Department of Transportation, Federal Aviation Administration and American Federation of State, County, and Municipal Employees, Council 26, WA-CA-01-0386, December 11, 2003, 59 FLRA No. 82.

FLRA dismissed a ULP complaint alleging the agency violated § 7114(b)(5) when it refused to execute an agreement. It found that since the union acquiesced in a requirement that any agreement be subject to OMB approval, OMB's disapproval of the agreement "meant that the agreement was not final and absent such finality, the Respondent was under no obligation to execute the agreement." In light of this finding, FLRA found it unnecessary to pass on the issue of whether the union had waived its statutory right for the agency to have authorized representatives at the bargaining table.

When the agency refused to execute an agreement that had been reached by the parties because the Office of Management and Budget (OMB) had not approved it, the union filed a ULP charge alleging the agency violated § 7114(b)(5) which requires the parties, when reaching an agreement, to execute the agreement "and take such steps as are necessary to implement such agreement." The matter went to a hearing before an ALJ where, among other things, witnesses on behalf of the union testified that there had been no mention of the need for OMB approval during the negotiation of ground rules or during the initial negotiations. This was contradicted by agency witnesses who testified, among other things, that although the union's chief negotiator initially objected to such a review and approval process, he continued to bargain over the terms of the collective bargaining agreement.

The ALJ credited the testimony of the agency witnesses and found that the agency had consistently taken the position that any agreement reached wouldn't be final until reviewed and approved by OMB. By bargaining notwithstanding the agency's position, the ALJ found that the union had "acquiesced" in the requirement for OMB approval as a precondition for the finality of the agreement. Given that OMB had disapproved the agreement, the agreement wasn't final and therefore the agency had no obligation to implement the agreement. The ALJ also found that the union had clearly and unmistakably waived its right under § 7114(b)(2) to have fully authorized representatives of the agency at the bargaining table. The Judge accordingly recommended that the complaint be dismissed.

The Authority agreed and dismissed the complaint. It determined that the evidence of record supported the ALJ's finding that the union acquiesced in the requirement for OMB approval.

The Judge credited the testimony of Respondent's witnesses that the Union had been notified that the Respondent intended to submit any agreement reached between the parties to OMB for approval and found that the Respondent had clearly made that position known before and during its negotiations with the Union. She further found that the Union, by continuing to negotiate with the Respondent in the face of that position, had acquiesced to that precondition for finality of agreement. We agree with the Judge that, in light of these findings, OMB's ultimate disapproval of the agreement meant that the agreement was not final and that absent such finality, the Respondent was under no obligation to execute the agreement. See IRS, Philadelphia Dist., 22 FLRA at 257-58 (management notified union that alternative work schedules (AWS) agreement must be part of entire agreement, so failure to sign separate AWS agreement not an unfair labor practice). In light of this analysis, we do not address the parties' contentions that there was no final agreement because the Respondent's representatives were not authorized to bargain.

In its exceptions to the ALJ's decision, the union contended that it had refused to agree to OMB review and approval. Apparently FLRA is saying that oral or written agreement isn't necessary. The union, by its behavior, had tacitly assented to the agency's precondition. (Compare the situation in this case with the establishment, and enforcement, of past practices.) FLRA seems to be implying that, from a legal standpoint, the union, before engaging in bargaining, should have filed its ULPs and claimed that the statute provides only for agency head, not OMB, review and approval. Had this been done, presumably FLRA would have found a violation of the statute and, as a remedy, directed the agency to bargain. But perhaps the union was eager to enter into negotiations, was willing to take its chances with OMB review, and didn't want to put up with the delay associated with prosecuting and deciding ULPs. (In this case, e.g., the union was told of OMB's disapproval in May 2001 and FLRA's decision disposing of the ULPs was issued December 11, 2003.)