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46:1515(144)NG - - AFGE Local 3172 and HHS, SSA, San Jose District Office, San Jose, CA - - 1993 FLRAdec NG - - v46 p1515

[ v46 p1515 ]
The decision of the Authority follows:

46 FLRA No. 144




LOCAL 3172










February 25, 1993

On February 5, 1993, the Authority issued an Order directing the parties to furnish documentation showing that the Agency head's disapproval of a Memorandum of Understanding (MOU) was timely served on the Union. The Union and the Agency have each filed a timely response to the February 5 Order. 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). 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 record in this case indicates that the MOU was executed on December 4, l992. Accordingly, the Agency head's disapproval of the MOU has to be served (postmarked by the U.S. Postal Service or delivered in person) no later than Sunday, January 3, l993. See, for example, National Federation of Federal Employees, Local 2030 and U.S. Department of the Interior, Bureau of Land Management, Idaho Falls District Office, Idaho Falls, Idaho, 46 FLRA 291, 292 at n.1 (1992) (Idaho Falls).

The Union, in its response, stated that it received two copies of the Agency's disapproval. Although both copies were mailed by certified mail, only one envelope contained a postmark. That envelope was postmarked January 5, l993.

The Agency, in its response, asserts that its disapproval was served on January 4, l993. No documentation was provided by the Agency. The Agency contends, however, that the Authority's calculation of the 30 days, which included both a Federal holiday and a weekend, improperly denies it the 30 days the Statute permits after the date of execution of a negotiated agreement for the agency's disapproval. 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, l990).

In addition, the Agency contends that section 2429.27(b) of the Authority's Regulations does not apply to service of the agency head's disapproval. 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), the Authority concluded that strict 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 Reguations.

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 MOU was executed. 5 U.S.C. § 7114(c)(3). Consequently, the entire MOU, as negotiated and executed on December 4, l992, became effective and binding on January 4, l993.(*)

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.)

*/ Provisions in the MOU 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.