National Federation of Federal Employees, Local 1862 (Union) and Department of Health, Education and Welfare, Public Health Service, Indian Health Service, Phoenix, Arizona (Activity)  

 3 FLRA No. 25
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1862
 (Union)
 
 and
 
 DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, PUBLIC HEALTH SERVICE,
 INDIAN HEALTH SERVICE, PHOENIX, ARIZONA
 (Activity)
 
                                            Case No. 0-NG-195
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE THAT THE LOCAL
 PARTIES EXECUTED A NEGOTIATED AGREEMENT ON JULY 17, 1979, AND SUBMITTED
 IT TO THE AGENCY FOR REVIEW AND APPROVAL IN ACCORDANCE WITH SECTION
 7114(C) OF THE STATUTE;  AND THAT BY LETTER OF OCTOBER 4, 1979, THE
 AGENCY NOTIFIED THE UNION THAT IT HAD DISAPPROVED A NUMBER OF PROVISIONS
 OF THAT AGREEMENT AS BEING INCONSISTENT WITH APPLICABLE LAW, RULE OR
 REGULATION.  THUS, THE AGREEMENT WAS EXECUTED BY THE LOCAL PARTIES ON
 JULY 17, 1979, AND THE AGENCY'S DISAPPROVAL WAS SERVED ON THE UNION BY
 MAIL ON OCTOBER 4, 1979, OR AT LEAST 79 DAYS AFTER THE AGREEMENT WAS
 EXECUTED.
 
    SECTION 7114(C) OF THE STATUTE PROVIDES IN PERTINENT PART:
 
    (C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
 REPRESENTATIVE SHALL BE SUBJECT TO
 
    APPROVAL BY THE HEAD OF AN 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.
 
    THUS, UNDER SECTION 7114(C)(3) OF THE STATUTE, AN AGREEMENT WHICH HAS
 NOT BEEN APPROVED OR DISAPPROVED BY THE AGENCY INVOLVED WITHIN 30 DAYS
 AFTER 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.
 
    IN THIS CASE, AS PREVIOUSLY INDICATED, THE PARTIES' NEGOTIATED
 AGREEMENT WAS EXECUTED ON JULY 17, 1979, AND SUBMITTED FOR AGENCY REVIEW
 AND APPROVAL.  HOWEVER, THE AGENCY'S DISAPPROVAL WAS NOT SERVED ON THE
 UNION UNTIL OCTOBER 4, 1979, OR AT LEAST 79 DAYS AFTER THE AGREEMENT WAS
 EXECUTED AND SUBMITTED FOR APPROVAL.  THEREFORE, UNDER SECTION
 7114(C)(3) OF THE STATUTE, THE PARTIES' AGREEMENT WENT INTO EFFECT NO
 LATER THAN AUGUST 17, 1979, AND IS BINDING ON THE PARTIES, SUBJECT ONLY
 TO THE REQUIREMENTS OF THE STATUTE AND ANY OTHER APPLICABLE LAW, RULE OR
 REGULATION.
 
    CONSEQUENTLY, SINCE THE ENTIRE AGREEMENT, AS NEGOTIATED AND EXECUTED
 BY THE PARTIES, BECAME EFFECTIVE NO LATER THAN AUGUST 17, 1979, THE
 AGENCY'S SUBSEQUENT DISAPPROVAL RAISES NO DISPUTE CONCERNING THE TERMS
 OF SUCH AGREEMENT WHICH IS COGNIZABLE UNDER SECTION 7117 OF THE STATUTE.
 
    OUR CONCLUSION THAT THE PROPRIETY OF THE AGENCY'S DISAPPROVAL OF A
 NUMBER OF THE AGREEMENT PROVISIONS 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.
 
    ACCORDINGLY, SINCE THE UNION'S APPEAL 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,
 THE APPEAL IS DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 8, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY