[ v30 p70 ]
30:0070(13)NG
The decision of the Authority follows:
30 FLRA NO. 13
30 FLRA 70
12 NOV 1987
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1815
Union
and
ARMY AVIATION CENTER
FORT RUCKER, ALABAMA
Agency
Case No. O-NG-1210
(28 FLRA No. 152)
ORDER DENYING REQUEST FOR RECONSIDERATION
I. Statement of the Case
This matter is before the Authority because of the Union's
request for reconsideration of the Authority's Decision and Order
in the above-captioned case. No opposition has been filed by the
Agency.
II. Background
The American Federation of Government Employees (Union)
filed a petition for review dated November 15, 1985, of an agency
head's disapproval of portions of a locally executed agreement.
The Union asserted that the agency head's decision had not been
served on it in a timely manner and that the locally executed
agreement was in effect. In support, it stated that the agreement
had been executed locally on October 4, 1985, and the agency
head's disapproval was not served upon it until November 5,
1985--32 days later.
In its statement of position the Agency disputed this
assertion, stating that it had deposited the disapproval in the
U.S. mail (certified) on November 1, 1985. In support, it
provided a copy of a return receipt which indicated that mailing
date. It also noted that the Authority had held that an agency
head's disapproval was properly served when it was deposited in
certified mail on or before the thirtieth day after local
execution of the agreement.
Subsequent to the filing of the Agency's statement of
position, the Union requested and was granted a 3-week extension
of time in which to file its response. As reasons for its
request, it cited the holidays and the complexity of the issues
in the case. The Union also submitted its response to the
Agency's statement of position. In its response, it argued that
the Agency's assertion that service of the agency head's
disapproval occurred when it was deposited in the mail was
incorrect. Rather, the Union contended that under a correct
interpretation of Authority regulations, the date of service
should be the date the disapproval was received by the Union.
Thus, while not disputing the Agency's representation as to
mailing date, it contended that the agency head's disapproval was
untimely served based on date of receipt by the Union. It cited
several Authority decisions which it asserted supported its
argument. The Union further requested that it be given a further
opportunity to present arguments as to the negotiability of the
proposals in dispute if the agency head's disapproval was held to
have been timely served.
In our decision in this case, we noted that under section
2429.27(b) and (d) of the Authority's regulations, the date of
service of the Agency head's disapproval was the date it was
deposited in the mail. Accordingly, we held that the Agency
head's disapproval had been timely served on the Union. We also
stated that under section 2424.7 of the Authority's regulations
the full response of an exclusive representative to an agency's
statement of position must be filed within 15 days of receipt of
that statement. We noted the earlier extension which had been
granted the Union because of, among other things, the complexity
of the issues in the case and, secondly, the Union had not
demonstrated why it should be granted a further extension to file
additional arguments.
III. Request for Reconsideration
A. The Union's Contentions
The Union requests reconsideration of our denial of its
request for the opportunity to submit additional argument in the
case. In support of its request for reconsideration, the Union
asserts that its request for the opportunity to submit arguments
as to the negotiability of the proposals was not a "per se
request for an extension of time." Rather, the request was
conditioned on an Authority ruling that the agency head's
disapproval was timely served. The Union contends that
absent a ruling on this procedural issue, arguing the merits
could have been a futility on its part. It also contends that the
Authority was remiss in not promptly notifying it of the decision
to deny its request. The Union further argues that our decision
is inconsistent with the Authority's treatment of similar
requests made by various agencies. It also contends that the
Authority has misapplied its regulations for processing
negotiability issues in cases involving agency head disapprovals
of agreements. It contends that disputes relating to disapprovals
should be litigated under unfair labor practice procedures rather
than under negotiability procedures.
B. Analysis and Conclusions
The Authority's regulations which govern negotiability
proceedings do not provide for bifurcated proceedings such as the
Union sought. Moreover, the Authority's disposition of the
procedural matter raised by the Union in its reply brief was
based on established precedent. The Authority's rules and
regulations specifically define date of service or date served as
the date the matter served is deposited in the U.S. mail or is
delivered in person. 5 C.F.R. 2429.27(d). This definition is one
of long standing. See, for example, 44 Fed. Reg. 44740, 44772-73
(1979); 45 Fed. Reg. 3482, 3519-20 (1980); National Federation of
Federal Employees, Local 1445 and Alabama Air National Guard, 12
FLRA 64 (1983); American Federation of Government Employees, AFL
- CIO, Local 900 and Department of the Army, Office of the
Adjutant General, U.S. Army Reserve Components Personnel and
Administrative Center, St. Louis, Missouri, 18 FLRA 40 at n.1
(1985), reversed as to other matters in our decision on remand in
American Federation of Government Employees, AFL - CIO, Local 900
and Department of the Army, Office of the Adjutant General, U.S.
Army Reserve Components Personnel and Administrative Center, St.
Louis, Missouri, 25 FLRA 952 (1987).
We reject the Union's contentions that it was accorded
disparate treatment. As to those examples which it cites, we note
the following. In American Federation of Government Employees,
AFL - CIO, Council 214 and U.S. Marine Corps, Marine Corps
Logistics Base, Nonappropriated Fund Instrumentality, Albany,
Georgia, 29 FLRA No. 126 (1987), the Agency requested to
supplement its statement of position in order to address
the issue of whether certain proposals were negotiable as
appropriate arrangements under section 7106(b)(3). The Agency's
request was limited to those proposals about which the Union had
raised that particular issue for the first time in its reply
brief. It sought to submit arguments in order to fulfill its
responsibilities under the Authority's decision in National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24 (1986). In those circumstances, the
Authority granted the Agency's request and provided the Union
with an opportunity to address the Agency's supplemental
submission.
The Union does not state any specifics in conjunction with
its reference to American Federation of Government Employees, AFL
- CIO, Local 1546 and Department of the Army, Sharpe Army Depot,
Lathrop, California, Case No. O-NG-1015 (25 FLRA 958 (1987)).
Our examination of the case file reveals two matters which may
fit within the Union's stated objections. First, the Agency
submitted a corrected page of its statement of position, stating
that its original submission erroneously contained a page from
its first draft rather than the final version. Allowing a party
to make such a correction is not an indication of disparate
treatment. Second, the Authority granted a request by the Office
of Personnel Management (OPM) to file an amicus curiae brief. The
Union was allowed an opportunity to respond and its request for
an extension of time was granted.
Another of the Union's objections pertains to treatment
accorded OPM. The Union cites no specifics to support its
allegation that the Authority has allowed OPM to submit arguments
after time limits have expired. If the Union is referring to
situations where OPM has requested to file an amicus curiae
brief, we point out that requests to file these briefs are not
governed by section 2424.6 of the regulations, which establishes
time limits for the filing of the agency's statement of position
in a negotiability case. Rather, requests to file amicus curiae
briefs are governed by section 2429.9 of the regulations.
These and the Union's other reasons submitted in support of
its request constitute nothing more than disagreement with the
Authority's procedures, regulations and application of those
regulations. They do not establish "extraordinary circumstances"
within the meaning of section 2429.17. In view of the failure to
establish the existence of extraordinary circumstances,
we deny the Union's request for reconsideration.
Issued, Washington, D.C.,November 12, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY