Indian Wells Valley Metal Trades Council, Ridgecrest, California (Union) and Department of the Navy, Naval Weapons Center (Activity) (Authority decision, July 30, 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 Navy activity and union executed an agreement in October 1980. The agency head’s disapproval was not served on the union until about 42 days later, after the thirty day review period. The Authority held that the agreement had taken effect on the thirty first day and dismissed the negotiability appeal because the late disapproval created no dispute reviewable in that proceeding. It said unlawful provisions could still be challenged through other appropriate proceedings.

Decision snapshot

• Authority: 5 U.S.C. § 7114(c)(3), 5 U.S.C. § 7117.
• Outcome: Negotiability appeal dismissed; agreement took effect subject to law.
• Key point: An agency head must serve written disapproval within thirty days to prevent an agreement from taking effect.

Full text (FLRA public release)

[ v06 p351 ]

06:0351(63)NG

The decision of the Authority follows:

6 FLRA No. 63

INDIAN WELLS VALLEY METAL TRADES
COUNCIL, RIDGECREST, CALIFORNIA
(Union)

and

DEPARTMENT OF THE NAVY, NAVAL
WEAPONS CENTER
(Activity)

Case No. O-NG-432

ORDER DISMISSING NEGOTIABILITY APPEAL

THIS CASE IS BEFORE 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. III 1979)), ON A PETITION FOR REVIEW OF A NEGOTIABILITY
ISSUE FILED BY THE UNION.

THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS, THE
LOCAL PARTIES EXECUTED AN AGREEMENT ON OR ABOUT OCTOBER 9, 1980, AND
SUBMITTED IT TO THE SECRETARY OF THE NAVY FOR REVIEW AND APPROVAL IN
ACCORDANCE WITH SECTION 7114(C) OF THE STATUTE. SUBSEQUENTLY, BY
MEMORANDUM OF NOVEMBER 7, 1980, ADDRESSED TO THE COMMANDING OFFICER OF
THE ACTIVITY, THE SECRETARY OF THE NAVY, AMONG OTHER THINGS, DISAPPROVED
A PROVISION IN THE AGREEMENT WHICH IS THE SUBJECT OF THE UNION'S INSTANT
APPEAL. IT APPEARS FROM THE DOCUMENTS IN THE RECORD BEFORE THE
AUTHORITY THAT A COPY OF THE SECRETARY OF THE NAVY'S MEMORANDUM WAS NOT
SERVED ON THE UNION UNTIL ON OR ABOUT NOVEMBER 20, 1980. 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)(13) OF THE STATUTE, AN AGREEMENT WHICH
HAS NOT BEEN APPROVED OR DISAPPROVED BY THE AGENCY INVOLVED WITHIN 30
DAYS AFTER 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.

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 IN WRITTEN FORM AND SERVED ON THE UNION INVOLVED
WITHIN 30 DAYS FROM THE DATE THE AGREEMENT IS EXECUTED BY THE PARTIES;
AND, 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. /1/

IN THIS CASE, AS PREVIOUSLY INDICATED, THE PARTIES' NEGOTIATED
AGREEMENT WAS EXECUTED AND SUBMITTED FOR AGENCY REVIEW AND APPROVAL ON
OR ABOUT OCTOBER 9, 1980. HOWEVER, THE UNION WAS NOT SERVED WITH A COPY
OF THE AGENCY'S DISAPPROVAL UNTIL ON OR ABOUT NOVEMBER 20, 1980, OR
ABOUT 42 DAYS AFTER THE AGREEMENT WAS EXECUTED. THEREFORE, UNDER
SECTION 7114(C)(3) OF THE STATUTE, THE PARTIES' AGREEMENT WENT INTO
EFFECT ON OR ABOUT NOVEMBER 9, 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 ABOUT NOVEMBER 9, 1980, 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 AGENCY'S DISAPPROVAL OF THE AGREEMENT
PROVISION HERE INVOLVED 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 ULTIMATELY 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., JULY 30, 1981

JAMES J. SHEPARD, EXECUTIVE DIRECTOR

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

/1/ NEW YORK STATE NURSES ASSOCIATION AND VETERANS ADMINISTRATION,
BRONX MEDICAL CENTER, 6 FLRA NO. 30(1981).