26:0184(21)NG - AFGE Local 1786 and Marine Corps, Marine Corps and Development and Education Command, Quantico, Virginia -- 1987 FLRAdec NG



[ v26 p184 ]
26:0184(21)NG
The decision of the Authority follows:


 26 FLRA No. 21
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1786
 Union
 
 and
 
 U.S. MARINE CORPS, MARINE CORPS 
 DEVELOPMENT AND EDUCATION COMMAND 
 QUANTICO, VIRGINIA
 Agency
 
                                            Case No. 0-NG-1230
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute.  For the reasons stated below, it is
 concluded that the proposals do not differ materially from proposals in
 an appeal previously found to have been untimely filed, and the petition
 for review therefore must be dismissed.
 
                              I.  Background
 
    This case is related to the proceedings in American Federation of
 Government Employees, AFL-CIO, Local 1786 and U.S. Marine Corps, Marine
 Corps Development Command, Quantico, Virginia, 19 FLRA No. 32 (1985).
 In that case, the Union had appealed the Agency's June 21, 1985
 allegation of nonnegotiability as to four proposals.  The proposals
 related to sick and annual leave for temporary and intermittent
 employees, accrual of annual leave by employees drawing compensation for
 on-the-job injuries, and funeral leave for all employees.  /1/ Because
 the Union's petition for review was not filed within 15 days of the date
 of service on the Union of the Agency's allegation of nonnegotiability,
 the petition was untimely filed and was dismissed on that basis.
 American Federation of Government Employees, AFL-CIO, Local 1786 and
 U.S. Marine Corps, Marine Corps Development Command, Quantico, Virginia,
 19 FLRA No. 32 (1985).
 
    This case involves the same parties and four proposals which involve
 the same subject matters.  /2/ According to the Union, after the
 decision in 19 FLRA No. 32 was issued, the Union offered "similar but
 different" proposals.  Union Petition for Review at 2.  By letter of
 November 27, 1985, the Union requested the Agency's position on the
 negotiability of the "modified" proposals.  The Agency responded on
 December 20, 1985 and stated that the proposals "do not differ
 substantially from those proposed by the (Union in the previous appeal)
 . . . .  Our position on the negotiability of these issues remain(s) the
 same." Union Petition for Review, Attachment 4.  The Union filed a
 negotiability appeal on January 6, 1986.
 
                       II.  Positions of the Parties
 
    The Union contends that its letter of November 27, 1985, constitutes
 a separate request for a negotiability determination on "modified"
 proposals resulting from additional negotiation sessions.  It maintains
 that the proposals are not the same as in the previous appeal.  The
 Union also argues that the proposals concern conditions of employment
 because the subject matters have not been excluded from the scope of
 bargaining.  Finally, while the Union concedes that the proposals
 conflict with Department of Defense regulations it asserts that there is
 no compelling need for those regulations.
 
    The Agency contends that the Union's petition for review does not
 differ in any meaningful degree from its petition in Marine Corps
 Development Command, Quantico, Virginia, and therefore must be dismissed
 as untimely.  The Agency also argues that the proposals are
 nonnegotiable because they (1) pertain to fringe benefits and are not
 conditions of employment and (2) conflict with provisions of the
 Agency's regulations for which a compelling need exists.  The Agency
 further requests that the Authority consolidate this case with other
 cases raising similar issues.
 
                      III.  Analysis and Conclusions
 
    The record shows that the proposals here on appeal reflect only
 insubstantial modifications of the proposals alleged by the Agency on
 June 21, 1985 to be nonnegotiable.  The proposals involve the same
 matters -- the accrual or use of sick, annual and administrative leave.
 Additionally, the language in both sets of proposals is virtually
 identical.  /3/ The modifications by the Union effected no changes in
 the substance of the proposals.  See American Federation of Government
 Employees, AFL-CIO, Local 2303 and Metropolitan Washington Airports,
 Federal Aviation Administration, U.S. Department of Transportation, 17
 FLRA 17, 18 (1985), petition for review filed sub nom. American
 Federation of Government Employees v. FLRA, No. 85-1248 (D.C. Cir. April
 25, 1985) (combination of various parts of proposals previously declared
 nonnegotiable did not constitute a change in the substance or language
 of the proposals).
 
