American Federation of Government Employees, Local 1858, AFL-CIO (Union) and Army Missile Command, Redstone Arsenal, Alabama (Activity) (Authority decision, September 30, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union and Redstone Arsenal executed an agreement and submitted it for agency head review. The agency served its disapproval on the thirty-first day, after the statutory review period. The Authority held the agreement had already taken effect, so the disapproval presented no negotiability dispute for this appeal. It dismissed the appeal while explaining that unlawful terms could still be tested in other proceedings.

Decision snapshot

• Authority: 5 U.S.C. § 7114(c), 5 U.S.C. § 7117.
• Outcome: Appeal dismissed; late agency disapproval raised no negotiability issue.
• Key point: An agreement took effect when the agency missed its thirty-day review window.

Full text (FLRA public release)

[ v04 p361 ]

04:0361(47)NG

The decision of the Authority follows:

4 FLRA No. 47

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1858
(Union)

and

U.S. ARMY MISSILE COMMAND,
REDSTONE ARSENAL, ALABAMA
(Activity)

Case No. O-NG-268

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 (5 U.S.C. 7101 ET SEQ. (SUPP. II
1978)).

THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE THAT THE LOCAL
PARTIES EXECUTED A NEGOTIATED AGREEMENT ON NOVEMBER 27, 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 DECEMBER 28,
1979, APPARENTLY SERVED UPON THE UNION IN PERSON, THE AGENCY NOTIFIED
THE UNION THAT IT HAD DISAPPROVED A NUMBER OF PROVISIONS OF THAT
AGREEMENT. THUS, THE AGREEMENT WAS EXECUTED BY THE LOCAL PARTIES ON
NOVEMBER 27, 1979, AND THE AGENCY'S DISAPPROVAL WAS SERVED ON THE UNION
IN PERSON ON DECEMBER 28, 1980, OR 31 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. THE GENERAL COUNSEL AND FOR THE
RESPONDENT HAVE TIMELY MAILED

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 NOVEMBER 27, 1979, AND SUBMITTED FOR AGENCY
REVIEW AND APPROVAL. HOWEVER, THE AGENCY'S DISAPPROVAL WAS NOT SERVED
ON THE UNION UNTIL DECEMBER 28, 1979, OR 31 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
DECEMBER 28, 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 ON DECEMBER 28, 1979, THE AGENCY'S
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., SEPTEMBER 30, 1980

HAROLD D. KESSLER, ACTING EXECUTIVE DIRECTOR

CERTIFICATION OF SERVICE

COPIES OF THE AUTHORITY'S ORDER DATED SEPTEMBER 30, 1980, IN THE
INSTANT CASE HAVE THIS DAY BEEN SENT TO THE PERSONS LISTED BELOW:

MR. ROBERT L. FLETCHER

PRESIDENT, LOCAL 1858

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

BUILDING 7132

REDSTONE ARSENAL, ALABAMA 35809

MR. W. J. SCHRADER, CHIEF

LABOR AND EMPLOYEE RELATIONS DIVISION

OFFICE OF THE DEPUTY CHIEF OF STAFF

FOR PERSONNEL

DEPARTMENT OF THE ARMY

ROOM 2C655, THE PENTAGON

WASHINGTON, D.C. 20310