American Federation of Government Employees, Local 2776 and U.S. Department of Defense, Armed Forces Radio and Television Service Broadcast Center, Sun Valley, California (Authority decision, August 23, 1991)

Final FLRA decision. The Authority dismisses the union's negotiability petition because the agreement became effective without a timely served agency head disapproval. An aggrieved person may seek judicial review by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). The official release also includes an August 30 erratum correcting a sentence in the August 23 order.

Plain-English summary

The Armed Forces Broadcast Center and its union signed a labor agreement on May 6, 1991. The agency called and faxed a disapproval on June 5, but the record did not show service by certified mail or in person within the 30-day statutory period. The Authority held that the full agreement became effective and binding on June 6. It dismissed the union's negotiability petition because an untimely disapproval created no dispute about the effective agreement that it could decide. An erratum corrected the order's wording about that reason without changing the dismissal.

Decision snapshot

• Authority: Agency head agreement review under 5 U.S.C. § 7114(c)(2); service under 5 C.F.R. § 2429.27.
• Outcome: Negotiability petition dismissed; negotiated agreement became effective.
• Key point: A phone call and fax did not establish timely service of the agency head's disapproval under the Authority's then applicable service rules.

Full text (FLRA public release)

[ v41 p1292 ]

41:1292(100)NG

The decision of the Authority follows:

41 FLRA NO. 100
41 FLRA 1292
23 AUG 1991

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

ERRATA

August 30, 1991

The Authority's August 23, 1991, Order dismissing the Union's petition for review in the above-captioned case contained a typographical error. The 2nd paragraph on page 3 of the Authority's Order is revised to read:

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.

By copy of this Errata, a corrected copy of the Order is served on the parties.

For the Authority.

Alicia N. Columna
Director, Case Control Office

41 FLRA No. 100

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

ORDER DISMISSING PETITION FOR REVIEW

August 23, 1991

On July 8, 1991, 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 mail 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 the parties executed a collective bargaining agreement on May 6, 1991. On June 5, 1991, the Agency informed the Union by telephone and by facsimile transmission (FAX) that the agreement was disapproved. However, nothing in the record establishes that the disapproval was timely served on the Union. Accordingly, in the July 8th 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 8th Order by submitting a postmarked mail receipt or other written receipt executed by a party or person served with the Agency head's disapproval.

The Agency, in its response to the July 8th Order to Show Cause, argues that the facsimile transmission meets the requirements of 5 U.S.C. 7114(c). The Agency claims that because the Union acknowledges receipt of the FAXed copy of the Agency head disapproval, and the Union does not claim that it was harmed by the manner in which the Agency's notice of disapproval was served, the disapproval was served properly. In its response to the Authority's July 8th Order, the Union states that the disapproval was "not properly and timely served on the Union."

The Agency's arguments are misplaced. Although section 7114(c)(2) of the Statute does not specify the method of accomplishing service, the Authority has prescribed the form and method of accomplishing and establishing service in its Rules and Regulations. 5 C.F.R. 2429.27.

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 [PAGE 2] 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). 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 June 6, 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 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