[ v62 p147 ]
62 FLRA No. 39
DEPARTMENT OF DEFENSE
DOMESTIC DEPENDENT ELEMENTARY
AND SECONDARY SCHOOLS (DDESS)
PUERTO RICO DISTRICT
FORT BUCHANAN, PUERTO RICO
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
September 7, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a) (2) (E) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. Part 2424. The appeal concerns the Agency head's disapproval of five provisions of the parties' collective bargaining agreement.
There is a preliminary question as to whether the petition for review is properly before the Authority. For the reasons explained below, we find that the Agency head's disapproval was not timely served on the Union. As a result, consistent with Authority precedent, the petition for review is dismissed.
It its petition for review, the Union claimed that the Agency head's disapproval was not timely served on the Union. The Authority issued an order directing both parties to show cause why, consistent with Authority precedent, "the petition for review should not be dismissed for failure to meet the conditions governing review of negotiability issues as set forth in § 7117 of the Statute." Notice and Order to Show Cause at 3.
Both the Union and the Agency filed responses to the show cause order. Thereafter, an Authority representative conducted a post-petition conference pursuant to § 2424.23 of the Authority's regulations. During that conference, the parties requested that the Authority resolve the issue whether the Agency head's disapproval was timely served prior to submission of the parties' briefs. The Authority's representative informed the parties that, in the event a decision on their request was not rendered prior to the due dates for their respective submissions, the parties should file them and "be prepared to address this issue in their briefs." Record of Post-Petition Conference at 5. A decision was not rendered on the service issue and, in due course, the Agency timely filed a Statement of Position, the Union timely filed a Response [n2] , and the Agency timely filed a Reply. Consistent with the Authority representative's direction, the parties addressed both the timely service issue and the merits of the Union's petition in these filings.
Although the Authority was free to resolve the service issue based only on the responses to the show cause order, it did not do so and, instead, resolves it here. In these circumstances, and as the Authority's representative directed the parties to address the service issue in their submissions following the post-petition conference, we resolve this issue based on the Union's Petition, the parties' responses to the show cause order, the Agency's Statement of Position, the Union's Response, and the Agency's Reply. Doing so, we note at the outset that the parties executed their agreement on July 13, 2005, and that in order to be considered timely under § 7114(c) of the Statute, the Agency head's disapproval "had to [be] served (postmarked by the U.S. Postal Service [ v62 p148 ] or delivered in person) no later than Friday, August 12." [n3] Id. at 2.
The record indicates that the Agency's disapproval was sent, by certified mail, on August 11, 2005. The envelope was addressed to the Union president by name at the Office of the District Superintendent of Schools. [n4] The parties agreed at the post-petition conference that the street address on the envelope--218 Brook Street--is the address for the base's mail distribution center. Record of Post-Petition Conference (Record) at 2. According to the Agency, that street address was used because it is "the official mailing address that the Ft. Buchanan postal service requires to be used for all official mail coming to Ft. Buchanan, the military installation on which Antilles is located." Statement of Position at 5.
After the disapproval was delivered to the Superintendent's Office from the distribution center, it was hand-delivered to the Union's office, which is located in a different building from the Superintendent's Office. The disapproval was signed for, on August 18, 2005, by an individual who was employed by the Union as a consultant. The individual later gave the Union President the envelope containing the disapproval. The disapproval was not served on the Union at its base post office box. [n5]
III. Positions of the Parties
A. Union's Position
The Union argues that the Agency head's disapproval was not timely served on the Union. As a consequence, according to the Union, the agreement provisions went into effect and, as such, the petition for review was merely "a protective action." Petition for Review at 6.
