National Federation of Federal Employees, Local 1332 (Union) and Department of the Army, Headquarters, Army Materiel Development and Readiness Command (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

An Army command and union signed an agreement on January 14, 1981. The agency conveyed its disapproval by telephone within thirty days but did not serve written notice until March 11. The Authority held that the agreement had taken effect because the disapproval was not properly served in time. It dismissed the negotiability appeal because the late disapproval presented no issue for that proceeding.

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: Agency head disapproval required timely written service on the union.

Full text (FLRA public release)

[ v05 p599 ]

05:0599(80)NG

The decision of the Authority follows:

5 FLRA No. 80

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1332
(Union)

and

DEPARTMENT OF THE ARMY
HEADQUARTERS, U.S. ARMY
MATERIEL DEVELOPMENT AND
READINESS COMMAND
(Activity)

Case No. 0-NG-455

ORDER DISMISSING 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 (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE THAT THE LOCAL
PARTIES (NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1332 AND
DEPARTMENT OF THE ARMY, HEADQUARTERS, U.S. ARMY MATERIEL DEVELOPMENT AND
READINESS COMMAND) EXECUTED A NEGOTIATED AGREEMENT ON JANUARY 14, 1981,
AND SUBMITTED IT TO THE DEPARTMENT OF THE ARMY FOR REVIEW AND APPROVAL
IN ACCORDANCE WITH SECTION 7114(C) OF THE STATUTE; AND THAT BY A
TELEPHONE CALL ON FEBRUARY 12, 1981, THE MATERIEL DEVELOPMENT AND
READINESS COMMAND NOTIFIED LOCAL 1332 THAT THE DEPARTMENT OF THE ARMY
HAD ISSUED A LETTER DISAPPROVING A NUMBER OF PROVISIONS OF THE
COLLECTIVE BARGAINING AGREEMENT AS BEING INCONSISTENT WITH APPLICABLE
LAW. ON MARCH 11, 1981, THE MATERIEL READINESS AND DEVELOPMENT COMMAND
ISSUED A LETTER TO THE UNION IN WHICH SPECIFIC SECTIONS OF THE
NEGOTIATED AGREEMENT THAT WERE NOT ACCEPTABLE TO THE ARMY WERE
IDENTIFIED. THIS WRITTEN NOTICE TO THE UNION WAS THUS DATED FIFTY-SIX
DAYS AFTER THE COLLECTIVE BARGAINING AGREEMENT WAS SIGNED, ON JANUARY
14, 1981.

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.

THE AUTHORITY HAS PREVIOUSLY ESTABLISHED 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 PAPER 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 JANUARY 14, 1981, AND SUBMITTED FOR AGENCY
REVIEW AND APPROVAL. ALTHOUGH A TELEPHONE CALL WAS MADE TO THE UNION BY
THE ACTIVITY ON FEBRUARY 12, 1981, THE UNION WAS NOT SERVED WITH THE
AGENCY HEAD'S DISAPPROVAL UNTIL MARCH 11, 1981, OR FIFTY-SIX 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 ON FEBRUARY 14, 1981, 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 FEBRUARY 14, 1981, 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
PROCEEDING) 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.

FOR THE AUTHORITY.

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

JAMES J. SHEPARD, EXECUTIVE DIRECTOR

--------------- FOOTNOTES$ ---------------

/1/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1862 AND
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH SERVICE,
INDIAN HEALTH SERVICE, PHOENIX, ARIZONA, 3 FLRA NO. 25(1980). ACCORD,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1858 AND
U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, 4 FLRA NO.
47(1980), (REQUEST FOR RECONSIDERATION DENIED MARCH 5, 1981).