[ v41 p1004 ]
41:1004(79)NG
The decision of the Authority follows:
41 FLRA No. 79
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in American Federation of Government Employees, National Mint Council and U.S. Department of the Treasury, Bureau of the Mint, San Francisco, California, 41 FLRA 220 (1991). The Agency is seeking reconsideration of the Authority's order dismissing the Union's petition for review. No opposition to the motion was filed by the Union. Because the Agency fails to establish that extraordinary circumstances exist that would warrant reconsideration of our decision, we will deny the motion.
II. The Decision in 41 FLRA 220
In 41 FLRA 220, the Union filed a petition for review concerning a provision of a negotiated agreement that had been disapproved by the Agency head under section 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute). The record indicated that the Agency had advised the Union of the disapproval by means of an electronic facsimile transmission (FAX).
A dispute subsequently arose between the parties as to the method of service of the disapproval and, specifically, whether service had been effected by means of personal delivery. The Union asserted that it was served with the disapproval by FAX on May 2, 1990, while the Agency asserted that a copy of the facsimile was served on the Union by personal delivery on May 2, 1990. In light of this dispute, the Authority issued an Order to Show Cause directing the parties to provide evidence of the date of service of the disapproval.
In its Order, the Authority noted that section 7114(c)(2) of the Statute provides that an agency head shall approve a collective bargaining agreement "within 30 days from the date the agreement is executed" if the agreement complies with applicable law and regulation. The Authority also noted that any disapproval by an agency head must be served on an exclusive representative within 30 days after the execution of the agreement. The parties were advised that under section 2429.27(d) of the Authority's Rules and Regulations, the date of service is the date the disapproval is deposited in the U.S. mail or is delivered in person. Therefore, in this case, the Agency head's disapproval had to be served on the Union by deposit in the U.S. mail or by personal delivery by May 2, 1990. The parties were also advised that proof of either a postmarked mail receipt or return post office receipt, or evidence of other written receipt executed by a party or person served with the Agency head's disapproval could be submitted to establish the date of service of the disapproval in accordance with section 2429.27(b) of the Authority's Rules and Regulations.
Both parties responded to the Authority's Order and provided supporting declarations from various employees. The Union requested that the petition for review be dismissed on the basis that the Agency head's disapproval was not served on the Union either by certified mail or in person as required under section 2429.27(b) of the Authority's Rules and Regulations. The Agency argued that the disapproval was hand-delivered to the Union on May 2, 1990. The Agency also argued that the Statute does not specify any particular form or method for accomplishing service of an agency head disapproval, and that both parties agreed that the Union received the disapproval on May 2, 1990.
Based on the responses provided by the parties, the Authority concluded in 41 FLRA 220 that neither party had presented evidence that the Agency head's disapproval was served on the Union either by certified mail or in person, as required by section 2429.27(b), within 30 days after the agreement was executed.(1) The Authority also noted its recently issued decision in American Federation of Government Employees, National Veterans Affairs Council and U.S. Department of Veterans Affairs, Veterans Health Services and Research Administration, Washington, D.C., 39 FLRA 1055 (1991) (Veterans Council), reconsideration denied, 40 FLRA 195 (1991), finding, in part, that transmission of an agency head disapproval by FAX did not satisfy the requirement of service by certified mail or in person. Consequently, in the absence of a properly served disapproval, the Authority found that the entire agreement became effective and binding on May 4, 1990.(2)
The Authority also noted, consistent with section 7114(c)(3) of the Statute, that provisions in the agreement that were contrary to the Statute or other applicable law, rule or regulation could not be enforced. Instead, any questions concerning the validity of those provisions could be raised in other appropriate proceedings. Having found that the agreement became effective and binding, however, the Authority dismissed the petition for review, finding that the petition did not raise a dispute that was cognizable under section 7117 of the Statute.
III. Motion for Reconsideration
The Agency argues that the Authority's decision to dismiss the Union's petition for review is a departure from Authority precedent. The Agency contends, in this regard, that the Union did not claim that it was harmed by a failure of the Agency to comply with procedural requirements pertaining to service of the disapproval and, further, that there is no basis on which to conclude that the Union, in fact, suffered any harm.
In terms of Authority precedent, the Agency argues that the Authority previously has rejected claims that exceptions to arbitration awards should be dismissed because they were served on the other party by regular mail, rather than certified mail, or in person. The Agency states that in U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2144, 39 FLRA 269 (1991); U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170 (1990); and U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 35 FLRA 316 (1990), the Authority specifically noted the absence of any contention or basis on which to conclude that the party served by regular mail, or served without accompanying attachments, was harmed.
The Agency maintains that although there is a factual dispute in this case regarding the manner in which the Agency head disapproval was received, there is no dispute that the disapproval was received by the Union on May 2, 1990, and that such receipt was within the 30-day period set forth in section 7114(c) of the Statute. The Agency further notes that the Union treated the disapproval as effective as evidenced by the Union's timely filing of its petition for review in accordance with section 2424.7(a) of the Authority's Rules and Regulations.(3) The Agency asserts that as the Union has not claimed that it was harmed by the manner of service of the disapproval, and no other basis exists for so finding, the petition for review should be reinstated.
Finally, the Agency contends that the Authority's reliance on Veterans Council is misplaced. The Agency argues that in Veterans Council the union did not acknowledge receipt of the agency head disapproval within the 30-day period set forth in section 7114(c) of the Statute. By contrast, the Agency argues that the Union here proceeded as if service of the disapproval was effective and filed its petition for review within 15 days of receipt of the disapproval.
IV. Analysis and Conclusions
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has failed to establish extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of the decision in 41 FLRA 220.
