American Federation of Government Employees, Local 1836 (Union) and United States Department of the Air Force, Eielson Air Force Base, Alaska (Agency)

[ v62 p369 ]

62 FLRA No. 68

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1836
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
EIELSON AIR FORCE BASE, ALASKA
(Agency)

0-NG-2887

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

March 27, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal. The Agency filed a statement of position and the Union filed a response.

      For the following reasons, we find that the proposal is outside the duty to bargain. Accordingly, we dismiss the petition for review.

II.      Preliminary Matter

      In an order dated June 9, 2006, [n*]  after the Union had withdrawn a related unfair labor practice charge, the Authority resumed processing this case and directed the Agency to file its statement of position no later than July 10. The Authority advised that the Union's response must be filed in accordance with the time limits set forth in 5 C.F.R. § 2424.25(b). According to the record before the Authority, the Agency filed its statement of position with the Authority on July 10 and served a copy on the Union. The Union received a copy of the Agency's statement of position on July 10.

      In an order dated July 18, the Authority notified the Agency that it had failed to submit the required four copies of its statement of position and ordered "the Agency [to] file with the Authority, by August 1, 2006, four complete copies of the statement of position, including attachments." July 18 Order at 1 (emphasis in original). On August 14, the Union filed its response with the Authority to the Agency's statement of position.

      Because the Union's response to the Agency's statement of position appeared to be untimely, the Authority issued an order to the Union to show cause why its response should be considered. The Union filed a timely response to the order.

      In response to the Show Cause Order, the Union claims that it filed its response on the "good faith belie[f]" that the Authority's July 18 order to the Agency reset the filing period for the Union's response to begin on August 1 and that consequently, its response was timely filed on August 14. Response to Show Cause Order. The Union maintains that the July 18 order "directed the [A]gency to resubmit their statement of position[.]" Id. The Union asserts that it reasonably believed that the Authority had reset the filing period because otherwise the Agency could have gained an unfair advantage by altering its statement of position on the basis of the Union's response which would have had to have been served on the Agency prior to August 1. The Union also claims that it based its "presumption" that the time period had been reset by the July 18 order on the Authority's June 9 order establishing a new date for the Agency to file its statement of position. Id.

      To be timely filed, a union must file its response to an agency's statement of position with the Authority within 15 days after the date the union receives a copy of the statement of position. § 2424.25(b). As set forth above, the Union received a copy of the statement of position on July 10. Consequently, to have been timely filed under § 2424.25(b), the Union's response must have been filed with the Authority no later than July 25. As also set forth above, the Union filed its response with the Authority on August 14.

      For the following reasons, the Union's reliance on the June 9 and July 18 orders of the Authority as resetting the filing period for its response to the Agency's statement of position fails to show good cause for considering its response to the Agency's statement of position.

      The Union's reliance on the Authority's June 9 order is misplaced. The June 9 order was issued after [ v62 p370 ] the Union withdrew a related unfair labor practice charge, which withdrawal allowed processing of the negotiability case to resume. The June 9 order involved a jurisdictional issue that had stayed the filing of the Agency's statement of position. Consequently, in resuming the processing of this case, the Authority specified the date by which the Agency's statement of position must be filed.

      The Union's reliance on the July 18 as resetting the filing period for its response to the Agency's statement of position also fails to show good cause for considering its response to the Agency's statement of position. In this respect, the time limit for the Union's filing of its response was triggered by the Union's receipt of the Agency's statement of position. § 2424.25(b); NFFE Local 2015, 53 FLRA 967, 970 (1997). In addition, the order did not direct the Agency to resubmit its statement of position, as claimed by the Union. Instead, the order directed the Agency to file with the Authority four copies of the statement it had already submitted. The order also did not permit the Agency to revise the statement filed to address the Union's response had the Union timely filed its response, as further claimed by the Union.

      Accordingly, the Union's response to the Agency's statement of position was untimely filed, and we will not consider the response in resolving this case. See AFGE Local 1658, 61 FLRA 80, 81 (2005) (Authority refused to consider an untimely opposition to exceptions to an arbitrator's award because the party's reliance on an Authority order directing the filing of the proper number of copies of the exceptions as tolling the time limit to file its opposition failed to show good cause for considering its opposition); AFGE Nat'l Council of EEOC Locals No. 216, 57 FLRA 680, 680 n.* (2002) (extraordinary circumstances were not established under § 2429.23(b) when the moving party's interpretation of an Authority order as extending the party's time to file an opposition to exceptions to an arbitrator's award was not justifiable).

