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58 FLRA No. 64
UNITED STATES
DEPARTMENT OF THE AIR FORCE,
913TH AIR WING
WILLOW GROVE AIR RESERVE STATION
WILLOW GROVE, PENNSYLVANIA
(Respondent)
and
NATIONAL ASSOCIATION
OF GOVERNMENTEMPLOYEES,
LOCAL R3-32
SEIU, AFL-CIO
(Charging Party/Union)
BN-CA-00252
BN-CA-00354
(57 FLRA 852 (2002))
_____
DECISION AND ORDER ON MOTION
FOR RECONSIDERATION
January 13, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on a motion for reconsideration filed by the General Counsel (GC). The GC seeks reconsideration of the Authority's decision in 57 FLRA 852 (2002) not to consider the GC's opposition to the Respondent's exceptions. The GC requests that the Authority consider the opposition and reinstate the Judge's status quo ante remedy with regard to the change in staffing levels. The Respondent filed an opposition to the GC's motion.
For the following reasons, we grant the GC's motion for reconsideration and consider the GC's opposition to the Respondent's exceptions. However, in considering the GC's opposition, we deny the GC's request to reinstate the Judge's status quo ante remedy.
II. Judge's Decision
The Judge found that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to send notice of changes in conditions of employment to the Union president, as requested. The Judge also found that the Respondent violated § 7116(a)(1) and (5) by failing to provide adequate notice and an opportunity to bargain over two changes, one concerning duties and the other involving staffing requirements for security guards. As a remedy, the Judge recommended, among other things, a return to the status quo ante with regard to the change in the staffing requirement.
III. Authority's Decision in 57 FLRA 852
The Authority adopted the Judge's findings and conclusions that the Respondent violated § 7116(a)(1) and (5) by refusing to provide notice of changes in working conditions to the Union's president and by implementing changes in the security guards' duties and staffing requirements without providing notice and an opportunity to bargain. However, the Authority (Member Pope dissenting) set aside the Judge's determination that a status quo ante remedy was warranted with regard to the change in the staffing requirement.
The Authority did not consider the GC's opposition to the Respondent's exceptions. As more fully described in the Authority's decision, the GC's initial submission did not comply with a procedural requirement of the Authority's Regulations. As a result, the Authority's Case Control Office (CCO) directed the GC to comply with the procedural requirement by a specific date. CCO records indicated that the GC failed to comply with the order by the date specified. Accordingly, the opposition was not considered by the Authority in rendering its decision.
IV. GC's Motion for Reconsideration
The GC asserts that extraordinary circumstances exist such that the Authority should take into account the GC's opposition and reconsider its decision. The GC maintains that it timely complied with the Authority's procedural order. In support, the GC provided a certified mail receipt and other evidence which, according to the GC, demonstrates that the GC timely complied with the Authority's order. Therefore, the GC requests that the Authority grant its motion for reconsideration, and upon consideration of GC's opposition, reinstate the Judge's status quo ante remedy with regard to the change in staffing levels.
V. Respondent's Opposition to GC's Motion
The Respondent maintains that the GC's motion should be denied. The Respondent notes that a party seeking reconsideration bears a heavy burden of establishing extraordinary circumstances as set forth in United States Dep't of the Air Force, 375th Combat Support [ v58 p278 ] Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995) (Scott Air Force Base). The Respondent maintains that the GC has not specified which extraordinary circumstance articulated in Scott Air Force Base provides a basis for reconsideration. In addition, the Respondent maintains that the GC's opposition does not present any information that was not previously considered by the Authority in rendering its decision not to order a status quo ante remedy.
VI. Analysis and Conclusions
Under § 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. Scott Air Force Base, 50 FLRA at 85-87. In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that the Authority erred in its remedial order, process, conclusion of law or factual finding.
The GC has established that it timely complied with the Authority's procedural order and that the Authority improperly failed to consider that opposition. Thus, we find that extraordinary circumstances have been established and that the Authority erred in its process by not considering an opposition that had been timely filed. See United States Dep't of Veterans Affairs, Wash. D.C., 48 FLRA 1400, 1401 (1993) (Authority found that its inadvertent error in not considering Respondent's opposition that was timely filed established extraordinary circumstances warranting reconsideration of prior decision).
Nonetheless, having considered the GC's opposition, we deny the GC's request to reinstate the Judge's status quo ante remedy in relation to the change in staffing levels. In its opposition, the GC reiterates its position in its brief before the Judge that the imposition of a status quo ante remedy is warranted and appropriate in the circumstances of this case. Further, the GC argues that the Judge's recommended status quo ante remedy should be affirmed based on the application of the criteria in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI).
In concluding that a status quo ante remedy was inappropriate, the Authority considered the FCI criteria. We find that nothing in the GC's opposition changes the analysis and ultimate conclusion of the majority of the Authority that a status quo ante remedy was inappropriate in this case. As such, we deny the GC's request to reinstate the Judge's status quo ante remedy. [n1]
VII. Order
We grant the GC's motion and consider the GC's opposition. Further, having considered the GC's opposition, we deny the GC's request to reinstate the Judge's status quo ante remedy.
Footnote # 1 for 58 FLRA No. 64 - Authority's Decision
Member Pope reaffirms her dissent in 57 FLRA 852. However, in light of the majority's decision in that case, Member Pope joins in denying the GC's request that status quo ante relief be ordered.