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51 FLRA No. 106

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1301

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

(Agency)

0-NG-2260

_____

ORDER DENYING MOTION FOR RECONSIDERATION

May 30, 1996

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Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of the Authority's Order, issued on October 5, 1995, dismissing the Union's petition for review.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that the Agency has failed to establish that the Authority's decision should be reconsidered and reversed. Accordingly, we deny the Agency's motion.

II. Order Dismissing Petition for Review

The Agency disapproved a locally negotiated supplemental agreement to the parties' national agreement pursuant to Article 9, section d, of the parties' national agreement.⁽¹⁾ Thereafter, the Union filed a petition for review with the Authority contesting the Agency's disapproval.

To determine whether the petition for review had been timely filed, the Authority issued an order requiring the parties to submit information regarding, among other things, service of the Agency's disapproval. In response thereto, the Agency stated that it had transmitted its disapproval of that supplemental agreement to the Union by facsimile (FAX), and the Agency moved that the Union's petition for review be dismissed as being untimely filed with the Authority.

The Authority determined that, as a FAX transmission does not constitute service within the meaning of section 2429.27(b) of the Authority's Regulations, the Agency had not properly served its disapproval within 30 days after the supplemental agreement was submitted for review and approval. Accordingly, the Authority: (1) dismissed the Union's petition for review on the ground that, as the Agency failed to properly and timely serve its disapproval on the Union, the Union's petition for review did not raise a dispute cognizable under section 7117 of the Federal Service Labor-Management Relations Statute (the Statute) and section 2424.1 of the Authority's Regulations; and (2) dismissed as moot the Agency motion to dismiss the Union's petition for review as untimely filed. The Authority noted that, although the entire supplemental agreement became effective, provisions in that agreement may not be enforceable, if they are contrary to the Statute or other applicable law, rule or regulation.

III. Motion for Reconsideration ⁽²⁾

The Agency raises three arguments in support of its motion for reconsideration. First, relying on U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84 (1995) (Scott Air Force Base), it argues that reconsideration is warranted because the question of whether a FAX transmission meets service requirements was raised sua sponte by the Authority in its October 5 dismissal rather than being asserted by the Union. According to the Agency, the Authority should grant reconsideration because it was not provided an opportunity to address the issue.

Second, the Agency claims that the Authority's dismissal is inconsistent with section 7114(c)(4) of the Statute because it ignores the fact that the "facsimile communication was a contractually required service" of the disapproval.⁽³⁾ Motion at 9 (emphasis in original). According to the Agency, application of the Authority's regulations was "improper because the parties had negotiated their own procedures . . . ." Id. at 5 (emphasis omitted).

Finally, the Agency contends that neither the Authority's Regulations governing negotiability appeals, 5 C.F.R. § 2424.1 et seq., nor the Regulation establishing general service requirements, 5 C.F.R. § 2429.27(b), applies in this case. According to the Agency, the process of reviewing local supplemental agreements to higher level agreements is reserved by section 7114(c)(4) to the parties to determine.

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration of a final decision or order of the Authority "bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action." Scott Air Force Base, 50 FLRA at 85. In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist, including situations where a moving party has established that the Authority erred in its remedial order, process, conclusions of law, factual finding or "when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in rendering its decision." Id. at 87 (footnote omitted).

With regard to the Agency's first argument, the issue of service of the Agency's disapproval was not raised by the Union. However, the issue also was not raised for the first time in the Authority's October 5 dismissal. Rather, the issue was raised, in effect, by the Authority's Order dated August 31, 1995, directing the parties to provide documentation showing the date the parties' supplemental agreement was executed and the date the Agency's disapproval was served on the Union.

In this regard, the time limit for filing a petition for review challenging an agency head's disapproval of a negotiated agreement is triggered by the service of the disapproval on the union. It is well established that if an agency does not timely and properly serve its disapproval of an agreement on the union, the agreement automatically goes into effect and there is no dispute that may be addressed by the Authority under section 7117 of the Statute. See American Federation of Government Employees, National Mint Council and U.S. Department of the Treasury, Bureau of the Mint, San Francisco, California, 41 FLRA 1004, 1010 (1991) (Bureau of the Mint); American Federation of Government Employees, National Veterans Affairs Council and U.S. Department of Veterans Affairs, Veterans Health Services and Research Administration, Washington, D.C., 40 FLRA 195, 200 (1991) (Veterans Health Services); National Federation of Federal Employees, Local 1862 and Department of Health, Education and Welfare, Public Health Service, Indian Health Service, Phoenix, Arizona, 3 FLRA 182 (1980). Accordingly, to determine whether the petition for review was properly before the Authority, it was necessary to determine the date of service of the Agency's disapproval.

In the Authority's Order, the Authority noted that any time limit established for disapproval of the local supplemental agreement under section 7114(c)(4) of the Statute would supplant the time limit established in section 7114(c)(2) for other agreements. The Authority also stated that, if a different time limit had not been established, then the 30-day time limit in section 7114(c)(2) would be applied. Under well established Authority precedent the method of service of an agency head's disapproval is integral to a determination of the timeliness of that disapproval. See Bureau of the Mint; Veterans Health Services. Consequently, as the Authority's order raised the issue of service, the Agency was on notice of the Authority's requirements for service and it could have provided its rationale for transmitting its disapproval to the Union by FAX in responding to the Order.