In disputing that service was proper, the Union states that it maintains a post office box at a substation operated by the U.S. Postal Service on the Agency's facility at Fort Buchanan, and that the Union has routinely received Agency correspondence at the post office box for 30 years. In this regard, the Union disputes the Agency's claim that all mail to the Union must be sent to the Agency's "mail distribution center at 218 Brook Street ...." Response, Attachment C at 1. According to the Union, Agency correspondence is routinely sent to the Union's post office box, which is the Union's legal address, as specified in reports that are required to be filed with the U.S. Department of Labor. Among other things, the Union provides copies of Agency correspondence that was sent to the Union at its post office box in calendar years 2004 and 2005.
The Union acknowledges that "mail to the union has occasionally been misaddressed to the Superintendent's Office . . . and then forwarded to the union . . . ." Response at 4. However, the Union asserts that "[t]he conduct of third parties in utilizing a wrong address for the union does not constitute an acquiescence by the union to utilizing the Superintendent's Office as an official mailing address." Id. The Union claims that "at no time has the union received service by the agency, the Authority or by any arbitrator of any notice, pleading, or decision at the Superintendent's Office address." Id. at 5.
The Union further asserts that the labor relations consultant who signed for receipt of the disapproval was not authorized to receive notice of Agency-head review, as only the Union President is authorized to receive such notices. In any event, the Union argues that service in this case was untimely. According to the Union, this case is "controlled by" Antilles Consolidated Education Ass'n, 28 FLRA 118 (1987) (Antilles), in which the Authority found untimely a disapproval that "the agency head mailed . . . to the Superintendent's Office at Fort Buchanan within the 30 days," and which "was subsequently hand delivered by an employee of the Superintendent's Office to the union after the 30 days [had] expired." Response at 2. The Union adds that, unlike [ v62 p149 ] Antilles, the disapproval here "was not even hand served, albeit late, on an authorized union official." Id.
B. Agency's Position
The Agency asserts that the disapproval was properly and timely served on the Union President when the disapproval was deposited in the U.S. mail. The Agency states that, for security purposes, since November 2002, all official incoming correspondence was required to be sent to the Agency's official mailing address at 218 Brook Street, as directed by the U.S. Postal Service and the Department of the Army at Fort Buchanan. The Agency explains that "the address on the envelope was not the Puerto Rico District Superintendent's address [but rather] the official mailing address that the Ft. Buchanan postal service requires to be used for all official mail coming to Ft. Buchanan[.]" Statement of Position at 5. The Agency also states that, since 1997, and in conformance with a contractually agreed-upon provision, a practice developed and was accepted by the Union whereby mail addressed to the Union at the base would be delivered to the Union utilizing the Agency's courier service. [n6] The Agency states that use of the courier service in this instance was "an extension of the postal mail service[,]" and that the Agency timely served the disapproval when it deposited the certified letter in the U.S. mail within the 30-day statutory review period." Id. at 5, 10-11.
The Agency also argues that this case is distinguishable from Antilles. The Agency states that, here, the Agency served the disapproval by certified mail and that "acceptance of the letter" by the individual who signed for it "is construed as acting on the Union's behalf." Id. at 11. In addition, the Agency claims that the Union was not harmed as a result of the "alleged service deficiency." Reply at 3.
IV. Analysis and Conclusions
Consistent with Authority precedent, discussed below, we find that service of the Agency head's disapproval was untimely. Furthermore, consistent with Authority precedent, in the face of an untimely disapproval, the collective bargaining agreement became effective, subject to the provisions of § 7114(c)(3) of the Statute.
