National Federation of Federal Employees, Local 951 (Union) and Department of the Interior, Bureau of Reclamation, Mid-Pacific Region, Sacramento, California (Agency)  

 6 FLRA No. 126
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 951
 Union
 
 and
 
 DEPARTMENT OF THE INTERIOR,
 BUREAU OF RECLAMATION,
 MID-PACIFIC REGION,
 SACRAMENTO, CALIFORNIA
 Agency
 
                                            Case No. O-NG-269
 
                   ORDER DISMISSING NEGOTIABILITY APPEAL
 
    THIS MATTER IS 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. 7101-7135).
 FOR THE REASONS INDICATED BELOW, IT HAS BEEN DETERMINED THAT THE
 PETITION WAS UNTIMELY FILED AND CANNOT BE ACCEPTED FOR REVIEW.
 
    SECTION 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.3) PROVIDES, IN RELEVANT PART:
 
    THE TIME LIMIT FOR FILING A PETITION FOR REVIEW IS FIFTEEN (15) DAYS
 AFTER THE DATE THE
 
    AGENCY'S ALLEGATION THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT
 EXTEND TO THE MATTER
 
    PROPOSED TO BE BARGAINED IS SERVED ON THE EXCLUSIVE REPRESENTATIVE.
 
    FROM THE RECORD BEFORE THE AUTHORITY IT APPEARS THAT, IN THE COURSE
 OF REVIEWING THE LOCAL PARTIES' AGREEMENT PURSUANT TO SECTION 7114(C) OF
 THE STATUTE, THE AGENCY DISAPPROVED A PARTICULAR PROVISION IN THE
 AGREEMENT, ALLEGING THAT THE PROVISION WAS NONNEGOTIABLE.  THE UNION
 CONCEDES THAT A MEMORANDUM FROM THE AGENCY TO THIS EFFECT WAS SERVED ON
 THE UNION OF FEBRUARY 14, 1980.  THE UNION DID NOT FILE ITS PETITION FOR
 REVIEW IN THE CASE UNTIL MARCH 6, 1980, WHICH IS MORE THAN FIFTEEN (15)
 DAYS FROM THE DATE IT WAS SERVED WITH THE AGENCY'S MEMORANDUM.  THE
 PETITION FOR REVIEW, THEREFORE, WAS UNTIMELY FILED UNDER THE AUTHORITY'S
 RULES.  /1/
 
    AS THE PETITION FOR REVIEW WAS UNTIMELY FILED, AND APART FROM OTHER
 CONSIDERATIONS, /2/ THE PETITION MUST BE AND IT IS HEREBY DISMISSED.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1981.
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 896 AND DEFENSE PRINTING SERVICE, ANNAPOLIS, MARYLAND, 6 FLRA NO.
 39(1981)
 
    /2/ THE UNION ASSERTS, AMONG OTHER THINGS, THAT THE PARTIES'
 AGREEMENT WAS EXECUTED ON A PARTICULAR DATE AND THAT THE AGENCY HEAD DID
 NOT DISAPPROVE THE PROVISION HERE INVOLVED WITHIN THE TIME LIMIT SET
 FORTH IN SECTION 7114(C) OF THE STATUTE, I.E., WITHIN 30 DAYS FROM THE
 ASSERTED DATE OF EXECUTION;  AND, THEREFORE, THAT THE AGREEMENT WENT
 INTO EFFECT IN ITS ENTIRETY.  THE AGENCY CONTENDS THAT EXECUTION OF THE
 AGREEMENT WAS NOT COMPLETED UNTIL A DATE LATER THAN THAT CLAIMED BY THE
 UNION;  AND THEREFORE, THAT THE AGREEMENT PROVISION WAS EFFECTIVELY
 DISAPPROVED WITHIN THE PRESCRIBED TIME PERIOD.  THE ESSENCE OF THIS
 DISPUTE CONCERNS FACTUAL ISSUES, WHICH ARE NOT APPROPRIATE FOR
 RESOLUTION UNDER THE NEGOTIABILITY PROCEDURES ESTABLISHED IN SECTION
 7117 OF THE STATUTE AND PART 2424, OF THE AUTHORITY'S RULES AND
 REGULATIONS.  THE PROPER FORUM IN WHICH TO RAISE AND RESOLVE THE FACTUAL
 ISSUES WOULD BE AN UNFAIR LABOR PRACTICE PROCEEDING UNDER SECTION 7118
 OF THE STATUTE AND PART 2423 OF THE REGULATIONS, WHICH INCLUDE
 INVESTIGATION AND HEARING PROCEDURES.  (SEE, E.G., AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO. 15(1981), AND CASES CITED
 THEREIN.) IF IT WERE DETERMINED IN SUCH APPROPRIATE FORUM THAT THE
 PARTIES' AGREEMENT WAS FULLY EXECUTED ON THE DAY ASSERTED BY THE UNION,
 AND THAT THE PARTIES' AGREEMENT, INCLUDING THE PROVISION WHICH THE
 AGENCY SOUGHT TO DISAPPROVE, HAD GONE INTO EFFECT, THE PROVISION WOULD
 BE BINDING ON THE PARTIES SUBJECT ONLY TO THE REQUIREMENTS OF THE
 STATUTE AND ANY OTHER APPLICABLE LAW, RULE OR REGULATION.  A QUESTION AS
 TO THE VALIDITY OF SUCH PROVISION COULD BE RAISED IN APPROPRIATE
 PROCEEDINGS (SUCH AS GRIEVANCE ARBITRATION OR UNFAIR LABOR PRACTICE
 PROCEEDINGS), AND IF THE PROVISION WAS FOUND TO BE VIOLATIVE OF THE
 STATUTE OR ANY OTHER APPLICABLE LAW, RULE OR REGULATION, IT WOULD NOT BE
 ENFORCEABLE, BUT, RATHER, WOULD BE DEEMED VOID AND UNENFORCEABLE.  (SEE,
 E.G., NEW YORK STATE NURSES ASSOCIATION AND VETERANS ADMINISTRATION,
 BRONX MEDICAL CENTER, 6 FLRA NO. 30(1981)).