However, because the issue of the method of service of the disapproval was raised only implicitly prior to the Authority's final order dismissing the Union's petition for review, we will address on the merits the Agency's second and third arguments objecting to application of the Authority's regulation regarding service.

With regard to the Agency's argument that the dismissal is inconsistent with the parties' agreement that a FAX disapproval was permitted, apart from the Agency's bare assertion, there is no basis in the record on which to conclude that the parties agreed to define "service" as including FAX transmission. Indeed, the Agency's assertions in this regard are inconsistent. The Agency has asserted in this proceeding both that FAX service was not precluded by the parties' agreement, Motion at 3, and that FAX service was "contractually required." Motion at 9 (emphasis in original). Insofar as the Agency is asserting that the parties have agreed to permit FAX service, there is no provision cited or apparent that evidences such agreement. In fact, the Agency stated specifically in its response to the Authority's August 31 Order that the agreement contained no requirements regarding the method of service.

With regard to the Agency's argument that the Authority's Regulations establishing general service requirements do not apply in this case, it is well established that the parties may prescribe their own time limits for review and approval of local supplemental agreements under section 7114(c)(4) of the Statute. See National Treasury Employees Union, Chapter 52 and Internal Revenue Service, Austin District, 23 FLRA 720 (1986) (IRS, Austin District). See also National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 49 FLRA 874, 891 (1994). However, it is also well established that, if a higher-level agreement or agency regulation does not prescribe a different time limit, then the 30-day time limit in section 7114(c)(2) applies. IRS, Austin District. No reason is argued or apparent to reach a different conclusion as to the method of service of disapproval.⁽⁴⁾ Accordingly, as the parties' master agreement does not prescribe methods of service, there is no basis for concluding that application of the Authority's regulatory requirements was erroneous.

Based on the foregoing, we find that the Agency has failed to establish extraordinary circumstances warranting reconsideration and reversal of the Authority's October 5, 1995, Order.⁽⁵⁾

V. Order

The Agency's motion for reconsideration is denied.

APPENDIX

Article 9, section d, of the parties' agreement provides, in pertinent part, as follows:

ARTICLE 9 - NEGOTIATIONS AT THE LOCAL LEVEL

. . . .

Section d. Once an agreement has been reached at the local level, it shall be reduced in writing and signed by the local parties . . . . A copy of the signed and dated proposed agreement shall be forwarded to the Labor-Management Relations Section by local management and another copy shall be forwarded by the local union to its regional vice president. . . .

The parties at the national level shall have 30 days, from the date that the proposed agreement was signed, to independently review the agreement and determine if the proposed agreement complies with the provisions of this Agreement and applicable laws and regulations.

The parties at the national level will independently notify their counterparts at the local level of the results of their reviews before the expiration of the 30 day time limit. The reviewing parties at the national level will serve on each other copies of their reviews as they are sent to the local level. At the end of the 30 day review period, the local supplemental agreement will go into effect, except for those provisions which have been found by either party to be in conflict with this Agreement or applicable laws or regulations. Such conflicting provisions shall be stricken.

If the local parties renegotiate stricken provisions, such renegotiated provisions must be submitted for review on the same terms as the original proposed supplemental agreement. Disputes as to whether a matter is improper for inclusion in a supplemental agreement shall be resolved as follows:

1. matters rejected solely as violating the Master Agreement shall be resolved through arbitration;

2. matters rejected solely as violating law or government-wide regulations shall be submitted to the Federal Labor Relations Authority for resolution as a negotiability dispute; or

3. matters rejected as violating both the Master Agreement and law or government-wide regulation shall first be submitted to arbitration to resolve contract issues. When the contract questions are resolved, any questions of negotiability under law or government-wide regulation shall be submitted to the FLRA for resolution.

If there is a disagreement between the parties at the local level on whether a proposal is in conflict with the Master Agreement, they must seek guidance from their respective parties at the national level before referring the matter to a third party. However, the parties at the national level may, by mutual agreement, discuss and resolve any differences in the review results of a particular supplemental agreement in lieu of going to arbitration. Provisions which are stricken mutually by the parties at the national level may not be taken to arbitration.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 9, section d, of the parties' agreement is set forth, in pertinent part, in the appendix to this decision.

2. The Union did not file an opposition to the motion for reconsideration.

3. Section 7114(c) of the Statute provides, in pertinent part:

(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency.

(2) The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter . . . .

(3) If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding . . . subject to the provisions of this chapter . . . .

(4) A local agreement subject to a national . . . agreement . . . shall be approved under the procedures of the controlling agreement or, if none, under regulations prescribed by the agency.

4. In fact, in its motion that the Authority dismiss the Union's petition for review as untimely, the Agency itself relied on the same regulations it now contends do not apply.

5. As the disapproval was not properly and timely served, the supplemental agreement went into effect, subject to the provisions of the Statute and other law, rule, and regulation. IRS, Austin District, 23 FLRA at 722.

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