National Federation of Federal Employees, Local 1332 (Union) and Department of the Army, Headquarters, Army Materiel Development and Readiness Command (Activity)  

 5 FLRA No. 80
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1332
 (Union)
 
 and
 
 DEPARTMENT OF THE ARMY
 HEADQUARTERS, U.S. ARMY
 MATERIEL DEVELOPMENT AND
 READINESS COMMAND
 (Activity)
 
                                            Case No. 0-NG-455
 
                   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 (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE THAT THE LOCAL
 PARTIES (NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1332 AND
 DEPARTMENT OF THE ARMY, HEADQUARTERS, U.S. ARMY MATERIEL DEVELOPMENT AND
 READINESS COMMAND) EXECUTED A NEGOTIATED AGREEMENT ON JANUARY 14, 1981,
 AND SUBMITTED IT TO THE DEPARTMENT OF THE ARMY FOR REVIEW AND APPROVAL
 IN ACCORDANCE WITH SECTION 7114(C) OF THE STATUTE;  AND THAT BY A
 TELEPHONE CALL ON FEBRUARY 12, 1981, THE MATERIEL DEVELOPMENT AND
 READINESS COMMAND NOTIFIED LOCAL 1332 THAT THE DEPARTMENT OF THE ARMY
 HAD ISSUED A LETTER DISAPPROVING A NUMBER OF PROVISIONS OF THE
 COLLECTIVE BARGAINING AGREEMENT AS BEING INCONSISTENT WITH APPLICABLE
 LAW.  ON MARCH 11, 1981, THE MATERIEL READINESS AND DEVELOPMENT COMMAND
 ISSUED A LETTER TO THE UNION IN WHICH SPECIFIC SECTIONS OF THE
 NEGOTIATED AGREEMENT THAT WERE NOT ACCEPTABLE TO THE ARMY WERE
 IDENTIFIED.  THIS WRITTEN NOTICE TO THE UNION WAS THUS DATED FIFTY-SIX
 DAYS AFTER THE COLLECTIVE BARGAINING AGREEMENT WAS SIGNED, ON JANUARY
 14, 1981.
 
    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.
 
    THE AUTHORITY HAS PREVIOUSLY ESTABLISHED THAT AN AGENCY HEAD'S
 DISAPPROVAL OF A LOCALLY NEGOTIATED AGREEMENT UNDER SECTION 7114(C)(3)
 OF THE STATUTE MUST BE SERVED ON THE UNION INVOLVED WITHIN 30 DAYS FROM
 THE DATE THE AGREEMENT IS EXECUTED BY THE PARTIES.  /1/ IN ADDITION
 SECTION 2429.27(B) OF THE AUTHORITY'S RULES AND REGULATIONS PROVIDES
 THAT SERVICE OF ANY DOCUMENT OR PAPER BY ANY PARTY, INCLUDING DOCUMENTS
 AND PAPER SERVED BY ONE PARTY ON ANOTHER, SHALL BE MADE BY CERTIFIED
 MAIL OR IN PERSON.  THUS, AN AGENCY HEAD'S NOTICE OF DISAPPROVAL OF A
 LOCALLY NEGOTIATED AGREEMENT MUST BE IN WRITTEN FORM AND EITHER MAILED
 BY CERTIFIED MAIL OR DELIVERED IN PERSON TO THE UNION'S DESIGNATED
 REPRESENTATIVE WITHIN THE TIME LIMIT PRESCRIBED.  ABSENT SUCH TIMELY
 SERVICE OF THE DISAPPROVAL, THE AGREEMENT BECOMES EFFECTIVE ON THE 31ST
 DAY AND IS BINDING ON THE PARTIES THEREAFTER, SUBJECT, OF COURSE, TO THE
 PROVISIONS OF THE STATUTE AND ANY OTHER APPLICABLE LAW, RULE, OR
 REGULATION.
 
    IN THIS CASE, AS PREVIOUSLY INDICATED, THE PARTIES' NEGOTIATED
 AGREEMENT WAS EXECUTED ON JANUARY 14, 1981, AND SUBMITTED FOR AGENCY
 REVIEW AND APPROVAL.  ALTHOUGH A TELEPHONE CALL WAS MADE TO THE UNION BY
 THE ACTIVITY ON FEBRUARY 12, 1981, THE UNION WAS NOT SERVED WITH THE
 AGENCY HEAD'S DISAPPROVAL UNTIL MARCH 11, 1981, OR FIFTY-SIX 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 FEBRUARY 14, 1981, 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 FEBRUARY 14, 1981, 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
 PROCEEDING) 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.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., MAY 14, 1981
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1862 AND
 DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH SERVICE,
 INDIAN HEALTH SERVICE, PHOENIX, ARIZONA, 3 FLRA NO. 25(1980).  ACCORD,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1858 AND
 U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, 4 FLRA NO.
 47(1980), (REQUEST FOR RECONSIDERATION DENIED MARCH 5, 1981).