    Since the record demonstrates that the modifications in language did
 not alter the substance of the proposals involved in the Union's
 previous negotiability appeal, the Union's petition in essence seeks
 review of the Agency's earlier allegation which the Agency provided to
 the Union on June 21, 1985.  Where a petition for review is filed
 "concerning an agency's allegation which is only a restatement of a
 prior allegation, and no changes in the substance or language of the
 proposal have been effectuated during the period between allegations,
 the petition seeks review of the earlier allegation." American
 Federation of Government Employees, AFL-CIO, Local 1336 and Department
 of Health and Human Services, Social Security Administration, 21 FLRA
 No. 1 (1986).  It must be concluded therefore that the substance of the
 dispute between the parties concerns the Agency's June 21, 1985
 allegation that the proposals are nonnegotiable.  That is, the Union's
 petition for review as to those proposals is simply an attempt to
 reinstate the appeal previously dismissed as untimely.  See Overseas
 Federation of Teachers and Department of Defense Dependents Schools,
 Mediterranean Region, 23 FLRA No. 70 (1986).  It follows that the
 Union's second appeal from that allegation is outside the time limits
 set forth in section 2424.3 of the Authority's Regulations and therefore
 untimely. /4/
 
                                   ORDER
 
    The Union's petition for review was untimely filed, and apart from
 other considerations, is hereby dismissed for that reason.
 
    For the Authority.
 
    Issued, Washington, D.C., March 13, 1987.
                                       /s/ Harold D. Kessler,
                                       Director, Case Management
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) See Appendix A to this decision for the text of the proposals
 which were the subject of the Agency's June 21, 1985 allegation of
 nonnegotiability.
 
    (2) See Appendix B for the text of the proposals which are the
 subject of the Agency's December 20, 1985 allegation of
 nonnegotiability.
 
    (3) Compare the proposals in Appendix A with the proposals in
 Appendix B.  Modifications to the language of the proposals are
 underscored for emphasis in Appendix B.
 
    (4) The Agency's request for consolidation of this case with other
 related cases is denied.  It is noted that the Authority issued its lead
 decision on the negotiability of pay and fringe matters in American
 Federation of Government Employees, AFL-CIO, Local 1897 and Department
 of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986),
 petition for review filed sub nom. Department of the Air Force, Eglin
 Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2, 1987).
 With respect to Proposal 4 in this petition for review, see American
 Federation of Government Employees, AFL-CIO, National Council of SSA
 Field Operations Locals and Social Security Administration, 25 FLRA No.
 50 (1987) (proposal 3 requiring administrative leave for
 funeral/bereavement purposes conflicts with Government-wide regulations
 governing leave).
 
 
                                APPENDIX A
 
    The following proposals were the subject of the Agency's June 21,
 1985 allegation of nonnegotiability:
 
                                Article XI
 
          Section 9.  Annual leave accrues from date of hire and is
       credited to regular full-time, regular part-time, temporary and
       intermittent employees' individual leave records upon completion
       of a ninety (90) calendar day qualifying period in which it was
       earned as follows:
 
          a.  Less than three (3) years service, 5% of the total hours in
       the basic work week.
 
          b.  Three (3) but less than fifteen (15) years, 7.5% of the
       total hours in the basic work week, except for the final bi-weekly
       period of the leave year, when it will accrue at the rate of 12.5%
       of the total hours in the basic work week.
 
          c.  Fifteen (15) years or more service, 10% of the total hours
       in the basic work week.
 
          Section 14.  Annual leave will continue to accrue to an
       eligible employee who is receiving benefits under the
       Longshoremen's and Harbor Worker's Compensation Act (on-the-job
       injury) if he/she is carried on the rolls of the Cognizant
       Employer in a leave without pay status.
 
          Section 16.  Sick leave will be credited to incumbents who are
       designated as regular full-time, regular part-time, temporary and
       intermittent employees.  There is no qualifying period for the
       crediting of sick leave for regular full-time or regular part-time
       employees.  For all temporary or intermittent employees, sick
       leave will accrue from the date of hire but will not be credited
       or used until the employee completes a 90 consecutive calendar day
       qualifying period.  Sick leave will be granted in accordance with
       the following provisions.  If the:
 
          a.  Employee is to receive medical, dental or optical
       examination or treatment;
 
          b.  Employee is incapacitated for the performance of duty by
       sickness, injury or pregnancy and confinement;
 
          c.  Employee's presence would jeopardize the health of others
       at his post of duty because of exposure to a contagious disease.
 
          Proposal 4.  Article XI
 
          Section 46:  In the event of a death of an immediate family
       member (mother, father, spouse, child), an employee may be granted
       up to three (3) days of administrative leave.  (This proposal was
       modified by deleting "brother, sister" from the parenthetical
       defining "immediate family member."
 
    (Except as noted for Proposal 4, the emphasis supplied denotes
 additional wording in the proposals which were the subject of the
 Agency's June 21, 1985 allegation of nonnegotiability.)
 
                                APPENDIX B