Superintendent, dated May 6, 1983, wherein those provisions asserted to be outside the duty to bargain, and the reasons therefor, were specified. On May 11 and June 20, 1983, the Union sent letters to the Activity, asserting that the Agency had not acted and notified the Union within the 30 day period following the execution of the new negotiated agreement; that pursuant to the provisions of section 7114(c) of the Statute the agreement went into effect automatically; and that copies of the agreement should be implemented by distribution to the employees in the unit. On July 13, Bonner replied to the Union on behalf of the Respondent, noting that the new agreement had not been executed on behalf of Respondent until April 8, and that the Union had been informed of the Agency head's disapproval of the agreement by hand-delivered letter on May 6, and therefore the agreement would not be distributed to the employees. It is stipulated that, at no time since July 13, 1983, has any part of the new negotiated agreement been implemented by the Activity. The Authority has determined previously that a written notification of a disapproval from an agency's reviewing official to an activity pursuant to section 7114(c) of the Statute was, when served on the union involved, an allegation of nonnegotiability under section 2424.3 of the Authority's Rules and Regulations. See American Federation of Government Employees, AFL-CIO, Local 2 and Department of the Army, U.S. Army Materiel Development and Readiness Command, Harry Diamond Laboratories, 11 FLRA 359(1983). However, neither the Statute nor the Authority's Rules and Regulations specifies any form or method for accomplishing service of an agency head's disapproval of a negotiated agreement pursuant to section 7114(c) of the Statute, except as provided in section 2429.3. /3/ It has also been held previously by the Authority that where an agency head fails to notify the union involved of his disapproval of a negotiated agreement within 30 days after execution thereof, the entire agreement as negotiated becomes effective and binding on the 31st day after execution. See American Federation of Government Employees, AFL-CIO, Local 1625 and Fleet Combat Training Center, Atlantic, U.S. Department of the Navy, 14 FLRA 162(1984). /4/ In the present case, it is clear from the stipulated facts that King, serving as the agent for the Agency head herein, hand delivered to the Union's Vice President a letter clearly indicating that the Agency head had disapproved the recently executed negotiated agreement. It is also clear that such delivery was accomplished on May 6, 1983, less than 30 days after the agreement had been executed by both the Activity and the Union. In these circumstances, the Authority finds that the Agency properly and timely acted pursuant to section 7114(c) of the Statute, and that the complaint should be dismissed as to this allegation. Contrary to the argument of the General Counsel herein, there is no requirement in the Statute or the Authority's implementing Rules and Regulations requiring that such a disapproval, which, as noted previously, has been held to constitute a declaration of nonnegotiability, must be made with any particular degree of specificity. Thus, 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. Section 2424.4 of the Authority's Rules and Regulations provides that an exclusive representative's petition for review of an agency's allegation that the duty to bargain does not extend to the matter at issue must contain, inter alia, "the agency's allegation in writing that the matter, as proposed, is not within the duty to bargain in good faith . . . (.)" The only requirement that an agency support its allegation of nonnegotiability with specificity and rationale occurs after the agency has been served with a petition for review, at which time the agency has 30 days within which to file a statement of position, specifying its reasons for the allegation. /5/ Further, the General Counsel's allegation of a violation of the Statute based on the Activity's refusal to implement other parts of the contract is similarly without merit. Thus, by the plain language of section 7114(c) of the Statute, "the agreement," not a portion thereof, must be approved by the agency head. By operation of section 7114(c) the agreement goes into effect upon the approval of the agency head or upon the expiration of the 30-day period if the agency head does not approve or disapprove. In the instant case, it is clear that the agreement did not go into effect under the provisions of section 7114(c). In fact, as noted above, the Agency head properly and timely notified the Union of his disapproval of the agreement. Accordingly, the agreement at issue here is not an enforceable agreement, and the failure of the Respondent Activity to implement any portion of the local agreement not specifically disapproved by the Agency head in the absence of the parties' prior agreement to do so does not constitute a violation of the Activity's duty under the Statute to bargain in good faith. /6/ Rather, the Activity's obligation under the Statute to negotiate in good faith remains, as it has always been, to return to the bargaining table with a sincere resolve to reach agreement with the Union. /7/ In these circumstances, the Authority concludes that the Activity did not violate its duty to bargain in good faith by refusing to implement those portions of the negotiated agreement which were not disapproved by the Agency head pursuant to section 7114(c) of the Statute. /8/ ORDER IT IS ORDERED that the complaint in Case No. 4-CA-30537 be, and it hereby is, dismissed. Issued, Washington, D.C. October 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1), (5) and (8) provides: Sec. 7116. Unfair labor practices (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; * * * * (8) to otherwise fail or refuse to comply with any provision of this chapter. /2/ Section 7114(c) of the Statute provides: Sec. 7114. Representation rights and duties * * * * (c)(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the 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. (4) A local agreement subject to a national or other controlling agreement at a higher level shall be approved under the procedures of the controlling agreement or, if none, under regulations prescribed by the agency. /3/ Section 2429.27(b) provides in pertinent part: Service of any document or paper under this subchapter, by any party, including documents and papers served by one party on another, shall be made by certified mail or in person. . . . /4/ However, the validity of any provisions of such a negotiated agreement may be questioned in other appropriate proceedings, such as unfair labor practice or arbitration proceedings, and if found contrary to the Statute or other applicable law, rule, or regulation, would be deemed void and unenforceable. 14 FLRA 162, 163.1. /5/ See section 2424.6 of the Authority's Rules and Regulations. /6/ Of course, the parties may agree to implement all provisions of their local agreement not specifically disapproved by the Agency head. /7/ Cf. U.S. Department of Commerce, Bureau of the Census, 17 FLRA No. 97 (1985), where the Authority found that the Respondent Activity was obligated to renegotiate a tentative agreement which the Union membership had failed to ratify. In that case, by agreement of the parties, the ratification of any agreement reached by the parties was a condition precedent to effectuation of the agreement. When the Union membership failed to ratify the agreement, the parties were obligated to return to the bargaining table to negotiate until an acceptable agreement was reached. This obligation to bargain, in the Bureau of the Census case, was limited by the agreement of the parties that no new issue could be introduced into the bargaining beyond 12 hours after the commencement of negotiations. Similarly, in the instant case, the failure of the Agency head to approve the agreement constituted a failure of a condition precedent, and the parties were effectively returned to the bargaining table to negotiate until agreement could be reached and the Agency head approved such agreement. This obligation to bargain a new agreement is limited only by any "ground-rules" or procedures agreed upon by the parties under which negotiations were to be conducted. /8/ The Union filed a separate petition for review of the Agency's disapproval of 12 provisions of the local agreement between the Activity and the Union, pursuant to the provisions of Part 2424 of the Authority's Rules and Regulations, Expedited Review of Negotiability Issues, in Case No. 0-NG-851. Although the Union elected to process the instant case first, such issues are not raised herein, nor is resolution thereof necessary for disposition of the issues raised by this complaint.