41:1292(100)NG - FLRA WASHINGTON, D.C., AFGE LOCAL 2776 and U.S. DOD ARMED FORCES RADIO AND TELEVISION SERVICE BROADCAST CENTER, SUN VALLEY, CALIFORNIA -- 1991 FLRAdec NG
[ v41 p1292 ]
41:1292(100)NG
The decision of the Authority follows:
41 FLRA NO. 100
41 FLRA 1292
23 AUG 1991
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2776
(Union)
and
U.S. DEPARTMENT OF DEFENSE
ARMED FORCES RADIO AND TELEVISION SERVICE
BROADCAST CENTER
SUN VALLEY, CALIFORNIA
(Agency)
0-NG-1952
ERRATA
August 30, 1991
The Authority's August 23, 1991, Order dismissing the
Union's petition for review in the above-captioned case contained
a typographical error. The 2nd paragraph on page 3 of the
Authority's Order is revised to read:
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 and Section
2424.1 of the Authority's Regulations.
By copy of this Errata, a corrected copy of the Order is
served on the parties.
For the Authority.
Alicia N. Columna
Director, Case Control Office
41 FLRA No. 100
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2776
(Union)
and
U.S. DEPARTMENT OF DEFENSE
ARMED FORCES RADIO AND TELEVISION SERVICE
BROADCAST CENTER
SUN VALLEY, CALIFORNIA
(Agency)
0-NG-1952
ORDER DISMISSING PETITION FOR REVIEW
August 23, 1991
On July 8, 1991, 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 mail 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 the parties executed
a collective bargaining agreement on May 6, 1991. On June 5,
1991, the Agency informed the Union by telephone and by facsimile
transmission (FAX) that the agreement was disapproved. However,
nothing in the record establishes that the disapproval was timely
served on the Union. Accordingly, in the July 8th 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 8th
Order by submitting a postmarked mail receipt or other written
receipt executed by a party or person served with the Agency
head's disapproval.
The Agency, in its response to the July 8th Order to Show
Cause, argues that the facsimile transmission meets the
requirements of 5 U.S.C. 7114(c). The Agency claims that because
the Union acknowledges receipt of the FAXed copy of the Agency
head disapproval, and the Union does not claim that it was harmed
by the manner in which the Agency's notice of disapproval was
served, the disapproval was served properly. In its response to
the Authority's July 8th Order, the Union states that the
disapproval was "not properly and timely served on the Union."
The Agency's arguments are misplaced. Although section
7114(c)(2) of the Statute does not specify the method of
accomplishing service, the Authority has prescribed the form and
method of accomplishing and establishing service in its Rules and
Regulations. 5 C.F.R. 2429.27.
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 [PAGE 2] 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). 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 June 6, 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 and section
2424.1 of the Authority's Regulations.
Accordingly, the Union's petition for review is dismissed.
For the Authority.
Alicia N. Columna
Director, Case Control Office