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23:0720(93)NG - NTEU Chapter 52 and IRS, Austin District -- 1986 FLRAdec NG

[ v23 p720 ]
The decision of the Authority follows:

 23 FLRA No. 93
                                            Case No. 0-NG-1163
    This matter is before the Authority pursuant to section 7105(a)(2)(E)
 of the Federal Service Labor-Management Relations Statute and section
 2424.1 of the Authority's Rules and Regulations on a petition for review
 of negotiability issues filed by the Union.  For the reason set forth
 below, the Union's appeal must be dismissed.
    From the Union's petition for review and the Agency's statement of
 position, it appears that the local parties signed a negotiated
 agreement on May 10, 1985.  It also appears that a controlling national
 agreement between the Internal Revenue Service and the National Treasury
 Employees Union was in effect at that time.  The local parties'
 agreement was submitted for agency head approval under section
 7114(c)(4) of the Statute.  The Agency head's designee disapproved a
 number of provisions of the agreement.  The written disapproval was
 served on the Union by mail on July 23, 1985.  In a motion subsequently
 filed with the Authority the Union took the position that the Agency
 head's disapproval was not timely under section 7114(c).  In its
 response to the Union's motion, the Agency indicated that neither the
 controlling national agreement nor the Agency's regulations contain any
 time limits for Agency head disapproval of local supplemental
 agreements.  /*/
    Section 7114(c) of the Statute establishes a process for approval of
 negotiated agreements by agencies.  Section 7114(c)(1) provides that an
 agreement between an agency and an exclusive representative "shall be
 subject to approval by the head of the agency." Section 7114(c)(2)
 establishes a 30-day time limit for this approval process.  However, the
 agency by agreement with the exclusive representative, by internal
 agency regulation, or other means can designate officials below the
 level of the agency head to exercise the approval authority referred to
 in section 7114(c)(1).  In addition, section 7114(c)(3) provides that an
 agreement automatically becomes effective and binding on the parties on
 the expiration of the 30-day period prescribed in section 7114(c)(2), if
 the agency head (or the agency head's designee) has not acted to approve
 or disapprove the agreement within that period.
    Section 7114(c)(4) supplements the provisions of section 7114(c)(1),
 (2), and (3).  Under section 7114(c)(4), the agency and the exclusive
 representative may negotiate procedures for approving locally negotiated
 agreements subject to a higher level controlling agreement.  In the
 absence of such a negotiated approval procedure, section 7114(c)(4) also
 authorizes an agency to establish such procedures under its regulations.
  Therefore, while Congress has provided in section 7114(c)(2) that 30
 days is sufficient time to accomplish review of a collective bargaining
 agreement, under section 7114(c)(4) the parties to the controlling
 national agreement or the agency by regulations, may prescribe an
 approval procedure, including a different time limit, for review of
 local agreements.  A time limit established under section 7114(c)(4)
 supplants the 30-day time limit contained in section 7114(c)(2) of the
 Statute which otherwise would apply.  Where, however, neither the
 controlling agreement nor agency regulations prescribe any time limit
 for completion of review by the agency head or a designee, the time
 limit mentioned in section 7114(c)(2) and (3) applies.  Compared to
 having no time limit, reading the Statute to apply the 30-day limit of
 those subsections where the parties themselves have not provided
 otherwise best accelerates the review process and ensures that locally
 negotiated agreements become effective as expeditiously as possible.
    In this case, neither the controlling national agreement nor the
 Agency's regulations provide any time limits for review of the parties'
 locally negotiated agreement.  Thus, the 30-day time limit of section
 7114(c)(2) is applicable.  The local parties' supplemental agreement was
 executed on May 10, 1985, and submitted for agency head review and
 approval.  However, the Agency's disapproval was not served on the Union
 until July 23, 1985, or 73 days after the agreement was executed.
 Therefore, under section 7114(c)(3) of the Statute, since the Agency's
 disapproval was not served on the Union within the 30-day period
 prescribed in section 7114(c)(2), the local agreement went into effect
 on June 10, 1985, the 31st day after it was executed.
    Since the entire agreement, as negotiated and executed by the local
 parties, became effective on June 10, 1985, the Agency's subsequent
 disapproval does not raise a negotiability dispute concerning the terms
 of such agreement which is cognizable under section 7117 of the Statute.
    Our conclusion that this case does not present a negotiability
 dispute 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 enforceable.  Rather, as the Authority has repeatedly
 held in like cases, 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 found to be violative of the Statute or any other
 applicable law, rule or regulation, they would be void and
 unenforceable.  See American Federation of Government Employees,
 AFL-CIO, Local 1858 and U.S. Army Missile Command, Redstone Arsenal,
 Alabama, 4 FLRA 361 (1980), motion for reconsideration denied, 4 FLRA
 363 (1981).  These requirements are applicable to agency head review of
 all collective bargaining agreements, including local agreements which
 are subject to national or other controlling agreements at higher levels
 of an agency, as is involved in this case.  National Federation of
 Federal Employees, Local 1862 and Department of Health, Education and
 Welfare, Public Health Service, Indian Health Service, Phoenix, Arizona,
 3 FLRA 182 (1980);  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).
    Since the Union's petition for review 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 dismissed.
    Issued, Washington, D.C., October 30, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (*) In view of the result in this case the Authority finds it
 unnecessary to rule separately on the Union's motion or on the
 timeliness of the Union's response to the Agency's Statement of