American Federation of Government Employees, National Mint Council and U.S. Department of the Treasury, Bureau of the Mint, San Francisco, California (Authority decision, June 7, 1991)

Final FLRA decision. The Authority dismisses the union’s negotiability petition because the agency did not prove timely service of its agreement disapproval. An aggrieved person may seek judicial review of this final order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). A petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The Treasury Department disapproved a provision of a collective bargaining agreement after sending a fax to a local official. The parties disputed whether the disapproval had been personally delivered to the union within the required 30 days. After a show cause order, neither side supplied the required proof of service by certified mail or in person. The Authority concluded that the negotiated agreement became effective and binding, so the union’s petition did not raise a negotiability dispute it could review. It dismissed the petition.

Decision snapshot

• Authority: Agreement approval and negotiability under 5 U.S.C. §§ 7114(c)(2) and 7117.
• Outcome: Petition for negotiability review dismissed; agreement treated as effective and binding.
• Key point: A fax and conflicting declarations did not establish timely service of the agency head’s disapproval under the Authority’s rules.

Full text (FLRA public release)

[ v41 p220 ]

41:0220(20)NG

The decision of the Authority follows:

41 FLRA NO. 20
41 FLRA 220

07 JUN 1991

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL MINT COUNCIL (Union)

and

U.S. DEPARTMENT OF THE TREASURY
BUREAU OF THE MINT
SAN FRANCISCO, CALIFORNIA
(Agency)

0-NG-1826

ORDER DISMISSING PETITION FOR REVIEW

On July 26, 1990, the Authority issued an Order directing the parties to show cause why the Union's petition for review in the above-captioned case should not be dismissed 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).

Section 7114(c)(2) of the Statute provides that the head of an agency shall approve a collective bargaining agreement "within 30 days from the date the agreement is executed" if the agreement complies with applicable law and regulation. Any disapproval by an agency head must be served on the exclusive representative within the 30 days after the execution of the agreement. 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) (Social Security Administration). The Authority's Regulations provide two methods of service. Specifically, service of any document, including "documents and papers served by one party on another," must "be made by certified main or in person. 5 C.F.R. 2429.27(b). The date of service is the date a document is deposited in the mail or is delivered in person. 5 C.F.R. 2427.29(d). Proof of service consists of 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. Social Security Administration.

The record in this case indicates that on May 2, 1990, in an electronic facsimile transmission (fax) to a local Agency official, the Director of Human Resources Directorate of the Department of the Treasury on behalf of the Agency head, disapproved Section 3 of a collective bargaining agreement executed on April 4, 1990. The parties are in disagreement as to whether service of the Agency head disapproval was accomplished by means of personal delivery. Accordingly, in the July 26, 1990 Order to Show Cause, the Authority directed the parties to provide evidence of the date of service of the disapproval. In particular, the Authority indicated that the parties may comply with the July 26 Order by submitting a postmarked mail receipt, a return post office receipt, or other written receipt executed by a party or person served with the Agency head's disapproval.

The Union, in its response to the July 26 Order to Show Cause, requests that its petition for review be dismissed on the ground that the Agency head's disapproval was not served on the Union either by certified mail or in person as required by section 2429.27(b) of the Authority's Regulations. To support its position, the Union has submitted a declaration from the Union President of the Mint Counsel. The Union President states in pertinent part that the Secretary to the Superintendent of the Mint, "did not hand-carry ... or give me the disapproval facsimile".

The Agency, in its response to the July 26, Order to Show Cause, contends that the agency head disapproval was hand-delivered to the Union on May 2, 1990. In support of its position, the Agency has submitted the declaration of two of its employees, the Labor Relations Officer and the Secretary to the Superintendent of the Mint. The Labor Relations Officer states that she "faxed" the union's copy of the agency head review to
... and instructed the Secretary to the Superintendent to hand-carry the memorandum to the union. The Secretary to the Superintendent of the Mint states that she "gave him (Union President) the disapproval facsimile on May 2, 1990". The Agency also argues that "it is a well established presumption that Government officials act correctly, honestly, and in good faith". Agency response at 4.

The Agency further argues that "(t)he Statute does not specify any form or method of accomplishing service of the agency head's disapproval of an agreement." Consequently, the Agency contends, since both the Agency and the Union agree that the Union received the disapproval on May 2, 1990 and that the disapproval was in writing, the agency head's disapproval of an agreement, even though by facsimile transmission, meets the requirements of 5 U.S.C. 7114(c).

The Agency's arguments are misplaced. Although section 7114(c)(2) of the Statute does not specify form or method of accomplishing service, the Authority has prescribed the form and method of accomplishing and establishing servicing in its Rules and Regulations found at 5 C.F.R. 2429.27. As these matters are clearly set forth in the Authority's Regulations, the Agency's argument that Government officials are presumed to "act correctly, honestly, and in good faith" is not germane.

Neither party has responded to the Authority's Order with evidence that the Agency head's disapproval was served 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. See, for example, 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), request for reconsideration denied, 40 FLRA 195 (1991) (neither evidence of transmission of agency head disapproval by facsimile transmission (FAX) nor affidavits attesting to mail service within the 30-day period satisfied the requirements of section 2429.27(d) of the Authority's Regulations that documents and papers be served by certified mail or in person). See also National Federation of Federal Employees, Local 1332 and Department of the Army. Headquarters, U.S. Army Material Development and Readiness Command, 5 FLRA 599 (1981) (telephonic disapproval within the 30-day period did not constitute a disapproval within the meaning of section 7114(c) of the Statute). Consequently, the entire agreement, as negotiated and executed, became effective and binding on May 4, 1991. 1

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.

Accordingly, as the Union's petition for review does not meet the conditions for review under section 7117 of the Statute and section 2424.1 of the Authority's Regulations, it is dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office