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The decision of the Authority follows:
28 FLRA NO. 23
ANTILLES CONSOLIDATED EDUCATION ASSOCIATION Union and DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, ANTILLES CONSOLIDATED SCHOOL SYSTEM (ACSS) Agency Case No. 0-NG-1272
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). For the reasons stated below, the agreement in question is not a proper subject of a negotiability appeal because it became final and binding when it was not disapproved within the 30-day time limit set forth in section 7114(c)(3) of the Statute.
According to the record in the case, the parties signed a negotiated agreement on February 25, 1986. Article 39, Section e provided that the agreement should be considered executed by the parties on the day that the Union membership ratified it. The Superintendent of the Antilles Consolidated School System (ACSS) received notice of membership ratification on March 21, 1986 and notified the Agency accordingly. The Department of the Navy notified the Superintendent, ACSS, by letter dated April 18, 1986, that the agreement was disapproved. The record indicates that the Agency head's disapproval was hand-delivered to the Union on April 28, 1986.
The Union filed a petition for review of the Agency head's disapproval with the Authority on May 9, 1986. In its petition for review the Union argued that because notice of the Agency head's disapproval was not served on it until the notice was hand-delivered on April 28, more than 30 days from the date of execution of the agreement, the agreement took effect and became binding on the parties under section 7114(c)(3) of the Statute. The Union also stated that it was filing an unfair labor practice charge on the same matter but that it elected to proceed under the negotiability procedure.
By a letter dated May 16, 1986, however, the Union advised the Director of Region III of the Authority that it was selecting the unfair labor practice procedure and asked the Director to proceed accordingly. By letter of the same date, the Union advised the Authority that it had selected the unfair labor practice procedure and asked the Authority to disregard its selection of the negotiability procedure. By letter of September 3, 1986, the Union notified the Authority that the unfair labor practice charge against the Agency had been withdrawn on August 20, and that the Union desired to proceed with the negotiability appeal. In that letter the Union also stated that "the selection of the negotiability procedure does not constitute a waiver of the Association's position regarding the validity of the negotiated agreement between the parties."
On September 11, 1986, the Authority advised the Union and the Agency that it would resume the processing of the Union's negotiability appeal. The Agency subsequently requested and was granted two extensions of time for filing its Statement of Position, which was ultimately filed with the Authority on January 16, 1987. The Union then requested and was granted an extension of time for filing its Response, which was filed on March 4, 1987. The Agency subsequently filed a Supplemental Statement of Position on March 16, 1987 and the Union filed a response on April 9, 1987.
In its submissions to the Authority, the Agency has made no response to the Union's contention that the Union was not timely served with the Agency's disapproval of the agreement.
III. Analysis and Conclusions
Under section 7114(c)(3) of the Statute, an agreement which has not been approved or disapproved by the head of the agency within 30 days after its execution becomes effective and binding on the parties on the 31st day, without the approval of the agency, subject to the requirements of the Statute and any other applicable law, rule, or regulation.
It is well established that an agency head's notice of disapproval of a 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 and that the disapproval can be either mailed by certified mail or delivered in person to the union's designated representative within the 30-day time period. See American Federation of Government Employees, Local 2182, AFL - CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA No. 74 (1987); National Federation of Federal Employees, Local 1332 and Department of the Army, Headquarters, U.S. Army Materiel Development and Readiness Command, 5 FLRA 599 (1981) ; Washington Area Metal Trades Council, AFL - CIO and Naval Research Laboratory, Washington, D.C., 5 FLRA 596 (1981) (agency notified local agency personnel of disapproval but did not serve union until more than 30 days after execution of the agreement). 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 described. Absent such timely service of the disapproval, the agreement becomes effective on the 31st day and is binding on the parties thereafter, subject to the provisions of the Statute and any other applicable law, rule, or regulation. See New York State Nurses Association and Veterans Administration, Bronx Medical Center, 6 FLRA 151 (1981).
In this case, the record shows that the agreement was signed by the parties on February 25, 1986, and that it was ratified by the Union membership on March 21, 1986. Regardless of which of these dates is considered the date of execution of the agreement for purposes of section 7114(c)(2) of the Statute, the Agency's disapproval of the agreement was not timely served on the Union. The Union was not served with the disapproval until April 28, 1986, when a representative of the local activity hand-delivered a copy of the Agency's letter of disapproval to the Union president. Therefore, the parties' agreement went into effect pursuant to section 7114(c)(3) of the Statute when it was not timely disapproved by the Agency head. The Agency's disapproval raises no dispute concerning the terms of the agreement which the Authority can consider under section 7117 of the Statute.
The conclusion that there is no basis to consider the Agency's disapproval of the agreement 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 there found to be contrary to the Statute or any other applicable law, rule, or regulation, they would not be enforceable.
The Agency's disapproval of the agreement was not timely served on the union under section 7114(c)(3) of the Statute and the Union's petition for review is hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 23, 1987.
Harold D. Kessler Director, Case Management