23:0720(93)NG - NTEU Chapter 52 and IRS, Austin District -- 1986 FLRAdec NG
[ v23 p720 ]
The decision of the Authority follows:
23 FLRA No. 93 NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 52 Union and INTERNAL REVENUE SERVICE AUSTIN DISTRICT Agency Case No. 0-NG-1163 ORDER DISMISSING PETITION FOR REVIEW This matter 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 reason set forth below, the Union's appeal must be dismissed. From the Union's petition for review and the Agency's statement of position, it appears that the local parties signed a negotiated agreement on May 10, 1985. It also appears that a controlling national agreement between the Internal Revenue Service and the National Treasury Employees Union was in effect at that time. The local parties' agreement was submitted for agency head approval under section 7114(c)(4) of the Statute. The Agency head's designee disapproved a number of provisions of the agreement. The written disapproval was served on the Union by mail on July 23, 1985. In a motion subsequently filed with the Authority the Union took the position that the Agency head's disapproval was not timely under section 7114(c). In its response to the Union's motion, the Agency indicated that neither the controlling national agreement nor the Agency's regulations contain any time limits for Agency head disapproval of local supplemental agreements. /*/ Section 7114(c) of the Statute establishes a process for approval of negotiated agreements by agencies. Section 7114(c)(1) provides that an agreement between an agency and an exclusive representative "shall be subject to approval by the head of the agency." Section 7114(c)(2) establishes a 30-day time limit for this approval process. However, the agency by agreement with the exclusive representative, by internal agency regulation, or other means can designate officials below the level of the agency head to exercise the approval authority referred to in section 7114(c)(1). In addition, section 7114(c)(3) provides that an agreement automatically becomes effective and binding on the parties on the expiration of the 30-day period prescribed in section 7114(c)(2), if the agency head (or the agency head's designee) has not acted to approve or disapprove the agreement within that period. Section 7114(c)(4) supplements the provisions of section 7114(c)(1), (2), and (3). Under section 7114(c)(4), the agency and the exclusive representative may negotiate procedures for approving locally negotiated agreements subject to a higher level controlling agreement. In the absence of such a negotiated approval procedure, section 7114(c)(4) also authorizes an agency to establish such procedures under its regulations. Therefore, while Congress has provided in section 7114(c)(2) that 30 days is sufficient time to accomplish review of a collective bargaining agreement, under section 7114(c)(4) the parties to the controlling national agreement or the agency by regulations, may prescribe an approval procedure, including a different time limit, for review of local agreements. A time limit established under section 7114(c)(4) supplants the 30-day time limit contained in section 7114(c)(2) of the Statute which otherwise would apply. Where, however, neither the controlling agreement nor agency regulations prescribe any time limit for completion of review by the agency head or a designee, the time limit mentioned in section 7114(c)(2) and (3) applies. Compared to having no time limit, reading the Statute to apply the 30-day limit of those subsections where the parties themselves have not provided otherwise best accelerates the review process and ensures that locally negotiated agreements become effective as expeditiously as possible. In this case, neither the controlling national agreement nor the Agency's regulations provide any time limits for review of the parties' locally negotiated agreement. Thus, the 30-day time limit of section 7114(c)(2) is applicable. The local parties' supplemental agreement was executed on May 10, 1985, and submitted for agency head review and approval. However, the Agency's disapproval was not served on the Union until July 23, 1985, or 73 days after the agreement was executed. Therefore, under section 7114(c)(3) of the Statute, since the Agency's disapproval was not served on the Union within the 30-day period prescribed in section 7114(c)(2), the local agreement went into effect on June 10, 1985, the 31st day after it was executed. Since the entire agreement, as negotiated and executed by the local parties, became effective on June 10, 1985, the Agency's subsequent disapproval does not raise a negotiability dispute concerning the terms of such agreement which is cognizable under section 7117 of the Statute. Our conclusion that this case does not present a negotiability dispute 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 enforceable. Rather, as the Authority has repeatedly held in like cases, 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 found to be violative of the Statute or any other applicable law, rule or regulation, they would be 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), motion for reconsideration denied, 4 FLRA 363 (1981). These requirements are applicable to agency head review of all collective bargaining agreements, including local agreements which are subject to national or other controlling agreements at higher levels of an agency, as is involved in this case. National Federation of Federal Employees, Local 1862 and Department of Health, Education and Welfare, Public Health Service, Indian Health Service, Phoenix, Arizona, 3 FLRA 182 (1980); 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). Since the Union's petition for review 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 dismissed. Issued, Washington, D.C., October 30, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In view of the result in this case the Authority finds it unnecessary to rule separately on the Union's motion or on the timeliness of the Union's response to the Agency's Statement of Position.