43:0184(17)NG - - AFGE Local 2776 and Armed Forces Radio and Television Service, Broadcast Center, Sun Valley, CA - - 1991 FLRAdec NG - - v43 p184
[ v43 p184 ]
The decision of the Authority follows:
43 FLRA No. 17
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
ARMED FORCES RADIO AND TELEVISION SERVICE
SUN VALLEY, CALIFORNIA
(41 FLRA 1292 (1991))
ORDER DENYING MOTION FOR RECONSIDERATION
November 20, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in American Federation of Government Employees, Local 2776 and U.S. Department of Defense, Armed Forces Radio and Television Service Broadcast Center, Sun Valley, California, 41 FLRA 1292 (1991). The Agency is seeking reconsideration of the Authority's order dismissing the Union's petition for review. The Union did not file an opposition to the Agency's motion for reconsideration. Because the Agency fails to establish that extraordinary circumstances exist that would warrant reconsideration of our decision, we will deny the motion.
II. The Decision in 41 FLRA 1292
In 41 FLRA 1292, the Union filed a petition for review with the Authority of "every provision that the [Agency] and/or Washington Headquarters Services has declared to be non-negotiable" under section 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute). Petition at 1. The record indicated that the Agency had advised the Union of the Agency head disapproval telephonically and by means of an electronic facsimile transmission (FAX). In an attachment to the petition for review, the Union acknowledged that it had received the Agency's FAXed disapproval of the collective bargaining agreement within 30 days of execution of the agreement.
In an Order, dated July 8, 1991, the Authority directed the parties to show cause why the Union's petition for review should not be dismissed for failure to raise negotiability issues which may be addressed by the Authority under section 7117 of the Statute. The Authority stated that nothing in the record indicated that the agency head disapproval was timely served on the Union. Citing 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) (Veterans Health and Research Administration), request for reconsideration denied, 40 FLRA 195 (1991), the Authority noted that a FAX of an agency head disapproval does not constitute timely service of that disapproval on the union in accordance with section 2429.27 of the Authority's Rules and Regulations. The Authority further 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 under section 7117 of the Statute.
The Authority, among other things, directed the parties to comply with the Order to Show Cause by "submitting a postmarked certified mail receipt, a return post office receipt, or other written receipt executed by the party or person served with the Agency's disapproval." Order to Show Cause at 2-3. The Authority informed the parties that failure to comply with its Order not later than July 22, 1991, would result in dismissal of the Union's petition for review.
Both parties responded to the Authority's Order. The Union requested that the petition for review be dismissed on the basis that the Agency head disapproval was "not properly and timely served on the Union." 41 FLRA at 1293. The Agency argued that the FAX met the requirements of section 7114(c) of the Statute. Further, the Agency argued that inasmuch as the Union acknowledged receipt of the FAX of the Agency head disapproval and did not claim that it was harmed by the manner in which the Agency's notice of disapproval was served, the disapproval was served properly.
Based on the responses provided by the parties, the Authority concluded in 41 FLRA 1292 that neither party had presented evidence that the Agency head disapproval had been served on the Union either by certified mail or in person, as required by section 2429.27(b), within 30 days after the agreement was executed. The Authority again noted its decision in Veterans Health and Research Administration, finding, in relevant part, that transmission of an agency head disapproval by FAX did not satisfy the requirement of the Authority's Rules and Regulations of service by certified mail or in person. Consequently, in the absence of a properly served disapproval, the Authority found that the entire agreement, as negotiated and executed, became effective and binding on June 6, 1991.
The Authority also noted, consistent with section 7114(c)(3) of the Statute, that provisions in the agreement that were contrary to the Statute or other applicable law, rule or regulation could not be enforced. Instead, any questions concerning the validity of those provisions could be raised in other appropriate proceedings. Having found that the agreement became effective and binding, however, the Authority dismissed the petition for review, finding that the petition did not raise a dispute that was cognizable under section 7117 of the Statute.
III. Motion for Reconsideration
The Agency contends that it met the statutory requirements of section 7114(c)(2) and (3) of the Statute by serving the disapproval of the collective bargaining agreement on the Union, by FAX, within 30 days. The Agency argues that the Statute requires only that an agency approve or disapprove a collective bargaining agreement within 30 days and "is silent on the method by which the approval or disapproval is to be communicated." Motion at 3. The Agency also argues that there is no requirement in the Statute to identify the specific portions of the collective bargaining agreement that are being disapproved.
The Agency also contends that, because the Union acknowledged receipt of the disapproval and was, therefore, on notice of that disapproval, strict compliance with section 2429.27(b) of the Authority's Rules and Regulations "thwarts the statutory intent that the parties be accorded the right to a single ruling as to which subjects of a collective bargaining agreement are non-negotiable." Id. at 4. The Agency argues that determining that its disapproval of the collective bargaining agreement was untimely, based on a strict construction of the Authority's Regulations, would require the raising of negotiability issues to be raised in either an arbitration or an unfair labor practice context. According to the Agency, these methods are "an inefficient, piece-meal means of resolving such issues[.]" Id. Further, the Agency argues that strict construction of the Authority's Rules and Regulations is inconsistent with section 7101(b) of the Statute, which states that the provisions of the Statute should be interpreted in a manner that is consistent with an effective and efficient Government. The Agency asserts that "the [U]nion's written admission [that the Agency's disapproval was received] is as reliable a method of proof of service of notice of disapproval as the securing, if possible, of either" service by certified mail or personal delivery. Id. at 5.
Finally, the Agency contends that Authority precedent with regard to the service of documents under section 2429.27(b) of the Authority's Regulations supports a case-by-case determination of "whether timely and sufficient notice was provided to the other party." Id. In support of this contention, the Agency cites U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2144, 39 FLRA 269, 272 (1991) and U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1174 (1990). The Agency argues that, because the Union does