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

[ v39 p1537 ]
The decision of the Authority follows:

39 FlRA No. 135












(39 FLRA No. 82 (1991))


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 C