A. Relevant Authority precedent
In National Education. Ass'n, Overseas Education Ass'n, Fort Rucker Education Ass'n, 53 FLRA 941 (1997) (Fort Rucker), the Authority discussed the elements of proper service of an agency-head disapproval. As relevant, the Authority stated that:
Proper service by mail on a party under section 2429.27 begins with the date on which the document is delivered to the Postal Service with an address that allows for delivery to be perfected. American Federation of Government Employees, Local 2 and U.S. Department of the Army, Military Traffic Management Command, Falls Church, Virginia, 48 FLRA 1394, 1396 (1994) (Military Traffic Management Command). Proof of service is by a return post office receipt or other written receipt executed by the party served. See, e.g., U.S. Department of the Treasury, Bureau of Engraving and Printing and International Plate Printers, Die Stampers and Engravers Union, Washington Plate Printers Union, Local 2, 44 FLRA 926, 934 (1992). The burden of providing the correct address for service of a document is on the party that is to be served with that document. See, e.g., U.S. Department of Veterans Affairs, Medical Center, Bronx, New York and American Federation of Government Employees, Local 1168, 45 FLRA 789, 790 (1992). The question of whether the Agency head's disapproval was properly served thus becomes whether the disapproval was mailed to an address that allowed "for delivery to be perfected." Military Traffic Management Command, 48 FLRA at 1396. [ [n7] ]
53 FLRA 942-43.
The facts in Fort Rucker reveal that the disapproval was addressed to the union and served on the union in care of the school superintendent at Fort Rucker. In finding that the disapproval was timely and properly served, the Authority noted that the parties' agreement specifically contemplated that mail would be sent to the union at the school. The Authority also noted that the union did not claim either that the disapproval was not properly addressed or that the union had [ v62 p150 ] received mail or had been served with documents at any other address. Therefore, the Authority found in Fort Rucker that "service was perfected by depositing the correctly addressed disapproval in the mail within 30 days after the execution of the agreement." Fort Rucker, 53 FLRA at 943.
The Authority distinguished Fort Rucker from its earlier decision in Antilles, 28 FLRA 118, in which, as noted above, the Authority found untimely an agency-head disapproval that was mailed to the school superintendent, rather than the union, and then subsequently hand-delivered to the union president more than 30 days after the execution of the agreement. The Authority stated in Fort Rucker that the disapproval in Antilles was not timely served on the union because service was not perfected until hand delivery of the disapproval to the union president and that, as a result, the parties' agreement became effective and binding under the provisions of § 7114(c) (3) of the Statute.
B. Application of Authority precedent
As stated earlier, in order to be considered timely, the Agency head's disapproval was required to be served on the Union no later than Friday, August 12. Under the Authority's Regulations, service may be accomplished by the U.S. Postal Service or by personal delivery. There is no dispute that the date on which the disapproval was delivered to and signed for by a Union consultant was August 18, well beyond the service due date of August 12. As such, whether or not the consultant was authorized to receive notices of disapproval on the Union's behalf, if the August 18 delivery constituted service of the disapproval, then it was untimely. See, e.g., NFFE, Locals 642, 1911, 1966 and 2024, 38 FLRA 503, 504 (1990) (Authority rejected claim that disapproval could only be served "on specified Union officials" where personal service had been made on three of four locals involved in bargaining). There is also no dispute that the disapproval was postmarked on August 11. If that is the date of service, then the disapproval is timely.
Under Fort Rucker, in order for August 11 to constitute the date of service of the disapproval, the address used must have allowed delivery to be "perfected." The Authority did not specify what it meant by the phrase "allow delivery to be perfected" in Fort Rucker. We note, however, that in Antilles, the disapproval was mailed to the superintendent and would otherwise have been timely served, but for the fact that it was misaddressed. Consistent with Antilles, therefore, we find that the phrase "allow delivery to be perfected" requires that, in demonstrating timely service by mail based on the date that the document is postmarked, the document must be correctly addressed so that it is delivered by mail to the intended recipient.
For the reasons that follow, we conclude that delivery was not perfected--so as to permit the postmark date to constitute the service date--because the Agency head's disapproval was not sent to the proper address. Although the Union eventually received the disapproval on August 18, the issue here is one of proper service, not receipt. See, e.g., AFGE, Local 2182, AFL-CIO, 26 FLRA 600, 601 (1987) ("It is `service' and not `receipt' which is the significant event in measuring the timeliness of an agency's disapproval.").
