Indian Wells Valley Metal Trades Council, Ridgecrest, California (Union) and Department of the Navy, Naval Weapons Center (Activity)

 6 FLRA No. 63
 
 INDIAN WELLS VALLEY METAL TRADES
 COUNCIL, RIDGECREST, CALIFORNIA
 (Union)
 
 and
 
 DEPARTMENT OF THE NAVY, NAVAL
 WEAPONS CENTER
 (Activity)
 
                                            Case No. O-NG-432
 
                   ORDER DISMISSING NEGOTIABILITY APPEAL
 
    THIS CASE IS BEFORE 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. III 1979)), ON A PETITION FOR REVIEW OF A NEGOTIABILITY
 ISSUE FILED BY THE UNION.
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS, THE
 LOCAL PARTIES EXECUTED AN AGREEMENT ON OR ABOUT OCTOBER 9, 1980, AND
 SUBMITTED IT TO THE SECRETARY OF THE NAVY FOR REVIEW AND APPROVAL IN
 ACCORDANCE WITH SECTION 7114(C) OF THE STATUTE.  SUBSEQUENTLY, BY
 MEMORANDUM OF NOVEMBER 7, 1980, ADDRESSED TO THE COMMANDING OFFICER OF
 THE ACTIVITY, THE SECRETARY OF THE NAVY, AMONG OTHER THINGS, DISAPPROVED
 A PROVISION IN THE AGREEMENT WHICH IS THE SUBJECT OF THE UNION'S INSTANT
 APPEAL.  IT APPEARS FROM THE DOCUMENTS IN THE RECORD BEFORE THE
 AUTHORITY THAT A COPY OF THE SECRETARY OF THE NAVY'S MEMORANDUM WAS NOT
 SERVED ON THE UNION UNTIL ON OR ABOUT NOVEMBER 20, 1980.  THUS, THE
 AGENCY'S DISAPPROVAL WAS SERVED ON THE UNION MORE THAN 30 DAYS AFTER THE
 DATE 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)(13) OF THE STATUTE, AN AGREEMENT WHICH
 HAS NOT BEEN APPROVED OR DISAPPROVED BY THE AGENCY INVOLVED WITHIN 30
 DAYS AFTER THE DATE OF 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 IN WRITTEN FORM AND SERVED ON THE UNION INVOLVED
 WITHIN 30 DAYS FROM THE DATE THE AGREEMENT IS EXECUTED BY THE PARTIES;
 AND, 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.  /1/
 
    IN THIS CASE, AS PREVIOUSLY INDICATED, THE PARTIES' NEGOTIATED
 AGREEMENT WAS EXECUTED AND SUBMITTED FOR AGENCY REVIEW AND APPROVAL ON
 OR ABOUT OCTOBER 9, 1980.  HOWEVER, THE UNION WAS NOT SERVED WITH A COPY
 OF THE AGENCY'S DISAPPROVAL UNTIL ON OR ABOUT NOVEMBER 20, 1980, OR
 ABOUT 42 DAYS AFTER THE AGREEMENT WAS EXECUTED.  THEREFORE, UNDER
 SECTION 7114(C)(3) OF THE STATUTE, THE PARTIES' AGREEMENT WENT INTO
 EFFECT ON OR ABOUT NOVEMBER 9, 1980, 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 OR ABOUT NOVEMBER 9, 1980, 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 AGENCY'S DISAPPROVAL OF THE AGREEMENT
 PROVISION HERE INVOLVED 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 ULTIMATELY 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., JULY 30, 1981
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ NEW YORK STATE NURSES ASSOCIATION AND VETERANS ADMINISTRATION,
 BRONX MEDICAL CENTER, 6 FLRA NO. 30(1981).