39:1055(90)NG - - AFGE, National Veterans Affairs Council and VA, Veterans Health Services and Research Administration, Washington, DC - - 1991 FLRAdec NG - - v39 p1055
[ v39 p1055 ]
The decision of the Authority follows:
39 FLRA No. 90
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL VETERANS AFFAIRS COUNCIL
U.S. DEPARTMENT OF VETERANS AFFAIRS
VETERANS HEALTH SERVICES AND RESEARCH ADMINISTRATION
ORDER DISMISSING PETITION FOR REVIEW
March 11, 1991
The petition for review in this case concerns the negotiability of a provision imposed on the parties by the Federal Service Impasses Panel (FSIP) which was disapproved by the Acting Chief Medical Director, Veterans Health Services and Research Administration pursuant to section 7114(c) of the Statute. The Agency filed a statement of position and the Union filed a reply brief. After the filing of various supplemental submissions and motions, the Authority directed the Agency to file with the Authority, proof of service of the Agency's disapproval of the FSIP-imposed provision. Both parties filed responses to the Authority's order. For the reasons set out below, the Union's petition for review must be dismissed.
Section 7114(c)(2) of the Federal Service Labor-Management Relations Statute (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. Section 7114(c)(3) provides:
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.
To be timely, any disapproval must be served on the exclusive representative within the 30-day period. For example, American Federation of Government Employees, AFL-CIO, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, 28 FLRA 1142, 1143 (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 "by made by certified mail or in person." 5 C.F.R. º 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. º 2429.27(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. º 2429.27(b).
As relevant here, the parties separately requested assistance of the Federal Service Impasses Panel (FSIP) in resolving an impasse resulting from mid-term bargaining. On March 30, 1990, the FSIP consolidated the requests for assistance and directed the parties to adopt the Union's proposal on the matter in dispute. Department of Veterans Affairs, Washington, D.C. and National VA Council, American Federation of Government Employees, AFL-CIO, Case Nos. 90 FSIP 32, 90 FSIP 57 (1990). Subsequently, in a letter to the President, National VA Council, AFGE, the Acting Chief Medical Director, Veterans Health Services and Research Administration disapproved the provision in question.
The date and method of service of the Agency's disapproval are in dispute here. The Union argues that the disapproval is untimely because it was dated May 5, 1990, more than 30 days after the FSIP decision. In addition, the Union argues that the disapproval was not served on the Union in a manner consistent with the Authority's Rules and Regulations. The Union claims that the disapproval was transmitted to the Union by electronic facsimile transmission (FAX) rather than by personal service or certified mail as required by the Authority's Rules and Regulations. The Union also claims that it received a copy of the disapproval dated May 5, 1990, by mail, on May 9, 1990.
The Agency argues that the disapproval was timely. The Agency contends that as the FSIP decision was served by mail, it had an additional 5 days--a total of 35 days from the date of the decision--to disapprove the provision. The Agency asserts, in this regard, that it had until May 4, 1990, to disapprove the disputed provision. The Agency asserts further that although the disapproval originally was misdated May 5, 1990, it was "FAXED" to the Union on May 4, 1990, and a disapproval letter with the correct date of May 4, 1990, was served on the Union by certified mail on May 4, 1990.
As an initial matter, there is no statutory or regulatory basis on which to conclude that the Agency had 35 days from the issuance of the Panel decision in which to disapprove the disputed provision. Section 7114(c) of the Statute is clear: an agency head has 30 days from the date of execution of an agreement to disapprove a provision. The 30-day period is triggered by the execution of the agreement, not by "the service of a notice or other paper" within the meaning of section 2429.22 of the Authority's Regulations. Accordingly, the additional 5 days provided under that section does not apply here. See International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 560-63 (1990) (the date on which an interest arbitrator's award was served on the parties constituted the date of execution of the agreement, and the agency head had 30 days from that date in which to disapprove the agreement). Moreover, there is no assertion, or other basis on which to conclude, that the parties engaged in further negotiations after issuance of the FSIP decision or that any further actions were necessary after such issuance for the parties to execute their agreement. Compare National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA No. 70, slip op. at 2 (1991) (as the parties engaged in further, substantive negotiations after the issuance of an interest arbitrator's award, the issuance of the award did not constitute the date on which the agreement was executed).
We conclude, therefore, that the date on which the FSIP decision was issued to, and served on, the parties constitutes the date on which the parties' agreement was executed, for purposes of agency head review under section 7114(c) of the Statute. The FSIP decision was issued on March 30, 1990. Accordingly, the 30-day time period for agency head disapproval of the agreement expired on April 29, 1990.
Although the parties disagree over the date on which, and method by which, the Agency's disapproval of the disputed provision was served on the Union, there is no contention that the disapproval was served any earlier than May 4, 1990. Accordingly, as the 30-day time period expired on April 29, 1990, it is clear that the disapproval was not timely served on the Union.
Moreover, without regard for the parties' disagreement over the due date for the Agency's disapproval, the Agency has not demonstrated that it timely served the disapproval on the Union. As noted previously, the Authority directed the Agency to submit proof of service of its disapproval. In particular, the Authority directed the Agency to submit the certified mail receipts showing the date the disapproval was delivered to a U.S. Postal Office. Also as noted previously, the Agency timely responded to the Authority's order. The Agency states in its response that "the certified mail receipt in question was not returned" to the Agency. In an affidavit attached to the response, an attorney in the Agency's Office of the General Counsel states that he caused copies of the disapproval to be sent to two Union officials, by certified mail, on May 4, 1990. The affiant states that "[c]uriously, neither certified receipt was returned to this office."
It is clear that the Agency has not demonstrated proper, timely service of the disapproval on the Union. First, the Authority's Regulations do not provide for service by facsimile transmission. Accordingly, the "FAX" transmission of the disapproval does not satisfy the Authority's Regulations. Second, the Agency has not provided proof, within the meaning of the Authority's Regulations, that it properly and timely mailed the disapproval to the Union. As noted previously, proof of service consists of a return post office receipt or other written receipt executed by the person served. The Agency has provided neither. See U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 37 FLRA 877, 879 (1990) (union's assertion that it timely filed exceptions to an arbitration award did not constitute proof of service under section 2429.27(b) of Authority's Regulations). Compare National Federation of Federal Employees, Local 405 and U.S. Army Aviation Systems Command and U.S. Army Troop Support Command, 33 FLRA 604, 607 (1988) (as postmark on agency disapproval was illegible, agency date stamp on certified mail receipt coupled with affidavit constituted sufficient proof of service).
The Agency has not established that it timely served the Union with its disapproval of the disputed provision. 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. See, for example, Social Security Administration. Accordingly, the Union's petition for revi