40:1232(107)NG - - AFGE and Air Force, F.E. Warren AFB, Cheyenne, WY - - 1991 FLRAdec NG - - v40 p1232
[ v40 p1232 ]
The decision of the Authority follows:
40 FLRA No. 107
On May 9, 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 on January 16, 1991, in a computer message to local Agency officials, the Director of Personnel of the Strategic Air Command on behalf of the Agency head, disapproved three provisions of a collective bargaining agreement executed on December 17, 1990. However, nothing in the record establishes that the disapproval was timely served on the Union. Accordingly, in the May 9 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 May 9 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 May 9 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.
The Agency, in its response to the May 9 Order to Show Cause, contends that a printed copy of the January 16 computer message was hand delivered to the Union's president. The Agency also states that it "did not obtain at that time, nor is it able to acquire now, a signed receipt from [the Union president] that the document was personally served." Agency Response at 2. The Agency argues, however, that "there is sufficient evidence in the record to establish that the Union was timely served with the . . . disapproval." Id. First, the Agency notes that the Union stated in its petition for review that it received the computer message on January 16. The Agency also notes that the Union included a copy of the computer message with its petition for review. The Agency argues that as the computer network used to transmit the disapproval message is accessible only by Agency personnel, the Union could not have obtained a copy of the message unless it was provided with one. Thus, the Agency asserts that "the wording of the Union's petition for review signed by the Union's attorney, coupled with a printed copy of the computer message, provides sufficient proof that the Agency's disapproval . . . was timely served on the Union." Id.
In further support of its position, the Agency attached an affidavit by the Chief of Employee and Labor Relations at Warren Air Force Base in which he states that he personally hand-delivered the disapproval message to the Union president on January 16, 1991.
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 January 17, 1