NFFE Local 29 and Kansas City Corps of Engineers (Authority decision, November 12, 1981)

Final FLRA decision. This is a final Authority order. 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

The Kansas City Corps of Engineers did not finish reviewing a local agreement within the statutory thirty days, so the agreement took effect. The agency later called several terms unenforceable, and NFFE Local 29 sought negotiability review. The Authority held that the effective agreement did not present a dispute reviewable in this petition process and dismissed the appeal. It said any unlawful terms could still be challenged in other proceedings.

Decision snapshot

• Authority: 5 U.S.C. § 7114(c), 5 U.S.C. § 7117.
• Outcome: Negotiability petition dismissed without a merits ruling.
• Key point: A late agency-head review did not reopen the agreement for a negotiability appeal.

Full text (FLRA public release)

[ v07 p186 ]

07:0186(27)NG

The decision of the Authority follows:

7 FLRA No. 27

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 29
(Union)

and

KANSAS CITY DISTRICT CORPS
OF ENGINEERS, KANSAS CITY,
MISSOURI
(Activity)

Case No. O-NG-555

ORDER DISMISSING PETITION FOR REVIEW

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.) ON A PETITION FOR REVIEW FILED BY THE UNION. FOR THE REASONS
INDICATED BELOW, THE UNION'S APPEAL MUST BE DISMISSED.

THE RECORD IN THIS CASE INDICATES THAT ON JULY 1, 1981, THE PARTIES
SUBMITTED A LOCALLY EXECUTED COLLECTIVE BARGAINING AGREEMENT TO THE
AGENCY FOR REVIEW AND APPROVAL PURSUANT TO SECTION 7114(C) OF THE
STATUTE. BY LETTER SERVED ON THE UNION ON AUGUST 31, 1981, THE AGENCY
NOTIFIED THE UNION THAT ALTHOUGH IT HAD NOT COMPLETED ITS SECTION
7114(C) REVIEW WITHIN THE STATUTORY 30-DAY TIME LIMIT, WHICH THEREBY
RENDERED THE CONTRACT EFFECTIVE ON THE 31ST DAY AFTER EXECUTION, IT WAS
DECLARING UNENFORCEABLE CERTAIN PROVISIONS OF THE AGREEMENT AS THEY WERE
CONTRARY TO LAW AND APPROPRIATE REGULATION. THE UNION FILED THE INSTANT
PETITION ON SEPTEMBER 15, 1981, REQUESTING A REVIEW OF THE PROVISIONS
DECLARED UNENFORCEABLE.

THE PARTIES AGREE THAT AS THE AGREEMENT WAS NOT APPROVED OR
DISAPPROVED WITHIN 30 DAYS AFTER ITS EXECUTION, IT BECAME 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.

CONSEQUENTLY, SINCE THE ENTIRE AGREEMENT AS NEGOTIATED AND EXECUTED
BY THE PARTIES BECAME EFFECTIVE AND BINDING ON JULY 31, 1981, THE
PETITION FOR REVIEW RAISES NO DISPUTE CONCERNING THE TERMS OF SUCH
AGREEMENT WHICH IS COGNIZABLE UNDER SECTION 7117 OF THE STATUTE.

HOWEVER, OUR CONCLUSION THAT THE INSTANT PETITION 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. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1858 AND U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, 4
FLRA NO. 47(1980).

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., NOVEMBER 12, 1981.

JAMES J. SHEPARD, EXECUTIVE DIRECTOR