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 ]
43:0184(17)NG
The decision of the Authority follows:


43 FLRA No. 17

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

(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 not claim that it was harmed by the manner of service, the Union's petition for review should not be dismissed. The Agency asserts that "[n]either the [S]tatute requiring notice of disapproval nor the rules of the Authority . . . state that failure to follow the method of service of such notice is the equivalent of failure to timely file a pleading in the office of the clerk of the Authority." Id. at 8.

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 failed to establish extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of the decision in 41 FLRA 1292.

In American Federation of Government Employees, National Mint Council and U.S. Department of the Treasury, Bureau of the Mint, San Francisco, California, 41 FLRA 1004 (1991) (Bureau of the Mint), we considered a motion for reconsideration which raised contentions substantially similar to the ones presented by the Agency in this case. In Bureau of the Mint, we denied an agency's motion for reconsideration of an Authority order which dismissed a union's petition for review because neither party responded to the Authority's order to show cause with evidence that the agency head disapproval was served on the union either by certified mail or in person, as required by the Authority's Rules and Regulations. In denying the agency's motion, we determined that service of the agency head disapproval on the union within 30 days by FAX did not satisfy the requirements of service under section 2429.27(b) of the Authority's Rules and Regulations. We reiterated that the Authority requires that an agency head disapproval be served on the exclusive representative in accordance with the Authority's Rules and Regulations.

We noted that to constitute service, the disapproval must be in written form and either mailed by certified mail or delivered in person to the union's designated representative. We stated that "[s]trict adherence to the regulatory requirements for service of a disapproval is necessary in order to determine whether a petition for review meets the statutory filing requirements contained in section 7117(c) of the Statute, as well as the procedural requirements set forth in part 2424 of the Authority's Rules and Regulations." Bureau of the Mint, 41 FLRA 1009-10. We concluded that "a departure from strict adherence to our regulations is [not] warranted with regard to the service of an agency head disapproval." Id. at 1010.

Accordingly, consistent with our decision in Bureau of the Mint, we reject the Agency's contention that it met the statutory requirements of section 7114(c) of the Statute when it FAXed the agency head disapproval to the Union within the 30-day period set forth in section 7114(c)(2) of the Statute. As noted above, service by FAX does not constitute service of an agency head disapproval within the meaning of section 2429.27(b) of the Authority's Rules and Regulations. As we noted in Bureau of the Mint, in enacting the Statute, Congress intended that parties bargain collectively and execute written agreements embodying the negotiated terms. See 5 U.S.C. §§ 7101 and 7114. The review process set forth in section 7114(c) is designed to provide review of such agreements by agency heads for the limited purpose of ensuring that they conform with law, rule, or regulation. Where, as in this case, the agency head fails to properly serve its disapproval, section 7114(c)(3) of the Statute requires that the agreement take effect and be binding on the parties.[(*)] That is precisely the finding made by the Authority in [our decision dismissing the union's petition for review.] Bureau of the Mint, 41 FLRA at 1010.

Further, we reject the Agency's contention that Authority precedent exists supporting a case-by-case interpretation of section 2429.27 of the Authority's Rules and Regulations. The cases relied on by the Agency in support of this contention concern the service of exceptions to arbitration awards. As noted in Bureau of the Mint, reliance on such cases are misplaced. In the cases cited by the Agency, there was no question that the exceptions were properly filed with the Authority under part 2425 of the Authority's Rules and Regulations. "In fact, in determining whether exceptions are properly filed with the Authority, the filing requirements set forth in the Authority's Rules and Regulations are strictly applied. Exceptions that do not adhere to the filing requirements are dismissed without any review as to the merits of the exceptions. See, for example, U.S. Department of the Navy, Navy Resale Activity, Guam and American Federation of Government Employees, Local 1689, 39 FLRA 1109 (1991)." Bureau of the Mint, 41 FLRA at 1009. Therefore, for the reasons set forth more fully in Bureau of the Mint, we find that the Agency's contention is without merit. Further, we find that none of the arguments advanced by the Agency in its motion for reconsideration persuades us that a departure from strict adherence to our regulations is warranted with regard to the service of an agency head disapproval. See id. at 1010.