26:0854(100)NG - IFPTE, Local 12, and Navy, Puget Sound Naval Shipyard -- 1987 FLRAdec NG



[ v26 p854 ]
26:0854(100)NG
The decision of the Authority follows:


 26 FLRA No. 100
 
 INTERNATIONAL FEDERATION OF PROFESSIONAL 
 AND TECHNICAL ENGINEERS, LOCAL 12
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 PUGET SOUND NAVAL SHIPYARD
 
                                            Case No. 0-NG-1003 
                                             (24 FLRA No. 24)
 
             DECISION AND ORDER ON MOTION FOR RECONSIDERATION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on a motion filed by the Agency
 seeking reconsideration of our decision of November 21, 1986.  The Union
 opposes the Agency's motion.
 
    In our decision, we addressed the negotiability of a Union proposal
 that there be no changes in the Agency's practice regarding the payment
 of travel and per diem advances which existed prior to the issuance of
 proposed Shipyard Notice, NAVSHIPDPUGETNOTE 4650.  Among the changes in
 the Notice was a limitation on the amount of travel advances to 80
 percent of the estimated per diem and miscellaneous expenses.  Under the
 Union's proposal, travel advances would remain at 90 percent of those
 expenses.
 
    The Agency argued that (1) the Union's petition for review was
 deficient and should be dismissed because it failed to set forth a
 proposal which was sufficiently specific for the Authority to rule;  (2)
 the parties' negotiate over the matter;  and (3) the proposal was
 inconsistent with an Agency regulation for which a compelling need
 existed under section 2424.11(a) and (c) of the Authority's regulations.
  We rejected the Agency's first contention and found that the Union's
 proposal was specific enough for us to measure the proposal against the
 Agency's allegations.  We found no basis in the record for
 substantiating the Agency's second assertion and stated that the Agency
 could pursue the question of waiver in other appropriate proceedings.
 
    As for compelling need, the Agency claimed that its regulation (1)
 was essential within the meaning of section 2424.11(a) of our
 regulations because it would reduce the frequency of overpayments,
 thereby saving time and money;  and (2) implemented an essentially
 nondiscretionary mandate within the meaning of section 2424.11(c)
 because it was consistent with Congressional and Office of Management
 and Budget mandates for improvements in the administration of travel.
 In rejecting the first basis for compelling need, we found that the
 Agency had not indicated how its objectives could not be achieved
 through other means.  We rejected the second basis because the Agency
 had not established the existence of the kind of mandate it relied on or
 that such a mandate was essentially nondiscretionary.
 
    We found that the proposal was negotiable and ordered the Agency to
 bargain over it on request.
 
                    II.  The Motion for Reconsideration
 
    On February 2, 1987, the Agency filed a motion for reconsideration of
 the Authority's decision.  Recognizing that its motion "is beyond the
 time limit established by section 2429.17 of the Authority's
 regulations(,)" the Agency claims that extraordinary circumstances exist
 which make waiver of the time limit appropriate.  Agency Motion at 1.
 Specifically, the Agency claims that subsequent to its receipt of our
 decision, it was made aware of amendments to the Federal Travel
 Regulations (FTRs) made by the General Services Administration during
 the Pendency of the case before the Authority.  In the Agency's view,
 these amendments bar negotiations over the Union's proposal to maintain
 travel advances at 90 percent of estimated expenses.  The Agency claims
 that it expects to receive proposals similar to the Union's from many
 other labor organizations and in "the interest of avoiding unnecessary
 future litigation," we should waive the time limit for seeking
 reconsideration and find that the Union's proposal is nonnegotiable.
 Agency Motion at 3.  The Agency's motion addresses only the portion of
 the proposal concerning the amount of travel advances.
 
