[ 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
The following proposals are in dispute in this case:
Proposal 1. Article XI
Section 9: Annual leave accrues from date of hire for regular
full-time, regular part-time, and after 30 days to 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 (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 of service, 10% of the total
hours in the basic work week.
Proposal 2. Article XI
Section 14: Annual leave will continue to accrue for 90 days
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.
Proposal 3. Article XI
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 after 30 days from 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:
c. Employee's presence would jeopardize the health of others
at his post of duty because of exposure to a contagious disease.
Section 46. In the event of a death of an immediate family
member (mother, father, spouse, child, brother, sister), an
employee may be granted up to three (3) days of administrative
leave.