40:0890(71)NG - NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION and U.S. DEPARTMENT OF COMMERCE NATIONAL WEATHER SERVICE WASHINGTON, D.C. -- 1991 FLRAdec NG


[ v40 p890 ]
40:0890(71)NG
The decision of the Authority follows:


 40 FLRA NO. 71
 40 FLRA 890

15 MAY 1991


            NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION
                                (Union)

                                and

                    U.S. DEPARTMENT OF COMMERCE
                     NATIONAL WEATHER SERVICE
                         WASHINGTON, D.C.
                              (Agency)

                             0-NG-1875

ORDER

     On April 16, 1991, the Authority issued an Order directing
the parties to show cause why the Union's petition for review in
the above-captioned should not be dismissed for failure to raise
negotiability issues which may be addressed by the Authority
under section 7117 Of the Statute.

     Section 7114(c)(2) of the Federal Service Labor - Management
Relations Statute (Statute) provides that the head of an agency
shall approve a collective bargaining agreement within 30  days
from the date the agreement is executed, if the agreement
complies with applicable law and regulation. Any disapproval by
an agency head must be served on the exclusive representative
within the 30  days after the execution of the agreement.
American Federation of Government Employees, AFL - CIO, Local
1760 and U.S. Department of Health and Human Services, Social
Security Administration, 28 FLRA  1142 (1987) (Social Security
Administration). A petition for review of negotiability issues
filed by a union in response to an agency head disapproval which
is not timely served on the union does not raise negotiability
issues which may be addressed by the Authority under section 7117
of the Statute. Id.

     The record in this case indicates that on September 28,
1990, in a memorandum to the Chief, Personnel Division, the
Agency's Acting Director for Personnel disapproved two provisions
of a collective bargaining agreement executed on August
29, 1990. However, nothing in the record establishes that the
disapproval was timely served on the Union. Accordingly, in the
April 16 Order to Show Cause, the Authority directed the parties
to provide evidence of the date of service of the disapproval.

     The Authority's April 16 Order stated that the parties'
response to its Order must be filed by April 30,  1991, and that
failure to comply with the order will result in dismissal of the
Union's petition. 5 C.F.R. 2424.4(c)(1). Neither party filed a
response to the Authority's Order to Show Cause on or before
April 16, 1991. 1

     As neither party responded to the Authority's Order with
evidence that the Agency's disapproval of the local parties'
agreement was served on the Union within 30  days after the
agreement was executed, the entire agreement, as negotiated and
executed, became effective and binding on September 29, 1990. 2
Therefore, the Union's petition for review does not raise a
dispute concerning an effective and binding negotiated agreement
that is cognizable under section 7117 of the Statute. It is
unnecessary, therefore, to address the Agency's request that the
Union's petition be dismissed because it is moot.

     Accordingly, as the Union's petition for review does not
meet the conditions for review under section 7117 and 5 C.F.R.
2424.1 it is dismissed.

     For the Authority.

Alicia N. Columna
Director, Case Control Office



FOOTNOTES

     Footnote 1 On May 3, 1991, the Agency filed a letter stating
that   "(t)he agency no longer intends to furlough NWS unit
employees during   the fiscal year 1991." and requests that the
Authority dismiss the   Union's petition for review as moot. On
May 7, 1991, the Union filed a response to the Agency's May 3
submission, contending that the petition   is not moot, but that
it does not oppose dismissal of its appeal on the   basis that
the Agency failed to serve its disapproval within the time  
limit established by the Statute

     Footnote 2 Provisions in the agreement that are contrary to
the   Statute or other applicable law, rule or regulation may not
be enforceable. 5 U