The Agency's claim that the Authority's decision to dismiss the Union's petition for review departs from Authority precedent cannot be sustained. The Authority consistently has required that an agency head's disapproval be served on the exclusive representative in accordance with the Authority's Rules and Regulations. In addition to the cases cited in 41 FLRA 220, see, American Federation of Government Employees, Local 2354 and U.S. Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 40 FLRA 1232 (1991) (neither agency's statement that union received computer message containing disapproval nor agency's other evidence of union's receipt establishes that the disapproval was served on the union either by certified mail or in person as required by the Authority's regulations); Antilles Consolidated Education Association and Department of Defense, Department of the Navy, Antilles Consolidated School System (ACSS), 28 FLRA 118 (1987) (notice of disapproval must be in written form and either mailed by certified mail or delivered in person to union's designated representative); American Federation of Government Employees, Local 2182, AFL-CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA 600 (1987) ("service" and not "receipt" of disapproval is significant event that measures timeliness of disapproval); and American Federation of Government Employees, Local 1753 and Department of the Air Force, Myrtle Beach Air Force Base, South Carolina, 8 FLRA 152 (1982) (telephonic disapproval within 30-day period did not constitute timely service of disapproval on union).
The Agency's assertion that the Authority misapplied Veterans Council to this case, to the extent that the factual situation there differs from the factual situation present here, is misplaced. Both cases involved the transmittal of an agency head's disapproval by FAX, and in both cases the Authority found that the agency failed to properly serve the union by certified mail or in person as is required by section 2429.27(b) of the Authority's Rules and Regulations. Veterans Council involved an additional deficiency in that the disapproval was not timely served within the 30-day period set forth in section 7114(c)(2) of the Statute.
The Agency's reliance on Authority decisions involving service of exceptions to arbitration awards is also misplaced. In those cases, there was no question that the exceptions were properly filed with the Authority under part 2425 of the Authority's Rules and Regulations. In fact, in determining whether exceptions are properly filed with the Authority, the filing requirements set forth in the Authority's Rules and Regulations are strictly applied. Exceptions that do not adhere to the filing requirements are dismissed without any review as to the merits of the exceptions. See, for example, U.S. Department of the Navy, Navy Resale Activity, Guam and American Federation of Government Employees, Local 1689, 39 FLRA 1109 (1991). In the cases cited by the Agency, there was a failure to serve a copy of the exceptions on the other party to the arbitration, either by certified mail or in person, after the exceptions had been properly filed with the Authority. The Authority declined to dismiss the exceptions based on that procedural insufficiency, noting that, in each case, the other party was in receipt of the exceptions and there was no evidence of any harm to that party.
The Agency appears to suggest that service on a union of an agency head disapproval is comparable to service of exceptions on the opposing party and, therefore, that the Authority should determine whether the Union received the disapproval and assess whether there was any harm to the Union. In our view, the two situations are not analogous. Rather, the service of a disapproval is comparable to the initial filing of exceptions to an award with the Authority. Just as the filing of exceptions initiates the arbitral review processes of the Authority, the service of an agency head disapproval initiates the process culminating in the Authority's review of a negotiability determination. In other words, the filing of a union's petition for review with the Authority is triggered by the service on the union of a timely and proper agency head disapproval. Strict adherence to the regulatory requirements for service of a disapproval is necessary in order to determine whether a petition for review meets the statutory filing requirements contained in section 7117(c) of the Statute, as well as the procedural requirements set forth in part 2424 of the Authority's Rules and Regulations. In contrast, the Authority's ability to entertain a party's exception to an arbitrator's award is unaffected by the method or timeliness of service of those exceptions on the opposing party. None of the arguments advanced by the Agency in its motion for reconsideration persuades us that a departure from strict adherence to our regulations is warranted with regard to the service of an agency head disapproval.
Finally, we note that in enacting the Statute, Congress intended that parties bargain collectively and execute written agreements embodying the negotiated terms. See 5 U.S.C. §§ 7101 and 7114. The review process set forth in section 7114(c) is designed to provide review of such agreements by agency heads for the limited purpose of ensuring that they conform with law, rule, or regulation. Where, as in this case, the agency head fails to properly serve its disapproval, section 7114(c)(3) of the Statute requires that the agreement take effect and be binding on the parties.(4) That is precisely the finding made by the Authority in 41 FLRA 220.
In sum, we find that the Agency has failed to establish extraordinary circumstances warranting reconsideration of the Authority's decision.
V. Order
The Agency's motion for reconsideration of the Authority's decision in 41 FLRA 220 is denied.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. In our decision in 41 FLRA 220, we stated that the agreement was executed on April 4, 1990, while in our show cause order we found that the date of execution was April 2, 1990. The record in 41 FLRA 220 indicates that the agreement was signed by different parties on both April 2 and April 4, and that the parties have variously referred to both dates as the date on which the agreement, was executed. In our view, April 4, 1990, which is the date on which the later signatures were affixed to the agreement, is the date of execution.
2. Our inadvertent reference in 41 FLRA 220 to May 4, 1991, as the date on which the agreement became effective and binding is hereby corrected to reflect the proper date.
3. Obviously, the Agency was referring to section 2424.3 of our Rules and Regulations, which sets forth the time limit for filing a petition for review, rather than section 2424.7(a), which sets forth the time limit for filing a union response to an agency statement of position.
4. As we stated in 41 FLRA 220, provisions in an agreement that are contrary to the Statute or any other applicable law, rule or regulation may not be enforceable under section 7114(c)(3) and, therefore, may be challenged in other appropriate proceedings.