39:1537(135)NG - - NFFE, Local 284 and DOD, Naval Air Engineering Center, Lakehurst, NJ - - 1991 FLRAdec NG - - v39 p1537



[ v39 p1537 ]
39:1537(135)NG
The decision of the Authority follows:


39 FlRA No. 135

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 284

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NAVAL AIR ENGINEERING CENTER

LAKEHURST, NEW JERSEY

(Agency)

0-NG-1873

(39 FLRA No. 82 (1991))

ORDER DENYING REQUEST FOR RECONSIDERATION

March 28, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Union's request for reconsideration of the Authority's Order in 39 FLRA No. 82. The Agency did not file an opposition to the request. Because the Union fails to establish that extraordinary circumstances exist which would warrant reconsideration of the order, we will deny the request.

II. The Order in 39 FLRA No. 82

In 39 FLRA No. 82, the Authority dismissed the Union's appeal of a proposal permitting employees, at Government expense, to make 1 phone call home upon their arrival at their temporary duty station (TDY) and 1 phone call home when there is a change in their travel orders, if the calls were for a period not longer than 5 minutes. The Union's petition for review of the proposal was dated September 28, 1990.

The Agency head had disapproved a substantively similar provision on June 27, 1990. Because the dispute concerned a proposal that was not substantively changed from the provision that had been disapproved by the Agency head under section 7114(c), the Authority found that the effect of the Union's September 28, 1990, petition was to seek review of the provision that had been disapproved by the Agency head on June 27, 1990.

The Authority pointed out that section 2424.3 of our Regulations requires that a negotiability petition must be filed within 15 days after service on the Union of the Agency's allegation of nonnegotiability. The Authority noted that if the allegation is served by mail, 5 days are added to the 15-day filing period.

The Authority determined that a Union appeal of the Agency head's June 27, 1990, disapproval of the telephone usage provision would have been due not later than July 17, 1990. However, because the Union's appeal of the substantively identical proposal was not filed until September 28, 1990, the Authority found that the petition for review was untimely and dismissed the appeal.

III. The Union's Request for Reconsideration

The Union contends that there are extraordinary circumstances warranting reconsideration of the Order in 39 FLRA No. 82. The Union argues that although the Agency head's disapproval was dated June 27, 1990, local management initiated further discussions on the issue of telephone usage at Government expense for TDY employees. The Union asserts that it met and bargained in good faith with management concerning the issue on several occasions beginning with a July 30, 1990, meeting with management and ending with bargaining on September 13, 1990. Therefore, the Union claims that it was either intentionally misled by the Agency concerning the issue of telephone usage or that the Agency's position was misrepresented, because the local management representative did not have the authority to bargain in good faith. The Union asserts that it "would have welcomed the opportunity to file a negotiability appeal in June, 1990 if local management had not been willing to negotiate the issue further." Request for Reconsideration at 1.

The Union also contends that its September 14, 1990, proposal is substantially changed from the provision disapproved by the Agency head on June 27, 1990. The Union states that a 5-minute limit on telephone calls was added to the September 14, 1990, proposal in response to a concern raised by management regarding the cost of unlimited personal calls. The Union concludes that the September 14, 1990, proposal is different from the provision disapproved on June 27, 1990, because it specifically limits to 5 minutes the length of the phone call that an employee is permitted to make, thereby restricting the cost of the phone calls. The Union also asserts that the Agency head disapproval of the provision did not address negotiability claims but instead was concerned only with the fact that Agency regulations did not permit such phone calls.

IV. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Union has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of the Order in 39 FLRA No. 82.

As to the Union's contentions regarding discussions with the Agency on the issue of telephone usage that began on July 30, 1990, after the time limits for an appeal of the Agency head's June 27, 1990, disapproval had expired, we note that, where the proposals are substantively the same, the fact that the parties discussed the matter between the initial allegation of nonnegotiability and the subsequent allegation does not affect the untimeliness of the appeal of the subsequent allegation. See American Federation of Government Employees, AFL-CIO, Local 2303 v. FLRA, 815 F.2d 718, 722-23 (D.C. Cir. 1987) (AFGE, Local 2303).