                   III.  Union's Position on the Motion
 
    The Union asserts that the Agency's motion should be denied as
 untimely filed.  It notes that under section 2429.17 of our regulations,
 a motion for reconsideration must be filed within 10 days after service
 of the Authority's decision and states that the "seventy three day delay
 must act as a self imposed bar" to the Agency's motion.  Union Response
 at 1.  The Union argues that there are no extraordinary circumstances
 justifying waiver of the time limit because the amendments to the FTRs
 were widely publicized prior to their implementation.  The Union also
 maintains that the Agency had "constructive knowledge" of the probable
 outcome of the case based on previous decisions of the Authority and the
 Federal Service Impasses Panel.  Union Response at 2.  Finally, the
 Union claims that the Agency's motion should be denied because (1) the
 case has been in process since May 1984;  and (2) the Union
 unsuccessfully attempted to negotiate for inclusion of its proposal in
 the parties' current collective bargaining agreement, which was in
 existence prior to the amendments to the FTRs and which does not expire
 until 1988.
 
                               IV.  Analysis
 
                     1.  Effect of Amended Regulations
 
    Effective July 1, 1986, the portions of the FTRs (41 CFR part 101-7)
 concerning travel advances were amended.  51 Fed. Reg. 19,660 et seq.
 Specifically, section 1.1-10.3(a) was amended to read as follows:
 
          The head of each agency . . . may advance through proper
       disbursing officers to any person entitled to per diem, mileage
       allowance, or subsistence expenses . . . any sums as may be deemed
       advisable considering the character and probable duration of the
       travel to be performed or the cost of the transportation to be
       paid by the employee.  However, the amount of the advance shall
       not exceed 80 percent of the minimum estimated expenses that the
       employee is expected to incur prior to reimbursement.  As a
       general rule . . . advances shall be held to a minimum and allowed
       only when circumstances indicate that an advance is warranted . .
       .
 
    The FTRs are Government-wide rules or regulations within the meaning
 of the Statute.  National Treasury Employees Union and Department of the
 Treasury, U.S. Customs Service, 21 FLRA No. 2, n.2, slip op. at 4
 (1986), petition for review filed sub nom. Department of the Treasury,
 U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. March 27, 1986);
 National Federation of Federal Employees, Local 29 and U.S. Army
 Engineer District, Kansas City, Missouri, 13 FLRA 23, 24 (1983).  As
 such, proposals which are inconsistent with the FTRs are outside the
 duty to bargain under section 7117 of the Statute.
 
    The Union's proposal to maintain travel advances at 90 percent of
 estimated expenses is inconsistent with section 1.1-10.3(a), which
 limits the amount of these advances to 80 percent of estimated expenses.
  Accordingly, the proposal is not negotiable.  In our previous decision,
 we ordered the Agency to bargain over the Union's proposal.  The issues
 before us now are whether (1) extraordinary circumstances exist within
 the meaning of section 2429.23(b) of our Regulations to waive the time
 limit for filing a motion for reconsideration, and (2) extraordinary
 circumstances exist within the meaning of section 2429.17 to reconsider
 our decision.
 
                         2.  Waiver of Time Limit
 
    We conclude that there are extraordinary circumstances under section
 2429.23(b) of our Regulations to waive the time limit for filing a
 motion for reconsideration.  Although the Union is correct in noting
 that the amendments were publicized before our decision was issued, the
 Union's petition for review and the parties' positions on that petition
 were filed before the regulations were amended.  The regulations are
 Government-wide within the meaning of section 7117 of the Statute and
 were in existence on the date of our decision.  They are dispositive,
 therefore, on the question of the negotiability of the Union's proposal.
  Although the parties should advise the Authority while a case is
 pending of any developments that would affect the outcome of the case,
 in the limited circumstances of this case, we conclude that it is
 appropriate to waive the time limit for filing a motion for
 reconsideration of the decision.
 
                            3.  Reconsideration
 
    We also conclude that there are extraordinary circumstances under
 section 2429.17 of our regulations to reconsider the decision.  The
 Union's proposal as it related to the amount of travel advances is
 inconsistent with a Government-wide regulation which was in existence on
 the date of our decision.  The order which we issued in this case thus
 required the Agency to bargain over a proposal which is not negotiable.
 That decision may affect negotiations between labor organizations and
 agencies other than the parties involved in this case.  As a result, our
 decision may result in unnecessary confusion and litigation.
 
    In opposing reconsideration, the Union references a decision by the
 Federal Service Impasses Panel in Department of the Navy, Norfolk Naval
 Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees
 Metal Trades Council, Case No. 84 FSIP 114 (19