[ v20 p537 ]
20:0537(65)CA
The decision of the Authority follows:
20 FLRA No. 65
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
COLONIAL NATIONAL HISTORICAL PARK
YORKTOWN, VIRGINIA
Respondents
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-68
Charging Party
Case No. 4-CA-30537
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:
The complaint alleges that Respondent Department of the Interior
(Agency) violated section 7116(a)(1), (5) and (8) of the Federal Service
Labor-Management Relations Statute (the Statute) /1/ by its actions in
disapproving under section 7114(c) of the Statute /2/ specific
provisions of a collective bargaining agreement more than 30 days after
the agreement had been executed by the Charging Party, National
Association of Government Employees, Local R4-68 (the Union) and
Respondent Colonial National Historical Park (the Activity), and that
both the Agency and the Activity violated the Statute by refusing
thereafter to implement any part of the agreement. Respondents deny
that they violated the Statute in any respect, and note that the Union
was notified in writing of the disapproval of the agreement within 30
days of its execution. The General Counsel argues that a written
communication handed to the Union within the 30 day period after
execution of the agreement was not adequate notice to the Union since it
did not specify the sections of the agreement disapproved by the Agency,
nor did it give reasons why the specific sections were not within the
duty to bargain.
The following facts were stipulated by the parties to constitute the
entire basis for the charge and complaint herein:
At all material times herein, the Union has been the exclusive
representative of a unit of all nonsupervisory blue-collar seasonal and
permanent employees of the Colonial National Historical Park, Yorktown,
Virginia. There has been in existence a collective bargaining agreement
covering these employees since 1979, which remains in effect until a new
agreement becomes effective.
Following negotiations with the Union for a new agreement, a labor
relations specialist, Bonner, employed by the National Park Service,
executed a new agreement for and on behalf of the Colonial National
Historical Park on April 8, 1983, covering the employees in the unit
noted above. The Union had already executed the agreement. Thereafter,
Bonner submitted the agreement to the Department of the Interior for
approval pursuant to section 7114(c) of the Statute.
On May 6, 1983, the Agency's Deputy Director of Personnel, for and on
behalf of the Director of Personnel for the Department of the Interior,
issued a letter to the Superintendent of the Colonial National
Historical Park informing him that the new agreement negotiated with the
Union was not approved, setting forth the provisions found contrary to
law and the reasons therefor. A copy of this letter was also sent to
the headquarters office of the National Park Service.
On that same date, May 6, the National Park Service called John H.
King, the Administrative Officer of the Colonial National Historical
Park, and informed him of the action of the Department of the Interior
concerning the new collective bargaining agreement with the Union.
Thereafter, pursuant to instructions, King prepared and signed a letter
informing the Union of the action of the Agency head in disapproving the
new agreement, but neither specifying the provisions disapproved nor any
reason for such action. This letter was hand-delivered to Union Vice
President Firth on that same date, May 6. On May 18, Union President
Hunt received a copy of the memorandum from the Agency's Director of
Personnel to the Park Superintendent, dated May 6, 1983, wherein those
provisions asserted to be outside the duty to bargain, and the reasons
therefor, were specified.
On May 11 and June 20, 1983, the Union sent letters to the Activity,
asserting that the Agency had not acted and notified the Union within
the 30 day period following the execution of the new negotiated
agreement; that pursuant to the provisions of section 7114(c) of the
Statute the agreement went into effect automatically; and that copies
of the agreement should be implemented by distribution to the employees
in the unit. On July 13, Bonner replied to the Union on behalf of the
Respondent, noting that the new agreement had not been executed on
behalf of Respondent until April 8, and that the Union had been informed
of the Agency head's disapproval of the agreement by hand-delivered
letter on May 6, and therefore the agreement would not be distributed to
the employees. It is stipulated that, at no time since July 13, 1983,
has any part of the new negotiated agreement been implemented by the
Activity.
The Authority has determined previously that a written notification
of a disapproval from an agency's reviewing official to an activity
pursuant to section 7114(c) of the Statute was, when served on the union
involved, an allegation of nonnegotiability under section 2424.3 of the
Authority's Rules and Regulations. See American Federation of
Government Employees, AFL-CIO, Local 2 and Department of the Army, U.S.
Army Materiel Development and Readiness Command, Harry Diamond
Laboratories, 11 FLRA 359(1983). However, neither the Statute nor the
Authority's Rules and Regulations specifies any form or method for
accomplishing service of an agency head's disapproval of a negotiated
agreement pursuant to section 7114(c) of the Statute, except as provided
in section 2429.3. /3/ It has also been held previously by the
Authority that where an agency head fails to notify the union involved
of his disapproval of a negotiated agreement within 30 days after
execution thereof, the entire agreement as negotiated becomes effective
and binding on the 31st day after execution. See American Federation of
Government Employees, AFL-CIO, Local 1625 and Fleet Combat Training
Center, Atlantic, U.S. Department of the Navy, 14 FLRA 162(1984). /4/
In the present case, it is clear from the stipulated facts that King,
serving as the agent for the Agency head herein, hand delivered to the
Union's Vice President a letter clearly indicating that the Agency head
had disapproved the recently executed negotiated agreement. It is also
clear that such delivery was accomplished on May 6, 1983, less than 30
days after the agreement had been executed by both the Activity and the
Union. In these circumstances, the Authority finds that the Agency
properly and timely acted pursuant to section 7114(c) of the Statute,
and that the complaint should be dismissed as to this allegation.
