34:0855(142)NG - - Federal Firefighters Association, Local 58 and Air Force, Otis Air NG Base, MA - - 1990 FLRAdec NG - - v34 p855



[ v34 p855 ]
34:0855(142)NG
The decision of the Authority follows:


34 FLRA No. 142

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL FIREFIGHTERS ASSOCIATION

LOCAL 58

(Union)

and

DEPARTMENT OF THE AIR FORCE

OTIS AIR NATIONAL GUARD BASE

MASSACHUSETTS

(Agency)

0-NG-1572

(33 FLRA 225)

ORDER DENYING MOTION FOR RECONSIDERATION

February 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion of the Union seeking reconsideration of the Authority's October 19, 1988, dismissal of the Union's petition for review in Federal Firefighters Association, Local 58 and Department of Air Force, Otis Air National Guard, Massachusetts, 33 FLRA 225 (1988). For the reasons stated below, we deny the Union's motion for reconsideration.

II. Background

On July 26, 1988, the Union hand-delivered to the Authority a petition for review of negotiability issues. In its statement of position, the Agency argued that the Union's petition was untimely because it was filed more than 15 days after the Agency had served its allegations of nonnegotiability on the Union on June 24 and July 1, 1988. In its reply brief, the Union argued that its petition was timely. According to the Union, the Agency's service of its initial allegations of nonnegotiability on the Acting President of Local 58 was improper. The Union asserted that "the parties have agreed that notice must be given to [the Union's Executive Director] rather than to some other representative [sic] the Union." Union's Supplemental Submission at 1. The Union submitted a declaration from its Executive Director stating that "'[i]n accordance with the ground rules for negotiations between the parties, the parties have agreed that notification on nonnegotiable declarations by management must be to me.'" 33 FLRA at 226. The Agency argued that service on the Acting Union President on June 24 and July 1, 1988, constituted service on the Union.

In its dismissal of the Union's petition for review, the Authority stated that the parties' ground rules did not indicate which Union official had to be served with the Agency's allegation of nonnegotiability and that the Agency's service on June 24 and July 1 on the Acting Union President constituted service on the exclusive representative.

The Authority concluded that in order to be timely filed, the Union's petition for review of the Agency's allegations served on June 24 and July 1 had to be filed by July 11 and July 18, 1988, respectively. Because the Union's petition for review was hand delivered to the Authority on July 26, 1988, the Authority dismissed the petition as untimely.

III. Union's Motion for Reconsideration

The Union requests that the Authority reconsider its order dismissing the Union's petition for review and find that its petition was timely. According to the Union, because the ground rules are ambiguous as to which Union official must be served with nonnegotiability declarations, and because the declaration of the Union's Executive Director concerning the ground rules was unrebutted, an "issue of fact" has been created. Motion for Reconsideration at 1. The Union argues that the Authority's Regulations require that the Authority "decide the petition in the Union's favor or . . . conduct a hearing pursuant to 5 CFR 2424.9." Id. at 2.

IV. Analysis and Conclusion

Section 2429.17 of our Rules and Regulations (5 C.F.R. § 2429.17) permits a party that can establish "extraordinary circumstances" to move for reconsideration of a final decision and order of the Authority. For the following reasons, we conclude that the Union has not established "extraordinary circumstances" within the meaning of 5 C.F.R. § 2429.17.

In the Order Dismissing Petition for Review, the Authority concluded that there was "nothing in the ground rules that constitutes an explicit restriction on the Union official who could be served with the Agency's allegation of nonnegotiability." Order at 2. The Authority relied on Article 7, section 3 of the parties' ground rules, which provides: "If the negotiability issue is not resolved, a written allegation . . . will be provided to the Union." Id.

The Union argues that Article 7, section 3 is "ambiguous as to the person to receive notification" of allegations of nonnegotiability. Motion for Reconsideration at 1 (emphasis in original). We disagree. The fact that Article 7, section 3 is silent as to the person to receive an allegation of nonnegotiability does not lead us to conclude that it is ambiguous.

The parties used the term "Union" in other portions of the ground rules. For example, Article 7, section 3 also provides: "Only the written allegation may serve as the bases [sic] for an appeal by the Union[.]" Union's Supplemental Submission at 5. Similarly, Article 8, section 1 provides: "The Union will present the agreement package to its membership for ratification[.]" Id.

In other sections of the ground rules, however, the parties named specific Union officials. For example, Article 5, section 3 of the ground rules provides: "When agreement is reached . . . it shall be . . . signed by the Management Spokesperson and the Union Spokesperson." Id. at 3. Likewise, Article 5, section 5(c) provides that changes in the negotiation schedule "will be determined upon mutual consent of the parties' Chief Spokesperson[s]." Id.

The parties' use of both specific and general designations in the ground rules buttresses the Authority's previous conclusion that the ground rules do not require the Agency to serve a specific Union official with a declaration of nonnegotiability. Where the parties intended to specify that certain activities could only be undertaken by certain officials, they did so. They did not do so with respect to service of allegations of nonnegotiability and, in the circumstances of this case, we conclude that the absence of specificity does not create an ambiguity.

In addition, we note that the Agency served an appropriate Union official, the Acting Union President. In our view, this service constitutes service on the exclusive representative within the meaning of 5 C.F.R. § 2424.3.

We also reject the Union's argument that if the Authority does not decide the issue of timeliness in the Union's favor, the Authority should conduct a hearing. The Union relies on 5 C.F.R. § 2424.9, which states that "[a] hearing may be held, in the discretion of the Authority, before a determination is made under 5 U.S.C. 7117(b) or (c)." Because the Authority did not hold a hearing prior to dismissing the Union's petition, the Union argues that the Authority must reconsider its initial decision in that matter.

We note that 5 C.F.R. § 2424.9 provides that a hearing "may be held[.]" (Emphasis added.) Contrary to the Union's argument, 5 C.F.R. § 2424.9 does not require the Authority to hold a hearing before making a determination concerning the timeliness of a petition for review of an agency's allegation of nonnegotiability. Whether a hearing is held is within the Authority's discretion. The Authority has denied requests for hearings where the record contained sufficient evidence on which to base a reasoned decision. See, for example, American Federation of Government Employees, Council 214, AFL-CIO and Department of the Air Force, Air Force Logistics Command, 31 FLRA 1259, 1264 (1988); American Federation of Government Employees, Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, n.1 (1988), aff'd American Federation of Government Employees, Council 214 v. FLRA, No. 88-1234 (D.C. Cir. Dec. 30, 1988). We conclude that the Authority was not required to hold a hearing in this case.

In its motion for reconsideration, the Union makes the same arguments which the Authority considered in dismissing the Union's petition. The Union offers no additional evidence. The Union's repetition of its arguments does not establish extraordinary circumstances. Inasmuch as the Union has failed to establish extraordinary circumstances within the meaning of 5 C.F.R. § 2429.17, we deny the Union's motion for reconsideration.

Finally, we note that the Union was not required to respond to the Agency's written allegations of nonnegotiability because the Agency's allegations were unsolicited. Agency's Statement of Position at 3. When a union is served with an unsolicited allegation of nonnegotiability, a union may (1) attempt to reach agreement with the agency on the disputed matter, (2) submit a written request to the agency for another allegation and file a petition