American Federation of Government Employees, AFL-CIO, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration (Authority decision, September 23, 1987)

Final FLRA decision. The Authority dismisses the union's negotiability petition because the agency served its disapproval after the statutory review period. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 1760 and a Social Security Administration activity signed a memorandum of understanding on May 28, 1987. The agency disapproved two terms but did not serve the union until July 2, 35 days after execution. Under 5 U.S.C. § 7114(c)(3), the agreement became effective after 30 days without timely disapproval, leaving no negotiability dispute for the Authority to review. The dismissal does not validate any term contrary to law or regulation; enforceability can be contested in an appropriate later proceeding.

Decision snapshot

• Authority: Agency head review under 5 U.S.C. § 7114(c)(3); negotiability review under § 7117.
• Outcome: Petition dismissed.
• Key point: Untimely service of disapproval allows an agreement to take effect, subject to applicable law and regulation.

Full text (FLRA public release)

[ v28 p1142 ]
28:1142(149)NG

The decision of the Authority follows:

28 FLRA NO. 149

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1760

Union

and

U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION

Activity

Case No. 0-NG-1426

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 (the 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, the Union's petition for review must be dismissed.

The record in this case indicates that on May 28, 1987, the local parties executed a Memorandum of Understanding (MOU) and submitted it to the agency head for review and approval pursuant to section 7114(c) of the Statute. By memorandum of June 24, 1987, addressed to the Director of the Activity, the Agency disapproved two provisions of the MOU, item II(B) as contrary to the national agreement and item III as having been superseded by a MOU negotiated at the national level. Subsequently, the union was served with a copy of the Agency's disapproval memorandum on July 2, 1987, -- 35 days after the MOU was executed by the parties. Thereafter, the Union filed the instant petition for review.

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. Section 2429.27(b) and (d) of the Authority's Rules provide that service of an agency head's disapproval of provisions of a locally executed agreement may be made by depositing the disapproval in the mail by certified mail within 30 days from the date the agreement was executed. See American Federation of Government Employees, AFL - CIO, Local 900 and Department of the Army, Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administrative Center, St. Louis, Missouri, 18 FLRA 40 at n.1 (1985), reversed as to other matters in our decision on remand American Federation of Government Employees, AFL - CIO, Local 900 and Department of the Army, Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administrative Center, St. Louis, Missouri, 25 FLRA No. 77 (1987).

Consequently, since the Agency's disapproval was served on the Union more than 30 days after the local parties' MOU was executed, the entire agreement as negotiated and executed by the parties became effective and binding on June 28, 1987. Thus, the petition for review raises no dispute concerning the terms of such agreement which is cognizable under section 7117 of the Statute.

The conclusion that the petition is not cognizable in the present proceeding does not mean that any provisions in the agreement which are contrary to the Statute or any other applicable law, rule or regulation, thereby are 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 found to be in violation of the Statute or any other applicable law, rule or regulation, they would not be enforceable but would be void and unenforceable. See 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); 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); International Brotherhood of Electrical Workers, AFL - CIO, Local GCC 1 and Department of Energy, 17 FLRA 19 (1985).

Accordingly, 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 hereby dismissed.

For the Authority.

Issued, Washington, D.C., September 23, 1987.

Harold D. Kessler
Director of Case Management