New York State Nurses Association (Union) and Veterans Administration, Bronx Medical Center (Activity) (Authority decision, June 23, 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 Bronx veterans medical center and nurses union executed an agreement on February 9, 1981. The agency issued its written disapproval 77 days later, after the statutory thirty day review period. The Authority held that the agreement had taken effect subject to law and dismissed the negotiability appeal because the late disapproval created no reviewable dispute.

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: Written agency head disapproval had to be served within thirty days.

Full text (FLRA public release)

[ v06 p151 ]

06:0151(30)NG

The decision of the Authority follows:

6 FLRA No. 30

NEW YORK STATE NURSES
ASSOCIATION
(Union)

and

VETERANS ADMINISTRATION, BRONX MEDICAL CENTER
(Activity)

Case No. O-NG-486

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 (NEW YORK STATE NURSES ASSOCIATION AND VETERANS ADMINISTRATION,
BRONX MEDICAL CENTER) EXECUTED A NEGOTIATED AGREEMENT ON FEBRUARY 9,
1981, AND SUBMITTED IT TO THE VETERANS ADMINISTRATION FOR REVIEW AND
APPROVAL IN ACCORDANCE WITH SECTION 7114(C) OF THE STATUTE. ON APRIL
27, 1981, THE VETERANS ADMINISTRATION ISSUED A LETTER TO THE UNION IN
WHICH SPECIFIC SECTIONS OF THE NEGOTIATED AGREEMENT WERE DISAPPROVED.
THIS WRITTEN NOTICE TO THE UNION WAS THUS DATED SEVENTY-SEVEN DAYS AFTER
THE COLLECTIVE BARGAINING AGREEMENT WAS SIGNED, ON FEBRUARY 9, 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 PAPERS 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 FEBRUARY 9, 1981, AND SUBMITTED FOR AGENCY
DISAPPROVAL UNTIL APRIL 27, 1981, OR SEVENTY-SEVEN 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 MARCH 12, 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 MARCH 12, 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 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,
THE APPEAL IS DISMISSED.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., JUNE 23, 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)