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52 FLRA No. 99

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES DEPARTMENT OF AGRICULTURE

ANIMAL AND PLANT HEALTH INSPECTION SERVICE

PLANT PROTECTION AND QUARANTINE PROGRAM

SEATTLE, WASHINGTON

(Agency)

and

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES

(Union)

0-AR-2621

(51 FLRA 975 (1996))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

February 14, 1997

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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 Union's request for reconsideration of the Authority's decision in 51 FLRA 975 (1996) (Member Wasserman, concurring).⁽¹⁾ The Agency did not file an opposition to the request.

Section 2429.17 of the Authority's Regulations permits reconsideration of an Authority decision when a party establishes extraordinary circumstances. We conclude that the Union has not established extraordinary circumstances warranting reconsideration of 51 FLRA 975. Accordingly, we deny the Union's request.

II. Decision in 51 FLRA 975

The Authority's decision in 51 FLRA 975 was based on the Authority's decision in National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA 843, review denied, National Association of Agriculture Employees v. FLRA, No. 96-1106 (D.C. Cir. Dec. 20, 1996) (DOA). In DOA, the Authority relied on an advisory opinion of the Office of Personnel Management (OPM) and concluded that applicable law and regulations do not constrain an agency's ability to terminate, due to lack of work, a Sunday overtime shift before its scheduled end. In addition, the Authority concluded that employees could not be paid overtime compensation when they are released from work in a manner that does not comply with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121. The Authority also ruled that termination of such a shift without complying with those provisions would not constitute an unjustified or unwarranted personnel action under the Back Pay Act, 5 U.S.C. § 5596. In addition, the Authority ruled that termination of a Sunday overtime shift without complying with the Agency directives implementing section 610.121 similarly would not constitute an unjustified or unwarranted personnel action under the Back Pay Act because the Agency directives imposed the same scheduling requirements as section 610.121.

Based on DOA, the Authority concluded in 51 FLRA 975 that applicable law and regulations did not constrain the Agency's ability to terminate the grievants' Sunday overtime shifts and did not entitle the grievants to overtime compensation for hours not worked. In finding that the Agency directives implementing section 610.121 did not constrain the Agency, the Authority noted that the Arbitrator had found that the requirements of the Agency directives were the same as those of section 610.121 and that nothing in the record before the Authority suggested otherwise. In addition, the Authority ruled that the award of backpay was contrary to the Back Pay Act. Accordingly, the Authority set the award aside.

III. Union's Contentions

In its request for reconsideration, the Union contends that extraordinary circumstances exist that justify reconsideration. First, the Union argues that the OPM advisory opinion on which 51 FLRA 975 was predicated is "irrational." Request For Reconsideration at 2. Second, the Union argues that the Authority erroneously concluded that the Agency was not bound by its own directives, which, the Union claims, have the force of law. In addition, the Union asserts that the Authority unfairly resolved the issue of the effect of the directives because the Union never had an opportunity to address this issue. In its supplemental brief, the Union argues that the decision in National Association of Agriculture Employees v. FLRA is distinguishable because the termination of the grievants' shifts was different from the proposal involved in DOA. The Union requests that the Authority reopen the record to allow the parties to present evidence on this point. In addition, the Union reiterates that the decision in 51 FLRA 975 should be reversed because the Authority erroneously and unfairly concluded that the Agency was not bound by its own directives.

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration of an Authority decision bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 86-87 (1995) (Scott AFB) (identifying a limited number of situations in which extraordinary circumstances have been found to exist and holding that disagreement with the Authority's conclusions does not establish extraordinary circumstances).

We conclude that the Union's arguments disagree with the Authority's conclusions in 51 FLRA 975, particularly the conclusions that DOA supported the Authority's decision and that the Agency directives applied, but did not constrain the Agency. Accordingly, the Union's request has not established extraordinary circumstances warranting reconsideration of 51 FLRA 975. See Scott AFB, 50 FLRA at 87. In this regard, we stress that, in denying the Union's petition for review of DOA, the D.C. Circuit specifically held that the Authority properly deferred to OPM's advisory opinion. National Association of Agriculture Employees v. FLRA, Judgment at 1.

V. Order

The Union's request for reconsideration is denied.⁽²⁾

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

1. In addition, the Union requested that the Authority hold the decision and its request for reconsideration in abeyance pending the decision of the U.S. Court of Appeals for the D.C. Circuit on its petition for review in National Association of Agriculture Employees v. FLRA, No. 96-1106. The Authority granted the Union's request and afforded the Union an opportunity to file a supplemental brief after issuance of the court's decision. On December 20, 1996, the D.C. Circuit denied the Union's petition for review. The Union filed a supplemental brief addressing the effect of the court's decision on its request for reconsideration. The Agency did not file a response to the Union's brief.

2. In view of this decision, we deny the Union's request to reopen the record.

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