American Federation of Government Employees, Local 1858, AFL-CIO (Union) and Army Missile Command, Redstone Arsenal, Alabama (Activity)  

 4 FLRA No. 47
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1858
 (Union)
 
 and
 
 U.S. ARMY MISSILE COMMAND,
 REDSTONE ARSENAL, ALABAMA
 (Activity)
 
                                            Case No. O-NG-268
 
                   ORDER DISMISSING 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. (SUPP. II
 1978)).
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE THAT THE LOCAL
 PARTIES EXECUTED A NEGOTIATED AGREEMENT ON NOVEMBER 27, 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 DECEMBER 28,
 1979, APPARENTLY SERVED UPON THE UNION IN PERSON, THE AGENCY NOTIFIED
 THE UNION THAT IT HAD DISAPPROVED A NUMBER OF PROVISIONS OF THAT
 AGREEMENT.  THUS, THE AGREEMENT WAS EXECUTED BY THE LOCAL PARTIES ON
 NOVEMBER 27, 1979, AND THE AGENCY'S DISAPPROVAL WAS SERVED ON THE UNION
 IN PERSON ON DECEMBER 28, 1980, OR 31 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.  THE GENERAL COUNSEL AND FOR THE
 RESPONDENT HAVE TIMELY MAILED
 
    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 NOVEMBER 27, 1979, AND SUBMITTED FOR AGENCY
 REVIEW AND APPROVAL.  HOWEVER, THE AGENCY'S DISAPPROVAL WAS NOT SERVED
 ON THE UNION UNTIL DECEMBER 28, 1979, OR 31 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 ON
 DECEMBER 28, 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 ON DECEMBER 28, 1979, THE AGENCY'S
 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,
 
    IT IS HEREBY ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS,
 DISMISSED.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
 
               HAROLD D. KESSLER, ACTING EXECUTIVE DIRECTOR
 
                         CERTIFICATION OF SERVICE
 
    COPIES OF THE AUTHORITY'S ORDER DATED SEPTEMBER 30, 1980, IN THE
 INSTANT CASE HAVE THIS DAY BEEN SENT TO THE PERSONS LISTED BELOW:
 
    MR. ROBERT L. FLETCHER
 
    PRESIDENT, LOCAL 1858
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    BUILDING 7132
 
    REDSTONE ARSENAL, ALABAMA 35809
 
    MR. W. J. SCHRADER, CHIEF
 
    LABOR AND EMPLOYEE RELATIONS DIVISION
 
    OFFICE OF THE DEPUTY CHIEF OF STAFF
 
    FOR PERSONNEL
 
    DEPARTMENT OF THE ARMY
 
    ROOM 2C655, THE PENTAGON
 
    WASHINGTON, D.C.  20310