[ v41 p220 ]
41:0220(20)NG
The decision of the Authority follows:
41 FLRA NO. 20
41 FLRA 220
07 JUN 1991
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL MINT COUNCIL
(Union)
and
U.S. DEPARTMENT OF THE TREASURY
BUREAU OF THE MINT
SAN FRANCISCO, CALIFORNIA
(Agency)
0-NG-1826
ORDER DISMISSING PETITION FOR REVIEW
On July 26, 1990, the Authority issued an Order directing
the parties to show cause why the Union's petition for review in
the above-captioned case should not be dismissed for failure to
raise negotiability issues which may be addressed by the
Authority under section 7117 of the Federal Service Labor -
Management Relations Statute (the Statute).
Section 7114(c)(2) of the Statute provides that the head of
an agency 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. Any
disapproval by an agency head must be served on the exclusive
representative within the 30 days after the execution of the
agreement. American Federation of Government Employees, AFL -
CIO, Local 1760 and U.S. Department of Health and Human Services,
Social Security Administration, 28 FLRA 1142 (1987) (Social
Security Administration). The Authority's Regulations provide two
methods of service. Specifically, service of any document,
including "documents and papers served by one party on another,"
must "be made by certified main or in person. 5 C.F.R.
2429.27(b). The date of service is the date a document is
deposited in the mail or is delivered in person. 5 C.F.R.
2427.29(d). Proof of service consists of a "return post office
receipt or other written receipt executed by the party or
person served...." 5 C.F.R. 2429.27(b). A petition for review of
negotiability issues filed by a union in response to an agency
head disapproval which is not timely served on the union does not
raise negotiability issues which may be addressed by the
Authority under section 7117 of the Statute. Social Security
Administration.
The record in this case indicates that on May 2, 1990, in an
electronic facsimile transmission (fax) to a local Agency
official, the Director of Human Resources Directorate of the
Department of the Treasury on behalf of the Agency head,
disapproved Section 3 of a collective bargaining agreement
executed on April 4, 1990. The parties are in disagreement as to
whether service of the Agency head disapproval was accomplished
by means of personal delivery. Accordingly, in the July 26, 1990
Order to Show Cause, the Authority directed the parties to
provide evidence of the date of service of the disapproval. In
particular, the Authority indicated that the parties may comply
with the July 26 Order by submitting a postmarked mail receipt, a
return post office receipt, or other written receipt executed by
a party or person served with the Agency head's disapproval.
The Union, in its response to the July 26 Order to Show
Cause, requests that its petition for review be dismissed on the
ground that the Agency head's disapproval was not served on the
Union either by certified mail or in person as required by
section 2429.27(b) of the Authority's Regulations. To support its
position, the Union has submitted a declaration from the Union
President of the Mint Counsel. The Union President states in
pertinent part that the Secretary to the Superintendent of the
Mint, "did not hand-carry ... or give me the disapproval
facsimile".
The Agency, in its response to the July 26, Order to Show
Cause, contends that the agency head disapproval was
hand-delivered to the Union on May 2, 1990. In support of its
position, the Agency has submitted the declaration of two of its
employees, the Labor Relations Officer and the Secretary to the
Superintendent of the Mint. The Labor Relations Officer states
that she "faxed" the union's copy of the agency head review to
... and instructed the Secretary to the Superintendent to
hand-carry the memorandum to the union. The Secretary to the
Superintendent of the Mint states that she "gave him (Union
President) the disapproval facsimile on May 2, 1990". The Agency
also argues that "it is a well established presumption that
Government officials act correctly, honestly, and in good faith".
Agency response at 4.
The Agency further argues that "(t)he Statute does not
specify any form or method of accomplishing service of the agency
head's disapproval of an agreement." Consequently, the Agency
contends, since both the Agency and the Union agree that the
Union received the disapproval on May 2, 1990 and that the
disapproval was in writing, the agency head's disapproval of an
agreement, even though by facsimile transmission, meets the
requirements of 5 U.S.C. 7114(c).
The Agency's arguments are misplaced. Although section
7114(c)(2) of the Statute does not specify form or method of
accomplishing service, the Authority has prescribed the form and
method of accomplishing and establishing servicing in its Rules
and Regulations found at 5 C.F.R. 2429.27. As these matters are
clearly set forth in the Authority's Regulations, the Agency's
argument that Government officials are presumed to "act
correctly, honestly, and in good faith" is not germane.
Neither party has responded to the Authority's Order with
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) of the Authority's Regulations, within 30
days after the agreement was executed. See, for example, American
Federation of Government Employees, National Veterans Affairs
Council and U.S. Department of Veterans Affairs, Veterans Health
and Research Administration, Washington, D.C., 39 FLRA 1055,
1058 (1991), request for reconsideration denied, 40 FLRA 195
(1991) (neither evidence of transmission of agency head
disapproval by facsimile transmission (FAX) nor affidavits
attesting to mail service within the 30-day period satisfied the
requirements of section 2429.27(d) of the Authority's Regulations
that documents and papers be served by certified mail or in
person). See also National Federation of Federal Employees, Local
1332 and Department of the Army. Headquarters, U.S. Army Material
Development and Readiness Command, 5 FLRA 599 (1981) (telephonic
disapproval within the 30-day period did not constitute a
disapproval within the meaning of section 7114(c) of the
Statute). Consequently, the entire agreement, as negotiated and
executed, became effective and binding on May 4, 1991. 1
Therefore, the Union's petition for review does not raise a
dispute concerning an effective and binding negotiated agreement
that is cognizable under section 7117 of the Statute.
Accordingly, as the Union's petition for review does not
meet the conditions for review under section 7117 of the Statute
and section 2424.1 of the Authority's Regulations, it is
dismissed.
For the Authority.
Alicia N. Columna
Director, Case Control Office