III.      Background

      The Agency notified the Union that as a result of a change in the Code of Federal Regulations to restrict the use of cell phones while operating motor vehicles on federal installations, the Pacific Air Forces commander (PACAF) had revised the regulation supervising motor vehicle traffic on Eielson Air Force Base (AFI 31-218(l)). Under the revision, cell phone use while driving on Eielson Air Force Base is prohibited unless using a hands-free device, and the penalty for violations of the prohibition is the loss of on-base driving privileges for 30 days.

IV.      Proposal

      The Union proposed the following penalties for violations of the prohibition of cell phone use: "[F]irst violation shall result in a 7-day suspension of on-base driving privileges, second violation within a 12-month period shall result in a 30[-day] suspension of on-base driving privileges, and third violation within a 12-month period shall result in a 6-month suspension of on-base driving privileges." Petition for Review at 2.

V.      Meaning of the Proposal

      According to the Union, the proposal would require that the Agency use the same penalties for cell phone infractions as it does for seat belt infractions and is intended to work the same by providing for progressive penalties. The Union asserts that the application of progressively severe penalties deters violations of the policy, but does not overly punish an employee for a first violation. The Union's explanation of the proposal comports with the plain language of the proposal. Consequently, we adopt the Union's explanation. NEA, OEA, Laurel Bay Teacher Ass'n, 51 FLRA 733, 737-38 (1996).

VI.      Positions of the Parties

A.      Agency

      The Agency's position is that the proposal is outside the duty to bargain because it affects both its right to determine its internal security practices under § 7106(a)(1) of the Statute and its right to discipline employees under § 7106(a)(2)(A).

      As to its right to determine its internal security practices, the Agency asserts that the right includes the right to take actions and establish practices that secure or safeguard personnel, physical property, and operations against internal or external risks. The Agency maintains that "decisions pertaining to what actions should be taken to enforce policies to ensure the safety and security at [Eielson Air Force Base] are . . . tied to decision regarding the level of risks drivers and pedestrians on the installation should be subject to." Statement of Position at 5.

      The Agency notes that the Pacific Air Forces commander, whose command includes Eielson Air Force Base, is responsible for motor vehicle traffic supervision and that the objectives of such supervision include assuring safe and efficient movement of personnel and vehicles and reducing deaths, injuries, and property [ v62 p371 ] damage from traffic accidents. The Agency maintains that the commander revised the regulation supervising motor vehicle traffic, as it pertains to the use of cell phones while operating a motor vehicle, to ensure the welfare, safety, and security of drivers on PACAF installations. Consequently, the Agency claims that the revision to the regulation was an exercise of management's right to determine its internal security practices under § 7106(a)(1) because it was part of a plan to safeguard personnel and physical property and that the Union's proposal affects the exercise of that right.

      As to its right to discipline, the Agency asserts that the right includes the right to determine a particular disciplinary action to impose for misconduct. The Agency claims that the proposal affects the right by preventing the Agency from determining what sanction is appropriate for violations of the restriction on use of cell phones while operating a motor vehicle.

B.      Union

      In its petition for review, the Union asserts that the proposal is intended to work the same as the provision that the parties negotiated for failing to use seat belts. The Union argues that the proposal provides for progressive penalties and that the application of progressively severe penalties deters violations of the policy, but does not overly punish an employee for a first violation.

VII.      Analysis and Conclusions

      The Union asserts that this proposal is intended to work like the provision the parties negotiated for penalties for failing to use seat belts by providing for progressive penalties. To the extent the Union is claiming that the proposal in this case is within the duty to bargain because the Agency agreed to a similar provision regarding seat belts, the claim provides no basis for finding the proposal within the duty to bargain. The Authority has held that an agency's previous agreement to a similar proposal is not relevant to a decision of whether a disputed proposal is within the duty to bargain. AFGE, AFL-CIO, Local 644, 27 FLRA 375 (1987) (proposal 3).

      In addition, when a union offers no argument or precedent to dispute an agency's claim that a proposal affects the exercise of management's rights and offers no argument or precedent to support that the proposal constitutes an exception to management's rights, the Authority will find that the proposal is outside the duty to bargain. NATCA, 62 FLRA 337, 340 (2008); see also AFGE Local 1712, 62 FLRA 15, 16 (2007) (finding union's failure to address agency's management rights arguments a concession under 5 C.F.R. § 2424.32). In this case, the Union does not argue in its petition for review that the proposal is within the duty to bargain as an exception to management's rights. In addition, we have not considered the Union's response to the Agency's statement of position because it was untimely filed. Consequently, the application of NATCA and AFGE Local 1712 and the Authority's Regulation results in the Union's concession that the proposal affects both the Agency's right to determine its internal security practices and to take disciplinary action against employees. As the Union concedes these arguments raised by the Agency and does not otherwise argue that the proposal is within the duty to bargain as an exception to management's rights, the proposal is outside the duty to bargain.

      Accordingly, we dismiss the petition for review.

VIII.      Order

      The petition for review is dismissed.

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