IBEW Local GCC 1 and Department of Energy (Authority decision, February 22, 1985)

Final FLRA decision. The Authority dismisses the union's negotiability petition because the agency disapproved contract provisions after the 30-day review period. It does not decide whether the provisions are lawful or enforceable. An aggrieved person may seek judicial review by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

IBEW Local GCC 1 and local Department of Energy officials signed a collective bargaining agreement and sent it for agency head review. The agency later disapproved several provisions, and the union sought a negotiability ruling. The Authority found that the disapproval came more than 30 days after execution, so the agreement had already become effective under 5 U.S.C. § 7114(c)(3). It dismissed the petition because there was no negotiability dispute it could decide in this proceeding. The Authority cautioned that an unlawful provision could still be challenged through an appropriate grievance, arbitration, or unfair labor practice proceeding.

Decision snapshot

• Authority: 5 U.S.C. §§ 7114(c)(3) and 7117.
• Outcome: Negotiability petition dismissed without a ruling on the provisions' legality.
• Key point: Agency head disapproval after the 30-day review period does not create a negotiability dispute over an agreement that has already taken effect.

Full text (FLRA public release)

[ v17 p21 ]

17:0021(10)CA

The decision of the Authority follows:

17 FLRA No. 10

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
LOCAL GCC 1
Union

and

DEPARTMENT OF ENERGY
Agency

Case No. 0-NG-1052

ORDER DISMISSING PETITION FOR REVIEW

This case 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 reasons indicated below, it has been determined that the Union's petition for review must be dismissed.

The record in this case indicates that on about July 23, 1984, the local parties executed a collective bargaining agreement and submitted it to the agency head for review and approval pursuant to section 7114(c) of the Statute. Subsequently, in a memorandum addressed to the Administrator of the activity, the Department of Energy disapproved several provisions in the local parties' agreement as contrary to Agency regulation. The Union was apparently notified of the Agency's determination on August 29, 1984.

Section 7114(c)(3) of the Statute provides that 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.

Consequently, since the Agency's disapproval was served on the Union more than 30 days after the contract was executed, the entire agreement as negotiated and executed by the parties became effective and binding on August 23, 1984. Thus, the petition for review raises no dispute concerning the terms of such agreement which is cognizable under section 7117 of the Statute.

However, our conclusion that the instant petition 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 there 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. See, American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, Redstone Arsenal, Alabama, 4 FLRA 361 (1980); American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, Redstone Arsenal, Alabama, 4 FLRA 363 (1981); and Point Mugu Joint Council of National Association of Government Employees, Local R12-33 and National Federation of Federal Employees, Local 1374 and Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 8 FLRA 389 (1982).

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., February 22, 1985

Harold D. Kessler
Managing Director for Case Processing