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20:0537(65)CA - DOI, National Park Service, Colonial National Historical Park, Yorktown, Virginia and NAGE Local R4-68 -- 1985 FLRAdec CA

[ v20 p537 ]
The decision of the Authority follows:

 20 FLRA No. 65
 Charging Party 
                                        Case No. 4-CA-30537
                            DECISION AND ORDER
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the parties' contentions, the
 Authority finds:
    The complaint alleges that Respondent Department of the Interior
 (Agency) violated section 7116(a)(1), (5) and (8) of the Federal Service
 Labor-Management Relations Statute (the Statute) /1/ by its actions in
 disapproving under section 7114(c) of the Statute /2/ specific
 provisions of a collective bargaining agreement more than 30 days after
 the agreement had been executed by the Charging Party, National
 Association of Government Employees, Local R4-68 (the Union) and
 Respondent Colonial National Historical Park (the Activity), and that
 both the Agency and the Activity violated the Statute by refusing
 thereafter to implement any part of the agreement.  Respondents deny
 that they violated the Statute in any respect, and note that the Union
 was notified in writing of the disapproval of the agreement within 30
 days of its execution.  The General Counsel argues that a written
 communication handed to the Union within the 30 day period after
 execution of the agreement was not adequate notice to the Union since it
 did not specify the sections of the agreement disapproved by the Agency,
 nor did it give reasons why the specific sections were not within the
 duty to bargain.
    The following facts were stipulated by the parties to constitute the
 entire basis for the charge and complaint herein:
    At all material times herein, the Union has been the exclusive
 representative of a unit of all nonsupervisory blue-collar seasonal and
 permanent employees of the Colonial National Historical Park, Yorktown,
 Virginia.  There has been in existence a collective bargaining agreement
 covering these employees since 1979, which remains in effect until a new
 agreement becomes effective.
    Following negotiations with the Union for a new agreement, a labor
 relations specialist, Bonner, employed by the National Park Service,
 executed a new agreement for and on behalf of the Colonial National
 Historical Park on April 8, 1983, covering the employees in the unit
 noted above.  The Union had already executed the agreement.  Thereafter,
 Bonner submitted the agreement to the Department of the Interior for
 approval pursuant to section 7114(c) of the Statute.
    On May 6, 1983, the Agency's Deputy Director of Personnel, for and on
 behalf of the Director of Personnel for the Department of the Interior,
 issued a letter to the Superintendent of the Colonial National
 Historical Park informing him that the new agreement negotiated with the
 Union was not approved, setting forth the provisions found contrary to
 law and the reasons therefor.  A copy of this letter was also sent to
 the headquarters office of the National Park Service.
    On that same date, May 6, the National Park Service called John H.
 King, the Administrative Officer of the Colonial National Historical
 Park, and informed him of the action of the Department of the Interior
 concerning the new collective bargaining agreement with the Union.
 Thereafter, pursuant to instructions, King prepared and signed a letter
 informing the Union of the action of the Agency head in disapproving the
 new agreement, but neither specifying the provisions disapproved nor any
 reason for such action.  This letter was hand-delivered to Union Vice
 President Firth on that same date, May 6.  On May 18, Union President
 Hunt received a copy of the memorandum from the Agency's Director of
 Personnel to the Park Superintendent, dated May 6, 1983, wherein those
 provisions asserted to be outside the duty to bargain, and the reasons
 therefor, were specified.
    On May 11 and June 20, 1983, the Union sent letters to the Activity,
 asserting that the Agency had not acted and notified the Union within
 the 30 day period following the execution of the new negotiated
 agreement;  that pursuant to the provisions of section 7114(c) of the
 Statute the agreement went into effect automatically;  and that copies
 of the agreement should be implemented by distribution to the employees
 in the unit.  On July 13, Bonner replied to the Union on behalf of the
 Respondent, noting that the new agreement had not been executed on
 behalf of Respondent until April 8, and that the Union had been informed
 of the Agency head's disapproval of the agreement by hand-delivered
 letter on May 6, and therefore the agreement would not be distributed to
 the employees.  It is stipulated that, at no time since July 13, 1983,
 has any part of the new negotiated agreement been implemented by the
    The Authority has determined previously that a written notification
 of a disapproval from an agency's reviewing official to an activity
 pursuant to section 7114(c) of the Statute was, when served on the union
 involved, an allegation of nonnegotiability under section 2424.3 of the
 Authority's Rules and Regulations.  See American Federation of
 Government Employees, AFL-CIO, Local 2 and Department of the Army, U.S.
 Army Materiel Development and Readiness Command, Harry Diamond
 Laboratories, 11 FLRA 359(1983).  However, neither the Statute nor the
 Authority's Rules and Regulations specifies any form or method for
 accomplishing service of an agency head's disapproval of a negotiated
 agreement pursuant to section 7114(c) of the Statute, except as provided
 in section 2429.3.  /3/ It has also been held previously by the
 Authority that where an agency head fails to notify the union involved
 of his disapproval of a negotiated agreement within 30 days after
 execution thereof, the entire agreement as negotiated becomes effective
 and binding on the 31st day after execution.  See American Federation of
 Government Employees, AFL-CIO, Local 1625 and Fleet Combat Training
 Center, Atlantic, U.S. Department of the Navy, 14 FLRA 162(1984).  /4/
    In the present case, it is clear from the stipulated facts that King,
 serving as the agent for the Agency head herein, hand delivered to the
 Union's Vice President a letter clearly indicating that the Agency head
 had disapproved the recently executed negotiated agreement.  It is also
 clear that such delivery was accomplished on May 6, 1983, less than 30
 days after the agreement had been executed by both the Activity and the
 Union.  In these circumstances, the Authority finds that the Agency
 properly and timely acted pursuant to section 7114(c) of the Statute,
 and that the complaint should be dismissed as to this allegation.