In AFGE, Local 2303, the court affirmed the Authority's dismissal for untimeliness of a union's negotiability appeal involving a second proposal that the Authority found was not substantively different from an earlier proposal. In so doing, the court rejected the union's argument that the Authority's decision "impedes the give-and-take necessary for effective collective bargaining." Id. at 723. The court stated that "[t]he latitude the union seeks in appealing might, as a practical matter, facilitate bargaining in some instances, but it does not comport with the scheme Congress established in Section 7117(c) to ensure speedy resolution of negotiability disputes." Id. See also American Federation of Government Employees, AFL-CIO, Local 1786 and U.S. Marine Corps, Marine Corps Development and Education Command, Quantico, Virginia, 26 FLRA 184 (1987) (Marine Corps Development and Education Command).

The court's decision in AFGE, Local 2303 addressed a situation in which the parties were engaged in bargaining, but had not reached any agreement. In contrast, the case before us involves an agency head's disapproval under section 7114(c) of the Statute of a locally-negotiated collective bargaining agreement provision. However, we believe that the rationale of the court's decision is equally applicable here. As the court stated: "The procedure governing appeals of nonnegotiability allegations obviously demands some judgment as to whether serial proposals are identical or distinct, for otherwise the time limits of Section 7117(c) would become meaningless." 815 F.2d at 723.

We believe that the purposes of the Statute would not be served by applying different procedural standards for negotiability appeals arising from agency-head disapprovals of collective bargaining agreement provisions from those applied to bargaining proposals. Further, we note that nothing precludes a union, following an agency head disapproval of a collective bargaining agreement provision, from filing a timely negotiability appeal as to that disapproval while at the same time continuing negotiations in an effort to resolve the matter. If those further negotiations proved successful, the appeal could then be withdrawn. On the other hand, if the negotiations were unsuccessful or did not result in any substantive changes of the parties' positions, the negotiability dispute could be resolved more expeditiously because it would already be pending before the Authority. Thus, we do not believe that our practice either deprives unions of the ability to file timely negotiability appeals or discourages the give-and-take of the collective bargaining process.

Where, as here, the later proposal contains only insubstantial modifications of the earlier proposal, the appeal of the later proposal constitutes an untimely attempt to seek review of the earlier proposal. See Marine Corps Development and Education Command, 26 FLRA at 186. See also AFGE, Local 2303. In this case, the provision disapproved by the Agency head on June 27, 1990 required the Agency to pay for personal phone calls made by employees under the circumstances specified and the Union's September 14, 1990, proposal required the Agency to pay for personal phone calls of 5 minutes or less in those same circumstances. Consequently, the fact that the September 14, 1990, proposal contained a 5-minute limitation for such phone calls, added as a result of discussions with the Agency, did not change the substance of the proposal's requirement that personal phone calls be made at Government expense or affect the timeliness of the appeal. As noted above, where intervening discussions between the parties do not change the substance of a proposal previously alleged to be nonnegotiable, a subsequent appeal of that proposal will be found to be untimely. See id., 815 F.2d at 723.

The Union indicates that, by adding a 5-minute limitation, it was responding to the grounds on which the Agency alleged that the proposal was nonnegotiable. In AFGE, Local 2303, 815 F.2d at 721 n.18, the court noted that where a union revises a proposal to eliminate the portion that was in dispute, an allegation by the Agency that the subsequent proposal was nonnegotiable on the same grounds as the previous proposal would necessitate further analysis. However, the court also noted that, where the revision of the proposal did not affect the nature of the dispute, the Authority could treat a proposal that abridged or recombined elements of a prior proposal as a resubmission of that prior proposal.

In this case, the Agency disapproved the provision of the agreement because the provision was contrary to an Agency regulation that prohibited the Agency from paying for personal phone calls regardless of their length. The Union's alteration of its subsequent proposal in response to the Agency's concerns regarding the costs of personal phone calls did not affect the nature of the dispute because the dispositive negotiability issued remained the same: whether the Agency's regulation precluded negotiations over the proposal. In reaching this conclusion, we express no opinion as to the merits of the Agency's allegation of nonnegotiability; we only note that the alteration of the proposal did not affect the basis on which the Agency alleged the proposal to be nonnegotiable.

The Union's arguments, therefore, constitute nothing more than disagreement with, and an attempt to relitigate, the merits of the order in 39 FLRA No. 82 and do not establish the extraordinary circumstances necessary for reconsideration. See, for exam