Washington Area Metal Trades Council, AFL-CIO (Union) and Naval Research Laboratory, Washington, DC (Activity) (Authority decision, May 14, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A naval laboratory and union executed an agreement by February 13, 1980. The agency served its disapproval on March 25, more than thirty days later. The Authority held that the agreement had taken effect subject to applicable law, and the late disapproval raised no issue cognizable in this negotiability appeal. It dismissed the appeal without deciding whether particular provisions were lawful.

Decision snapshot

• Authority: 5 U.S.C. § 7114(c)(3), 5 U.S.C. § 7117.
• Outcome: Negotiability appeal dismissed; agreement took effect subject to applicable law.
• Key point: Internal agency disapproval did not replace timely service on the union.

Full text (FLRA public release)

[ v05 p596 ]

05:0596(79)NG

The decision of the Authority follows:

5 FLRA No. 79

WASHINGTON AREA METAL
TRADES COUNCIL, AFL-CIO
(Union)

and

NAVAL RESEARCH LABORATORY,
WASHINGTON, D.C.
(Activity)

Case No. 0-NG-292

ORDER DISMISSING NEGOTIABILITY APPEAL

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT STATUTE
(5 U.S.C. 7101 ET SEQ. (SUPP. III 1979)).

THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE THAT THE LOCAL
PARTIES EXECUTED A NEGOTIATED AGREEMENT ON OR BEFORE FEBRUARY 13, 1980,
AND SUBMITTED IT TO THE AGENCY FOR REVIEW AND APPROVAL IN ACCORDANCE
WITH SECTION 7114(C) OF THE STATUTE; AND THAT BY LETTER SERVED UPON THE
UNION ON MARCH 25, 1980, THE AGENCY NOTIFIED THE UNION THAT IT HAD
DISAPPROVED A NUMBER OF PROVISIONS OF THAT AGREEMENT. THUS, THE
AGENCY'S DISAPPROVAL WAS SERVED ON THE UNION MORE THAN 30 DAYS AFTER THE
DATE 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
FROM 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.

IN THE STATEMENT OF POSITION, THE AGENCY ASSERTS, AMONG OTHER THINGS,
THAT IT DID DISAPPROVE CERTAIN PROVISIONS OF THE CONTRACT ON MARCH 3,
1980 AND COMMUNICATED THE DISAPPROVAL TO NAVY PERSONNEL IN AN INTERNAL
MEMO. THE AGENCY CONTENDS THAT 5 U.S.C. 7114(C) SPEAKS ONLY TO THE
ACTION OF THE AGENCY HEAD, NOT TO THE NOTIFICATION OF THE UNION AND THAT
FAILURE TO NOTIFY THE UNION DOES NOT INVALIDATE THE AGENCY HEAD'S
ACTION.

THE AUTHORITY HAS PREVIOUSLY ESTABLISHED, HOWEVER, THAT AN AGENCY
HEAD'S DISAPPROVAL OF A LOCALLY 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. /1/ IN
ADDITION, SECTION 2429.27(B) OF THE AUTHORITY'S RULES AND REGULATIONS
PROVIDES THAT SERVICE OF ANY DOCUMENT OR PAPER BY ANY PARTY, INCLUDING
DOCUMENTS AND PAPERS SERVED BY ONE PARTY ON ANOTHER, SHALL BE MADE BY
CERTIFIED MAIL OR IN PERSON. 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 PRESCRIBED.
ABSENT SUCH TIMELY SERVICE OF THE DISAPPROVAL, THE AGREEMENT BECOMES
EFFECTIVE ON THE 31ST DAY AND IS BINDING ON THE PARTIES THEREAFTER
SUBJECT, OF COURSE, TO THE PROVISIONS OF THE STATUTE AND ANY OTHER
APPLICABLE LAW, RULE, OR REGULATION.

IN THIS CASE, AS PREVIOUSLY INDICATED, THE PARTIES' NEGOTIATED
AGREEMENT WAS EXECUTED ON OR BEFORE FEBRUARY 13, 1980, AND SUBMITTED FOR
AGENCY REVIEW AND APPROVAL. HOWEVER, THE AGENCY'S DISAPPROVAL WAS NOT
SERVED ON THE UNION UNTIL MARCH 25, 1980, MORE THAN 30 DAYS FROM THE
DATE 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 MARCH 16, 1980, 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 ON OR BEFORE MARCH 16, 1980, 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,

IT IS HEREBY ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS,
DISMISSED.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., MAY 14, 1981

JAMES J. SHEPARD, EXECUTIVE DIRECTOR