 Contrary to the argument of the General Counsel herein, there is no
 requirement in the Statute or the Authority's implementing Rules and
 Regulations requiring that such a disapproval, which, as noted
 previously, has been held to constitute a declaration of
 nonnegotiability, must be made with any particular degree of
 specificity.  Thus, section 7117(c)(1) states:
          Except in any case to which subsection (b) of this section
       applies, if an agency involved in collective bargaining with an
       exclusive representative alleges that the duty to bargain in good
       faith does not extend to any matter, the exclusive representative
       may appeal the allegation to the Authority in accordance with the
       provisions of this subsection.
 Section 2424.4 of the Authority's Rules and Regulations provides that an
 exclusive representative's petition for review of an agency's allegation
 that the duty to bargain does not extend to the matter at issue must
 contain, inter alia, "the agency's allegation in writing that the
 matter, as proposed, is not within the duty to bargain in good faith . .
 . (.)" The only requirement that an agency support its allegation of
 nonnegotiability with specificity and rationale occurs after the agency
 has been served with a petition for review, at which time the agency has
 30 days within which to file a statement of position, specifying its
 reasons for the allegation.  /5/
    Further, the General Counsel's allegation of a violation of the
 Statute based on the Activity's refusal to implement other parts of the
 contract is similarly without merit.  Thus, by the plain language of
 section 7114(c) of the Statute, "the agreement," not a portion thereof,
 must be approved by the agency head.  By operation of section 7114(c)
 the agreement goes into effect upon the approval of the agency head or
 upon the expiration of the 30-day period if the agency head does not
 approve or disapprove.  In the instant case, it is clear that the
 agreement did not go into effect under the provisions of section
 7114(c).  In fact, as noted above, the Agency head properly and timely
 notified the Union of his disapproval of the agreement.  Accordingly,
 the agreement at issue here is not an enforceable agreement, and the
 failure of the Respondent Activity to implement any portion of the local
 agreement not specifically disapproved by the Agency head in the absence
 of the parties' prior agreement to do so does not constitute a violation
 of the Activity's duty under the Statute to bargain in good faith.  /6/
 Rather, the Activity's obligation under the Statute to negotiate in good
 faith remains, as it has always been, to return to the bargaining table
 with a sincere resolve to reach agreement with the Union.  /7/ In these
 circumstances, the Authority concludes that the Activity did not violate
 its duty to bargain in good faith by refusing to implement those
 portions of the negotiated agreement which were not disapproved by the
 Agency head pursuant to section 7114(c) of the Statute.  /8/
    IT IS ORDERED that the complaint in Case No. 4-CA-30537 be, and it
 hereby is, dismissed.
    Issued, Washington, D.C. October 28, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 7116(a)(1), (5) and (8) provides:
          Sec. 7116.  Unfair labor practices
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
                                  * * * *
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
                                  * * * *
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
    /2/ Section 7114(c) of the Statute provides:
          Sec. 7114.  Representation rights and duties
                                  * * * *
          (c)(1) An agreement between any agency and an exclusive
       representative shall be subject to approval by the head of the
          (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.
          (4) A local agreement subject to a national or other
       controlling agreement at a higher level shall be approved under
       the procedures of the controlling agreement or, if none, under
       regulations prescribed by the agency.
    /3/ Section 2429.27(b) provides in pertinent part:
          Service of any document or paper under this subchapter, by any
       party, including documents and papers served by one party on
       another, shall be made by certified mail or in person. . . .
    /4/ However, the validity of any provisions of such a negotiated
 agreement may be questioned in other appropriate proceedings, such as
 unfair labor practice or arbitration proceedings, and if found contrary
 to the Statute or other applicable law, rule, or regulation, would be
 deemed void and unenforceable.  14 FLRA 162, 163.1.
    /5/ See section 2424.6 of the Authority's Rules and Regulations.
    /6/ Of course, the parties may agree to implement all provisions of
 their local agreement not specifically disapproved by the Agency head.
    /7/ Cf. U.S. Department of Commerce, Bureau of the Census, 17 FLRA
 No. 97 (1985), where the Authority found that the Respondent Activity
 was obligated to renegotiate a tentative agreement which the Union
 membership had failed to ratify.  In that case, by agreement of the
 parties, the ratification of any agreement reached by the parties was a
 condition precedent to effectuation of the agreement.  When the Union
 membership failed to ratify the agreement, the parties were obligated to
 return to the bargaining table to negotiate until an acceptable
 agreement was reached.  This obligation to bargain, in the Bureau of the
 Census case, was limited by the agreement of the parties that no new
 issue could be introduced into the bargaining beyond 12 hours after the
 commencement of negotiations.  Similarly, in the instant case, the
 failure of the Agency head to approve the agreement constituted a
 failure of a condition precedent, and the parties were effectively
 returned to the bargaining table to negotiate until agreement could be
 reached and the Agency head approved such agreement.  This obligation to
 bargain a new agreement is limited only by any "ground-rules" or
 procedures agreed upon by the parties under which negotiations were to
 be conducted.
    /8/ The Union filed a separate petition for review of the Agency's
 disapproval of 12 provisions of the local agreement between the Activity
 and the Union, pursuant to the provisions of Part 2424 of the
 Authority's Rules and Regulations, Expedited Review of Negotiability
 Issues, in Case No. 0-NG-851.  Although the Union elected to process the
 instant case first, such issues are not raised herein, nor is resolution
 thereof necessary for disposition of the issues raised by this