40:0195(20)NG - - AFGE, National Veterans Affairs Council and VA, Veterans Health Services and Research Administration, Washington, DC - - 1991 FLRAdec NG - - v40 p195



[ v40 p195 ]
40:0195(20)NG
The decision of the Authority follows:


40 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL VETERANS AFFAIRS COUNCIL

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

VETERANS HEALTH SERVICES AND RESEARCH ADMINISTRATION

WASHINGTON, D.C.

(Agency)

0-NG-1827

(39 FLRA No. 90 (1991))

ORDER DENYING REQUEST FOR RECONSIDERATION

April 12, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's request for reconsideration of the Authority's decision in 39 FLRA No. 90 (1991). The Union did not file an opposition to the Agency's request. Because the Agency fails to establish extraordinary circumstances that would warrant reconsideration of our decision, we will deny the request.

II. The Decision in 39 FLRA No. 90

In 39 FLRA No. 90, the Union filed a petition for review 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 Federal Service Labor-Management Relations Statute (the Statute). As the parties were in disagreement over the date on which, and method by which, the Agency's disapproval of the disputed provision was served on the Union, the Authority issued an Order directing the Agency to file with the Authority proof of service of the Agency's disapproval of the FSIP-imposed provision. 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.

In response, the Agency argued that on May 4, 1990, the Acting Chief Medical Director, Veterans Health Services and Research Administration signed a letter misdated May 5, 1990, disapproving the provision imposed by the FSIP on March 30, 1990. According to the Agency, the disapproval letter with the date corrected to May 4, 1990, was hand carried to the Agency mailroom on May 4, 1990, for delivery to the U.S. Postal Service that same day. The Agency claimed further that the Agency mailroom delivered the letter to the U.S. Postal Service on May 4, 1990. The Agency also noted that a copy of the misdated letter was transmitted to the Union by electronic facsimile transmission (FAX) on May 4, 1990.

In support of its position, the Agency attached an affidavit by an attorney in the Agency's Office of the General Counsel in which the attorney stated that on May 4, 1990, he hand-carried to the Agency's mailroom the disapproval letter to be sent to one Union official, and a copy of the disapproval letter to be sent to a second Union official, by certified mail on that date. The attorney stated further that "[c]uriously, neither certified receipt was returned to this office." The Agency also submitted an affidavit from the mailroom supervisor indicating that the Agency mailroom delivers Agency mail to the U.S. Postal Service on the same day it receives outgoing mail from the initiating Agency office.

The Authority concluded that the Agency had not demonstrated proper and timely service on the Union of a disapproval of the FSIP imposed provision. In so concluding, the Authority first rejected an Agency contention that 5 days should be added to the 30-day time period set out in section 7114(c) of the Statute for an agency head to review and approve a collective bargaining agreement because the FSIP decision was served on the Agency by mail. Rather, the Authority stated that as section 7114(c) of the Statute clearly establishes that 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 and not by service of a notice or other paper so as to require the adding of 5 days to the prescribed 30-day time period. In support, the Authority cited its decision in International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 560-63 (1990) (Panama Canal Commission) (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 had 30 days from that date in which to disapprove the agreement). The Authority also noted that there was 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. Consequently, the Authority held that as March 30, 1990, the date the FSIP decision was issued to, and served on, the parties constituted the date on which the parties' agreement was executed for purposes of agency head review under section 7114(c) of the Statute, the 30-day time period for agency head disapproval of the agreement expired on April 29, 1990. Accordingly, because it was clear that the Agency had not served its disapproval of the FSIP imposed provision on the Union by April 29, 1990, the Authority found that the Agency's disapproval was not timely served on the Union.

In addition, the Authority noted that without regard for the parties' disagreement over the due date for the Agency's disapproval, the Agency had not demonstrated proper, timely service of the disapproval on the Union. First, the Authority noted that as its Regulations do not provide for service by facsimile transmission, the FAX transmission of the disapproval letter did not satisfy the requirement of section 2429.27(b) of its Regulations that documents and papers be served by certified mail or in person. Second, the Authority noted that as the Agency did not submit a return post office receipt or other written receipt executed by the person served, the Agency did not provide proof within the meaning of the Authority's regulations that it timely served the Union with its disapproval of the disputed provision.

The Authority noted that 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. Accordingly, the Authority dismissed the Union's petition for review.

III. Agency's Request for Reconsideration

The Agency contends that the Authority's decision dismissing the negotiability appeal "is without merit, inconsistent with other Authority rulings, and conflicts with general litigation practice." Request for Reconsideration at 1.

