[ 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 (1985), and a decision by the
Authority adopting without precedential significance (because no
exceptions were filed) a decision by an Administrative Law Judge in
Department of the Navy, Washington, D.C. and Portsmouth Naval Shipyard,
Portsmouth, New Hampshire and Federal Employees Metal Trades Council,
Case No. 1-CA-40285 (1985). Both of these decisions concerned the
amount of travel expenses to be advanced to bargaining-unit employees.
They were issued before the applicable FTRs were amended and, therefore,
do not affect the negotiability of the Union's proposal. Further, the
Union has not shown how the provisions in its existing collective
bargaining agreement are relevant to our decision, which resulted from a
petition for review filed by the Union in 1984 after mid-term
negotiations over the Agency's regulation.
V. Conclusion
For the reasons stated in our analysis, we waive the time limit for
filing a motion for reconsideration of our decision in 24 FLRA No. 24,
and grant the Agency's motion. The Union's proposal to maintain the
amount of travel advances at 90 percent of estimated expenses is
inconsistent with Government-wide regulations and is, therefore, not
negotiable.
VI. Order
The portion of the Order in our previous decision, 24 FLRA No. 24,
concerning the Union's proposal to maintain the amount of travel
advances at 90 percent of estimated expenses is rescinded. That portion
of the Union's petition for review is dismissed.
Issued, Washington, D.C. April 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY