American Federation of Government Employees, Local 1753 (Union) and Department of the Air Force, Myrtle Beach Air Force Base, South Carolina (Agency) (Authority decision, February 19, 1982)

Final FLRA decision. The Authority resolved a negotiability appeal. 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 order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

An AFGE local appealed an Air Force command’s disapproval of provisions in a Myrtle Beach agreement. The union did not receive written notice of disapproval within 30 days after the agreement was executed. The Authority held that the agreement became effective on the 31st day, subject to applicable law, and that the late disapproval presented no negotiability dispute for it to decide. It dismissed the petition without ruling on the provisions.

Decision snapshot

• Authority: 5 U.S.C. § 7114(c), 5 U.S.C. § 7117(c), 5 U.S.C. § 7123(a), 5 U.S.C. § 7123(c).
• Outcome: The appeal was dismissed because the agency’s disapproval was not timely served.
• Key point: Late written disapproval did not create a reviewable negotiability dispute.

Full text (FLRA public release)

[ v08 p152 ]

08:0152(30)NG

The decision of the Authority follows:

8 FLRA No. 30

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1753
Union

and

DEPARTMENT OF THE AIR FORCE,
MYRTLE BEACH AIR FORCE BASE,
SOUTH CAROLINA
Agency

Case No. 0-NG-448

ORDER DISMISSING NEGOTIABILITY APPEAL

THE PETITION FOR REVIEW IN 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 (THE STATUTE).
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.

THE RECORD INDICATES THAT THE PARTIES HEREIN ON NOVEMBER 5, 1980
EXECUTED A NEGOTIATED AGREEMENT WHICH WAS SUBMITTED TO DEPARTMENT OF THE
AIR FORCE, HEADQUARTERS, TACTICAL AIR COMMAND FOR REVIEW AND APPROVAL IN
ACCORDANCE WITH SECTION 7114(C) OF THE STATUTE. /1/ THE TACTICAL AIR
COMMAND, BY LETTER DATED DECEMBER 1, 1980, ADVISED THE AGENCY HEREIN
THAT IT HAD DISAPPROVED A NUMBER OF CONTRACTUAL PROVISIONS BECAUSE OF
CLAIMED CONFLICTS WITH LEGAL AND REGULATORY REQUIREMENTS. THE AGENCY
RECEIVED THE TACTICAL AIR COMMAND LETTER ON DECEMBER 4, 1980 AND ON THAT
DATE INFORMED THE UNION BY TELEPHONE OF ITS CONTENTS. THE UNION DID NOT
RECEIVE THE LETTER OF DISAPPROVAL UNTIL IT PICKED UP A COPY ON DECEMBER
9, 1980, OR 34 DAYS AFTER THE NEGOTIATED AGREEMENT WAS EXECUTED.
THEREAFTER, THE UNION FILED THE INSTANT PETITION FOR REVIEW.

THE FACTS AND CIRCUMSTANCES HEREIN ARE NOT MATERIALLY DIFFERENT FROM
THOSE DESCRIBED IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1332
AND DEPARTMENT OF THE ARMY HEADQUARTERS, U.S. ARMY MATERIEL DEVELOPMENT
AND READINESS COMMAND, 5 FLRA NO. 80(1981). IN THE CITED CASE, AS HERE,
THE AGENCY HEAD HAD FAILED TO TIMELY SERVE NOTICE ON THE UNION IN
WRITING OF ITS DISAPPROVAL OF CONTRACT PROVISIONS WITHIN 30 DAYS OF THE
DATE THE AGREEMENT WAS EXECUTED BY THE PARTIES. THE AUTHORITY, STATING
THAT, ABSENT TIMELY SERVICE OF THE DISAPPROVAL, THE AGREEMENT BECOMES
EFFECTIVE ON THE 31ST DAY AND IS BINDING ON THE PARTIES, SUBJECT TO
APPLICABLE LAW, RULE, OR REGULATION, HELD THAT THE AGENCY'S UNTIMELY
DISAPPROVAL RAISES NO NEGOTIABILITY DISPUTE WHICH IS COGNIZABLE UNDER
SECTION 7117 OF THE STATUTE. THE INSTANT DISPUTE IS, FOR THE REASONS
FULLY SET FORTH IN THE MATERIEL DEVELOPMENT AND READINESS COMMAND
DECISION, ALSO INAPPROPRIATE FOR RESOLUTION UNDER SECTION 7117(C).

ACCORDINGLY, IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE,
AND IT HEREBY IS, DISMISSED. FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., FEBRUARY 19, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR

--------------- FOOTNOTES: ---------------

/1/ SECTION 7114(C) PROVIDES, IN PERTINENT PART:

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

APPROVAL BY THE HEAD OF THE 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.