First, the Agency objects to the Authority's decision that section 2429.22 of its Regulations does not authorize the addition of 5 days to the 30-day time limit provided in section 7114(c) of the Statute for an agency to review an agreement. The Agency claims instead, that the Authority's ruling constitutes a retroactive change in the Authority's procedural rules because "there was no Authority precedent on the application of additional mail service days to FSIP-imposed provisions" at the time of the Agency's disapproval in this case. Id. at 2. The Agency notes that it is clear that the FSIP decision was served on the Agency by mail and that the Agency could disapprove a FSIP-imposed decision under section 7114(c)(2) of the Statute. Further, according to the Agency, it is just as clear that "the plain language of section 2429.22 applies . . . to all instances where the operative event occurs by mail service." Id. Thus, the Agency contends that the Authority's retroactive application of its decision in Panama Canal Commission, involving an interest arbitrator's decision, to the FSIP order in this case "in the face of the plain language of section 2429.22, manifestly is unfair." Id.

In addition, the Agency claims that the Authority's "ruling that the date of the FSIP order is the date of 'execution' for purposes of section 7114(c)(2) has no basis in law or practice." Id. The Agency argues that the Statute is silent on the matter and, further, that the FSIP order, by directing the parties to adopt the Union's proposal, "clearly envision[ed] some further action by the parties to effect the FSIP order." Id. The Agency also claims that Panama Canal Commission "is not completely on point" because it involved an interest arbitration decision and was based on the unique circumstances in that case, including the parties' joint request that the interest arbitration award encompass their entire agreement. Id. at 3. The Agency notes that in this case, on the other hand, there was no joint request for interest arbitration to resolve an impasse and the FSIP decision was imposed on the parties by operation of law.

Further, the Agency argues that the Authority's decision to not add 5 days to the 30-day time period prescribed in section 7114(c) of the Statute is inconsistent with other Authority rulings involving other time limits specified in the Statute. In this regard, the Agency claims, by way of example, that the Authority has added 5 days to the statutory time limit for exceptions to arbitration awards on the grounds that "the 5 additional mail service days does not expand the statutory 30-day time limit, but allows the parties the full benefit of 30 days to review an arbitration award and to file exceptions." Id.

The Agency also objects to the Authority's determination that the Agency had not established that it timely served the Union with its disapproval of the FSIP-imposed provision. The Agency argues that in response to the Authority's order directing the Agency to submit evidence of timely service of its disapproval, the Agency submitted two affidavits supporting its claim that the disapproval letter was served on May 4, 1990. The Agency states that "[n]o receipt for certified mail was provided because the [Agency] mailroom does not obtain USPS receipts for the numerous pieces of certified mail delivered daily to the USPS." Id. at 4.

Further, the Agency claims that in National Federation of Federal Employees, Local 405 and U.S. Army Aviation Systems Command and U.S. Army Troop Support Command, 33 FLRA 604 (1988) (U.S. Army Aviation Systems Command) the Authority has found "such affidavits sufficient, even without reliance on a USPS receipt, particularly in the absence of evidence from the union that the affidavits were false or otherwise incorrect." Id. The Agency notes that, although the Union did not produce the envelope containing the disapproval letter for purposes of establishing the postmark date or return the certified mail receipts, the Union's submission of the copy of the misdated letter transmitted to the Union by FAX indicates that the Union received the disapproval on May 4, 1990. Thus, the Agency claims that in light of the evidence in this case, "the Authority's insistence . . . on a non-existent USPS receipt as the exclusive means of establishing a certified mailing date is unreasonably narrow." Id. at 5.

Finally, the Agency objects to the Authority's dismissal of an affidavit of counsel and urges, instead, that the Authority reverse its order dismissing the Union's negotiability appeal.

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 not established extraordinary circumstances, within the meaning of section 2429.17, to warrant reconsideration of our decision in 39 FLRA No. 90.

We reject the Agency's claim that the Authority's refusal to permit 5 days to be added to the 30-day review period prescribed in section 7114(c) of the Statute in order to account for the mail service of the FSIP decision constitutes a retroactive change in the Authority's procedural rules. We note that it is well established that unless an agency head's notice of disapproval of an executed agreement under section 7114(c) of the Statute is served on the union involved, either by certified mail or by personal delivery, within 30 days from the date of execution of the agreement, the agreement will become final and binding on the parties on the 31st day. See, 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 (1987) (service of disapproval of Memorandum of Understanding on union involved 35 days after execution by the parties did not constitute timely service of disapproval within the 30-day time limit established by section 7114(c) of the Statute). 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); Washington Area Metal Trades Council, AFL-CIO and Naval Research Laboratory, Washington, D.C., 5 FLRA 596 (1981) (agency disapproval communicated to agency personnel by internal memo within the 30-day period but not served on union until more than 30 days after execution of agreement did not constitute a timely disapproval within the meaning of section 7114(c) of the Statute). In other words, it is clear that regardless of the method of transmittal of an agreement to an agency head for review under section 7114(c) of the Statute, an agency head has 30 calendar days from the date of execution of the agreement to approve or disapprove the agreement or the