35:1091(119)NG - - FEMTC of Charleston and Navy, Charleston Naval Shipyard, Charleston, SC - - 1990 FLRAdec NG - - v35 p1091
[ v35 p1091 ]
The decision of the Authority follows:
35 FLRA No. 119
FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF CHARLESTON
U.S. DEPARTMENT OF THE NAVY
CHARLESTON NAVAL SHIPYARD
CHARLESTON, SOUTH CAROLINA
DECISION AND ORDER ON NEGOTIABILITY ISSUE
May 14, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns one proposal that would allow ratification of a collective bargaining agreement by the Union's membership after the completion of the Agency-head review process that is provided for in section 7114(c) of the Statute. For the reasons that follow, we find that the proposal is inconsistent with section 7114(c) of the Statute and is, therefore, nonnegotiable.
II. The Proposal
Union Section 11, Ratification/Conclusion of Negotiations. Upon completion of the negotiation of the collective bargaining agreement, Management will prepare the agreement in draft form for a 90 day review and subsequent execution of the agreed terms into final draft form. The ratification process by the Union shall commence as soon as feasible after approval and return by the Department of Navy.
III. Positions of the Parties
The Agency states that it is not questioning the ratification process itself, only the timing of the process. The Agency argues that the proposal violates section 7114(c)(2) and (3) because it allows the ratification process to occur after the 30-day period provided by the Statute for Agency-head review.
The Union describes the proposal as providing that the Agency-head review process required by section 7114(c) of the Statute would be completed before ratification by the Union's membership is undertaken. The Union argues that an interpretation of the Statute allowing the ratification process to follow completion of the Agency-head review process is consistent with the intent of Congress and is "prudent and proper." Union's Reply Brief at 6-8.
IV. Analysis and Conclusion
Section 7114(c) of the Statute provides in relevant part:(1)
(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.
The Authority has held that section 7114(c) requires that a relevant collective bargaining agreement become effective and binding on both the agency and the exclusive representative upon approval by the agency head or, in the absence of either approval or disapproval within the 30-day period for agency-head review, on the 31st day. See, for example, National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 14 FLRA 761, 764-65 (1984), reversed as to other matters sub nom. Defense Language Institute v. FLRA, 767 F.2d 1398 (9th Cir. 1985).
By providing for the ratification process to occur after the Agency-head approval process, the proposal would prevent the agreement from becoming binding on the parties as mandated by section 7114(c). Ratification, by its nature, is a precondition to the agreement becoming binding on the parties. By allowing the ratification process to occur after the completion of the Agency-head review process or expiration of the review period, the proposal is inconsistent with the provisions of section 7114(c) that govern the point at which agreements become binding on parties. That is, assuming that an agreement has not been approved or disapproved by the Agency-head during the 30-day approval period, section 7114(c)(3) specifically states that the agreement "shall be binding on the agency and the exclusive representative[.]"
The Union argues that under section 7114(c)(3) the parties may negotiate over procedures, including ratification, to implement the agreement. We do not interpret the words on which the Union relies, which appear in section 7114(c)(3), "subject to the provisions of this chapter," as authorizing the parties to negotiate implementation procedures that are inconsistent with the provisions of section 7114(c). Rather, that clause operates to render void and unenforceable any provision of an agreement that goes into effect pursuant to section 7114(c)(3) where such a provision is violative of the Statute. See 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); see also Report and Recommendations of the Federal Labor Relations Council on the Amendment of Executive Order 11491, as Amended, Labor-Management Relations in the Federal Service, January 1975; reprinted in Subcommittee on Postal Personnel and Modernization of the House Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 at 1320-23 (Comm. Print No. 96-7) (Legislative History)(2) (where an agreement went into effect automatically pursuant to Section 15 of Executive Order 11491, as amended, any provisions subsequently found to be violative of law, the Order, or appropriate regulat