Contrary to the argument of the General Counsel herein, there is no
requirement in the Statute or the Authority's implementing Rules and
Regulations requiring that such a disapproval, which, as noted
previously, has been held to constitute a declaration of
nonnegotiability, must be made with any particular degree of
specificity. Thus, section 7117(c)(1) states:
Except in any case to which subsection (b) of this section
applies, if an agency involved in collective bargaining with an
exclusive representative alleges that the duty to bargain in good
faith does not extend to any matter, the exclusive representative
may appeal the allegation to the Authority in accordance with the
provisions of this subsection.
Section 2424.4 of the Authority's Rules and Regulations provides that an
exclusive representative's petition for review of an agency's allegation
that the duty to bargain does not extend to the matter at issue must
contain, inter alia, "the agency's allegation in writing that the
matter, as proposed, is not within the duty to bargain in good faith . .
. (.)" The only requirement that an agency support its allegation of
nonnegotiability with specificity and rationale occurs after the agency
has been served with a petition for review, at which time the agency has
30 days within which to file a statement of position, specifying its
reasons for the allegation. /5/
Further, the General Counsel's allegation of a violation of the
Statute based on the Activity's refusal to implement other parts of the
contract is similarly without merit. Thus, by the plain language of
section 7114(c) of the Statute, "the agreement," not a portion thereof,
must be approved by the agency head. By operation of section 7114(c)
the agreement goes into effect upon the approval of the agency head or
upon the expiration of the 30-day period if the agency head does not
approve or disapprove. In the instant case, it is clear that the
agreement did not go into effect under the provisions of section
7114(c). In fact, as noted above, the Agency head properly and timely
notified the Union of his disapproval of the agreement. Accordingly,
the agreement at issue here is not an enforceable agreement, and the
failure of the Respondent Activity to implement any portion of the local
agreement not specifically disapproved by the Agency head in the absence
of the parties' prior agreement to do so does not constitute a violation
of the Activity's duty under the Statute to bargain in good faith. /6/
Rather, the Activity's obligation under the Statute to negotiate in good
faith remains, as it has always been, to return to the bargaining table
with a sincere resolve to reach agreement with the Union. /7/ In these
circumstances, the Authority concludes that the Activity did not violate
its duty to bargain in good faith by refusing to implement those
portions of the negotiated agreement which were not disapproved by the
Agency head pursuant to section 7114(c) of the Statute. /8/
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-30537 be, and it
hereby is, dismissed.
Issued, Washington, D.C. October 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1), (5) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ Section 7114(c) of the Statute provides:
Sec. 7114. Representation rights and duties
* * * *
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
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.
(4) A local agreement subject to a national or other
controlling agreement at a higher level shall be approved under
the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
/3/ Section 2429.27(b) provides in pertinent part:
Service of any document or paper under this subchapter, by any
party, including documents and papers served by one party on
another, shall be made by certified mail or in person. . . .
/4/ However, the validity of any provisions of such a negotiated
agreement may be questioned in other appropriate proceedings, such as
unfair labor practice or arbitration proceedings, and if found contrary
to the Statute or other applicable law, rule, or regulation, would be
deemed void and unenforceable. 14 FLRA 162, 163.1.
/5/ See section 2424.6 of the Authority's Rules and Regulations.
/6/ Of course, the parties may agree to implement all provisions of
their local agreement not specifically disapproved by the Agency head.
/7/ Cf. U.S. Department of Commerce, Bureau of the Census, 17 FLRA
No. 97 (1985), where the Authority found that the Respondent Activity
was obligated to renegotiate a tentative agreement which the Union
membership had failed to ratify. In that case, by agreement of the
parties, the ratification of any agreement reached by the parties was a
condition precedent to effectuation of the agreement. When the Union
membership failed to ratify the agreement, the parties were obligated to
return to the bargaining table to negotiate until an acceptable
agreement was reached. This obligation to bargain, in the Bureau of the
Census case, was limited by the agreement of the parties that no new
issue could be introduced into the bargaining beyond 12 hours after the
commencement of negotiations. Similarly, in the instant case, the
failure of the Agency head to approve the agreement constituted a
failure of a condition precedent, and the parties were effectively
returned to the bargaining table to negotiate until agreement could be
reached and the Agency head approved such agreement. This obligation to
bargain a new agreement is limited only by any "ground-rules" or
procedures agreed upon by the parties under which negotiations were to
be conducted.
/8/ The Union filed a separate petition for review of the Agency's
disapproval of 12 provisions of the local agreement between the Activity
and the Union, pursuant to the provisions of Part 2424 of the
Authority's Rules and Regulations, Expedited Review of Negotiability
Issues, in Case No. 0-NG-851. Although the Union elected to process the
instant case first, such issues are not raised herein, nor is resolution
thereof necessary for disposition of the issues raised by this
complaint.