In this regard, the Agency claims, with supporting affidavits, that, since November 2002, all official correspondence was required to be sent to the Brook Street address, and that the Agency has received notices sent to the Union at that address and then called the Union for delivery instructions or delivered the notices to the Union at its office. See affidavits of Vega, Rodriguez and Ortiz. However, evidence submitted by the Union contradicts the Agency's claim. Specifically, the Union provided copies of official correspondence sent by various Agency officials subsequent to November 2002 and addressed to the Union at its post office box. This correspondence includes a memo from the Office of the General Counsel, Department of Defense Education Activity, Pensacola, Florida, regarding ground rules for contract negotiations, as well as letters from DDESS in Peachtree City, Georgia, inviting the Union's comments on a particular matter prior to formal impact and implementation bargaining and seeking the Union's review on a proposed instruction. Exhibits C, D, and E, attached to the Union's Response. It is also noteworthy that the service sheet accompanying the Agency head's disapproval in this case listed the Union's post office box address, even though the envelope containing the disapproval was addressed differently.
In addition, the Union has supplied a document sent to the Union by the Department of Defense, Civilian Personnel Management Service Field Advisory Services Division, subsequent to November 2002, at its base post office box. This office is the same that earlier sent the disapproval to the Union at the Brook Street address and now claims that documents can only be served at that address. This establishes that, contrary to the Agency's claim, all official correspondence has not been sent to the Brook Street address since November 2002. Although, as the Union concedes, mail may have occasionally been misaddressed to the Superintendent's Office and then forwarded to the union by the activity, this does not establish that the Union utilized the Superintendent's [ v62 p151 ] Office as an official mailing address. Consequently, consistent with the principle articulated in Fort Rucker, the Union has met its burden of establishing its correct mailing address, and because the disapproval in this case was misaddressed, the postmark date does not constitute the service date. As such, the disapproval was untimely.
In sum, for the reasons set forth above, we find that the Agency head's disapproval was not properly served on the Union and that the petition for review should be dismissed. Consistent with § 7114(c)(3) of the Statute, "the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation."
The petition for review is dismissed.
File 1: Authority's Decision in 62
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 62 FLRA No. 39 - Authority's Decision
Footnote # 2 for 62 FLRA No. 39 - Authority's Decision
The Union's Response to the Agency's Statement of Position includes documents that the Union also included in a supplemental submission that was filed before the post-petition conference and that is opposed by the Agency on the grounds that it fails to comply with various procedural requirements. As the documents are properly before the Authority pursuant to the Response to the Statement of Position, we consider them as such and do not accept the supplemental submission. Further, it is unnecessary to resolve the Union's request, at the post-petition conference, that the Authority hold a hearing if its motion to file the supplemental submission, containing the document subsequently submitted with the Response to the Statement of Position, was denied.
Footnote # 3 for 62 FLRA No. 39 - Authority's Decision
(c)(1) An agreement between an agency and an exclusive representative shall be subject to approval by the head of the agency.
(2) The head of the agency shall approve the agreement within 30 days from the date the agreement is executed ....
(3) If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation.
Footnote # 4 for 62 FLRA No. 39 - Authority's Decision
DDESS P.R. District
218 Brook Street
Fort Buchanan, P.R. 00934
Footnote # 5 for 62 FLRA No. 39 - Authority's Decision
Footnote # 6 for 62 FLRA No. 39 - Authority's Decision
The Agency references Article 11, Section j, of the parties' agreement, which provides, in relevant part, as follows: "The Association may utilize the Employer's courier system." Statement of Position at 12.
Footnote # 7 for 62 FLRA No. 39 - Authority's Decision
Military Traffic Management Command involved the issue of the timeliness of exceptions to an arbitration award. The Authority found that the award was mailed in an envelope that was not deliverable and that "proper service of the award ... began with the date on which the award was delivered to the Postal Service with an address that allowed for delivery to be perfected." 48 FLRA at 1396.