National Weather Service Employees Organization and U.S. Department of Commerce, National Weather Service, Washington, D.C. (Authority decision, May 15, 1991)

Final FLRA decision. The Authority dismisses a negotiability petition after unproven service of an agreement disapproval. An aggrieved person may seek judicial review of this final order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). A petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The National Weather Service disapproved two provisions of a labor agreement, but the record did not show that it served the disapproval on the union within 30 days of signing. After the Authority asked for proof of service, neither party supplied it. The Authority treated the agreement as effective and binding and dismissed the union’s negotiability petition. It did not decide whether the petition had also become moot because the agency abandoned a proposed furlough.

Decision snapshot

• Authority: 5 U.S.C. § 7114(c)(2); 5 U.S.C. § 7117.
• Outcome: Negotiability petition dismissed; agreement treated as effective and binding.
• Key point: Without proof of timely service, the agency head’s disapproval did not prevent the agreement from taking effect.

Full text (FLRA public release)

[ v40 p890 ]

40:0890(71)NG

The decision of the Authority follows:

40 FLRA NO. 71
40 FLRA 890

15 MAY 1991

NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION (Union)

and

U.S. DEPARTMENT OF COMMERCE
NATIONAL WEATHER SERVICE
WASHINGTON, D.C.
(Agency)

0-NG-1875

ORDER

On April 16, 1991, the Authority issued an Order directing the parties to show cause why the Union's petition for review in the above-captioned should not be dismissed for failure to raise negotiability issues which may be addressed by the Authority under section 7117 Of the Statute.

Section 7114(c)(2) of the Federal Service Labor - Management Relations Statute (Statute) provides that the head of an agency shall approve a collective bargaining agreement within 30 days from the date the agreement is executed, if the agreement complies with applicable law and regulation. Any disapproval by an agency head must be served on the exclusive representative within the 30 days after the execution of the agreement. American Federation of Government Employees, AFL - CIO, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, 28 FLRA 1142 (1987) (Social Security Administration). A petition for review of negotiability issues filed by a union in response to an agency head disapproval which is not timely served on the union does not raise negotiability issues which may be addressed by the Authority under section 7117 of the Statute. Id.

The record in this case indicates that on September 28, 1990, in a memorandum to the Chief, Personnel Division, the Agency's Acting Director for Personnel disapproved two provisions of a collective bargaining agreement executed on August 29, 1990. However, nothing in the record establishes that the disapproval was timely served on the Union. Accordingly, in the April 16 Order to Show Cause, the Authority directed the parties to provide evidence of the date of service of the disapproval.

The Authority's April 16 Order stated that the parties' response to its Order must be filed by April 30, 1991, and that failure to comply with the order will result in dismissal of the Union's petition. 5 C.F.R. 2424.4(c)(1). Neither party filed a response to the Authority's Order to Show Cause on or before April 16, 1991. 1

As neither party responded to the Authority's Order with evidence that the Agency's disapproval of the local parties' agreement was served on the Union within 30 days after the agreement was executed, the entire agreement, as negotiated and executed, became effective and binding on September 29, 1990. 2 Therefore, the Union's petition for review does not raise a dispute concerning an effective and binding negotiated agreement that is cognizable under section 7117 of the Statute. It is unnecessary, therefore, to address the Agency's request that the Union's petition be dismissed because it is moot.

Accordingly, as the Union's petition for review does not meet the conditions for review under section 7117 and 5 C.F.R. 2424.1 it is dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office

FOOTNOTES

Footnote 1 On May 3, 1991, the Agency filed a letter stating that "(t)he agency no longer intends to furlough NWS unit employees during the fiscal year 1991." and requests that the Authority dismiss the Union's petition for review as moot. On May 7, 1991, the Union filed a response to the Agency's May 3 submission, contending that the petition is not moot, but that it does not oppose dismissal of its appeal on the basis that the Agency failed to serve its disapproval within the time limit established by the Statute

Footnote 2 Provisions in the agreement that are contrary to the Statute or other applicable law, rule or regulation may not be enforceable. 5 U.S.C. 7114(c)(3). Questions as to the validity of such provisions may be raised in other appropriate proceedings.