National Federation of Federal Employees, Local 1862 (Union) and Department of Health, Education and Welfare, Public Health Service, Indian Health Service, Phoenix, Arizona (Activity) (Authority decision, May 8, 1980)

Final FLRA decision. The Authority dismissed this negotiability appeal without a merits ruling. Judicial review of final Authority orders is governed by 5 U.S.C. § 7123(a), subject to its statutory exceptions.

Plain-English summary

An Indian Health Service union appealed the agency head’s disapproval of provisions in a negotiated agreement. The Authority found the disapproval was served more than 30 days after execution, so the agreement had already taken effect under the statute. The late disapproval raised no issue suitable for a negotiability appeal, and the Authority dismissed it. The decision said any unlawful provision could still be challenged in another appropriate proceeding.

Decision snapshot

• Authority: 5 U.S.C. § 7114(c)(3); 5 U.S.C. § 7117.
• Outcome: Negotiability appeal dismissed without deciding the provisions’ legality.
• Key point: A late agency head disapproval could not create a negotiability dispute over the effective agreement.

Full text (FLRA public release)

[ v03 p182 ]

03:0182(25)NG

The decision of the Authority follows:

3 FLRA No. 25

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1862
(Union)

and

DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, PUBLIC HEALTH SERVICE,
INDIAN HEALTH SERVICE, PHOENIX, ARIZONA
(Activity)

Case No. 0-NG-195

DECISION ON NEGOTIABILITY APPEAL

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).

THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE THAT THE LOCAL
PARTIES EXECUTED A NEGOTIATED AGREEMENT ON JULY 17, 1979, AND SUBMITTED
IT TO THE AGENCY FOR REVIEW AND APPROVAL IN ACCORDANCE WITH SECTION
7114(C) OF THE STATUTE; AND THAT BY LETTER OF OCTOBER 4, 1979, THE
AGENCY NOTIFIED THE UNION THAT IT HAD DISAPPROVED A NUMBER OF PROVISIONS
OF THAT AGREEMENT AS BEING INCONSISTENT WITH APPLICABLE LAW, RULE OR
REGULATION. THUS, THE AGREEMENT WAS EXECUTED BY THE LOCAL PARTIES ON
JULY 17, 1979, AND THE AGENCY'S DISAPPROVAL WAS SERVED ON THE UNION BY
MAIL ON OCTOBER 4, 1979, OR AT LEAST 79 DAYS AFTER THE AGREEMENT WAS
EXECUTED.

SECTION 7114(C) OF THE STATUTE PROVIDES IN PERTINENT PART:

(C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
REPRESENTATIVE SHALL BE SUBJECT TO

APPROVAL BY THE HEAD OF AN AGENCY.

(2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
FROM THE DATE THE

AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN ACCORDANCE WITH THE
PROVISIONS OF THIS CHAPTER

AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION (UNLESS THE AGENCY
HAS GRANTED AN EXCEPTION

TO THE PROVISION).

(3) IF THE HEAD OF THE AGENCY DOES NOT APPROVE OR DISAPPROVE THE
AGREEMENT WITHIN THE

30-DAY PERIOD, THE AGREEMENT SHALL TAKE EFFECT AND SHALL BE BINDING
ON THE AGENCY AND THE

EXCLUSIVE REPRESENTATIVE SUBJECT TO THE PROVISIONS OF THIS CHAPTER
AND ANY OTHER APPLICABLE

LAW, RULE, OR REGULATION.

THUS, UNDER SECTION 7114(C)(3) OF THE STATUTE, AN AGREEMENT WHICH HAS
NOT BEEN APPROVED OR DISAPPROVED BY THE AGENCY INVOLVED WITHIN 30 DAYS
AFTER 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.

IN THIS CASE, AS PREVIOUSLY INDICATED, THE PARTIES' NEGOTIATED
AGREEMENT WAS EXECUTED ON JULY 17, 1979, AND SUBMITTED FOR AGENCY REVIEW
AND APPROVAL. HOWEVER, THE AGENCY'S DISAPPROVAL WAS NOT SERVED ON THE
UNION UNTIL OCTOBER 4, 1979, OR AT LEAST 79 DAYS AFTER THE AGREEMENT WAS
EXECUTED AND SUBMITTED FOR APPROVAL. THEREFORE, UNDER SECTION
7114(C)(3) OF THE STATUTE, THE PARTIES' AGREEMENT WENT INTO EFFECT NO
LATER THAN AUGUST 17, 1979, AND IS BINDING ON THE PARTIES, SUBJECT ONLY
TO THE REQUIREMENTS OF THE STATUTE AND ANY OTHER APPLICABLE LAW, RULE OR
REGULATION.

CONSEQUENTLY, SINCE THE ENTIRE AGREEMENT, AS NEGOTIATED AND EXECUTED
BY THE PARTIES, BECAME EFFECTIVE NO LATER THAN AUGUST 17, 1979, THE
AGENCY'S SUBSEQUENT DISAPPROVAL RAISES NO DISPUTE CONCERNING THE TERMS
OF SUCH AGREEMENT WHICH IS COGNIZABLE UNDER SECTION 7117 OF THE STATUTE.

OUR CONCLUSION THAT THE PROPRIETY OF THE AGENCY'S DISAPPROVAL OF A
NUMBER OF THE AGREEMENT PROVISIONS 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.

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,
THE APPEAL IS DISMISSED.

ISSUED, WASHINGTON, D.C., MAY 8, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY