46:0291(25)NG - - NFFE, Local 2030 and Interior, Bureau of Land Management, Idaho Falls District, Idaho Falls, ID - - 1992 FLRAdec NG - - v46 p291
[ v46 p291 ]
The decision of the Authority follows:
46 FLRA No. 25
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
IDAHO FALLS DISTRICT OFFICE
IDAHO FALLS, IDAHO
ORDER DISMISSING PETITION FOR REVIEW
October 23, 1992
On September 1, 1992, the Authority issued an Order directing the parties to furnish documentation to show: (1) when the parties' negotiated agreement was executed; (2) when the Agency's disapproval was served on the Union, and (3) whether the disapproval was served by mail or in person. The Union's responses addressing the issues in the Order are dated September 9, October 2, and 8, 1992. The Agency's responses are dated September 15, 23, and 25, 1992. For the reasons which follow, the Authority dismisses the Union's petition for review 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). 5 U.S.C. § 7117.
Section 7114(c)(3) of the Statute requires an agency's disapproval to be served on the union within 30 days after the date the parties' negotiated agreement was executed. 5 U.S.C. § 7114(c)(3). The date of service is the date the disapproval is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). Proof of service by mail or by personal delivery is either "[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. 5 U.S.C. § 7117. Absent a timely disapproval, the agreement becomes effective on the 31st day after its execution, subject to the Statute and applicable law, rule, or regulation. 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).
The documentation submitted by the parties indicates that the local parties' negotiated agreement was executed on July 17, 1992. Consequently, under Section 7114(c)(3) of the Statute, any disapproval of that agreement in order to be timely, had to be either postmarked by the U.S. Postal Service or received in person by the Union no later than Sunday, August 16, l992.(1) The August 12, l992, memorandum stating that the Agency head disapproved portions of the agreement is addressed to the District Manager, Idaho Falls District, Bureau of Land Management from the Director of Personnel. The August 12 memorandum does not indicate that a copy was served on the Union.
The Agency asserts that its August 12 memorandum was served on the Union by certified mail sometime between August 12 and 15. As proof of service the Agency provided a signed certified return receipt card. The card is addressed to Norris L. Slatter, 250 S. 4th Ave., Pocatillo, ID 83201, signed for by E. Hall, and the date of delivery is August 17, l992. The return receipt, however, does not establish when the disapproval was delivered to the U.S. Postal Service. See United States Marine Corps, Marine Corps Base, Camp Smedley D. Butler, Okinawa, Japan, 29 FLRA 1068, 1068 at n.1 (1987) (date of mailing was established by party submitting a postmarked certified mail receipt).
The Agency has not established that the return post office receipt addressed to Norris L. Slatter was signed for by a representative of the Union. In addition, the Agency has not provided any documentation to show that the Union President or any other Union official has ever received the copy of the disapproval represented by the return post office receipt or that the Union has been officially served with the Agency's disapproval.(2) Absent proof of service of an Agency head disapproval on the Union by mail or by personal delivery on or before August 16, the local parties' July 17 negotiated agreement became effective on Monday, August 17, 1992.
The Union filed its petition for review in the above-captioned case on the basis of a facsimile transmission (FAX) copy of the disapproval received by the Union President on August 17, the 31st day after the agreement was executed. Even if the FAX copy of the disapproval had been transmitted by the Agency and received by the Union within the 30-day period, such "service" does not conform to the prescribed form and method of accomplishing and establishing service in the Authority's Regulations. 5 C.F.R. § 2429.27. See, for example, 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 has failed to establish that it served its disapproval 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. 5 U.S.C. § 7114(c)(3). Consequently, the entire agreement, as negotiated and executed on July 17, 1992, became effective and binding on August 17, 1992.(3)
Therefore, the Union's petition for review does not raise a dispute concerning an effective and binding negotiated agreement that is cognizable under section 7117 of the Statute and section 2424.1 of the Authority's Regulations.
Accordingly, the Union's petition for review is dismissed.
For the Authority.
Alicia N. Columna
Director, Case Control Office
(If blank, the decision does not have footnotes.)
1. The Agency is in error when it asserts that, "[s]ince the 30th day falls on the weekend, the final day carries over to Monday, August 17, 1992." It appears that the Agency is attempting a misplaced application of the provisions of section 2429.21(a) of the Authority's Regulations. 5 C.F.R. § 2429.21(a). Section 2429.21 is entitled, "Computation of time for filing papers." Section 2429.21 has nothing to do with service of documents between the parties, it is concerned with the filing of documents directly with the Authority. There is no provision in the Statute or the Regulations for extending the 30-day time period in 5 U.S.C. § 7114(c)(3). See, for example, American Federation of Government Employees, National Veterans Affairs Council and U.S. Department of Veterans Affairs, Veterans Health Services and Research Administration, Washington, D.C., 40 FLRA 195, 197 (1991) (the 30-day time period for agency head disapproval of the agreement expired on Sunday, April 29, 1990).
2. The Union contends that it has never received the certified copy of the Agency's disapproval signed for by E. Hall. In addition, the Union states that nothing on the certified return receipt card indicates that the correspondence was sent to Mr. Slattery in his official capacity as Union President and that E. Hall is not a Union employee.
3. Provisions in the agreement that are contrary to the Statute or other applicable law, rule or regulation may not be enforceable. 5 U.S.C. § 7114(c)(3). Questions as to the validity of such provisions may be raised in other appropriate proceedings.