[ v58 p310 ]
58 FLRA No. 71
ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
(Union)
and
UNITED STATES
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
KANSAS NATIONAL GUARD
(Agency)
0-NG-2618
(57 FLRA 939(2002))
_____
ORDER DENYING MOTION
FOR RECONSIDERATION
January 23, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on the Union's motion for reconsideration of the Authority's decision in Ass'n of Civilian Technicians, Wichita Air Capitol Chapter, 57 FLRA 939 (2002) (Wichita Air Chapter). The Agency did not file an opposition to the Union's motion.
Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority order. For the following reasons, we conclude that the Union has not established that extraordinary circumstances exist, and we deny the Union's motion.
II. Decision in Wichita Air Chapter
In Wichita Air Chapter, the Authority found that the disputed proposal requires management officials to use certain terms -- and prohibits those officials from using other terms --in addressing unit employees while conducting labor-management relations. [n1] Therefore, according to the Authority, the proposal plainly establishes a job requirement applying only to management officials and directly determines the conditions of employment of management officials.
Applying Authority and judicial precedent holding that proposals purporting to directly determine the conditions of employment of managers and supervisors are outside the duty to bargain, the Authority found the proposal to be outside the duty to bargain. See Wichita Air Chapter, 57 FLRA at 941-42 (citing United States Dep't of the Navy, Naval Aviation Depot, Cherry Point, N.C., 952 F.2d 1434, 1441-43 (D.C. Cir. 1992)) (Cherry Point). In so doing, the Authority rejected the Union's assertion that the Authority's finding would invalidate all proposals establishing procedures to be observed by management, stating that its decision in NFFE, Local 1482, 45 FLRA 1132 (1992) demonstrates that this assertion is not correct. See Wichita Air Chapter, 57 FLRA at 941 (citing NFFE, Local 1482, 45 FLRA at 1136-38) (proposal establishing a methodology for selecting unit employees to serve as backups to absent supervisors did not directly determine management officials' conditions of employment and was not, therefore, outside the duty to bargain). The Authority also rejected the Union's request for severance on the basis that the Union did not demonstrate how the proposal would operate pursuant to § 2424.22(c) of the Authority's Regulations.
III. Union's Motion for Reconsideration
The Union argues that the decision warrants reconsideration because: (1) the Authority's decision on the merits is contrary to law; and (2) the Authority's denial of severance is contrary to law and "departs without explanation from past precedent." Motion for Reconsideration (Motion) at 1.
In support of its motion, the Union first contends that the instant proposal does not directly determine the conditions of employment of management officials within the meaning of Cherry Point. In this regard, the Union asserts that Cherry Point applies only to those proposals that directly implicate the employment relationship between managers and the agency, and not to those that involve the conduct of labor relations. The Union also contends that contrary to the Authority's reasoning in Wichita Air Chapter, Cherry Point does not render nonnegotiable all proposals, like the proposal here, that impose job requirements on managers or supervisors as a result of their assignment to act on the Agency's behalf in contractual matters concerning bargaining unit employees' conditions of employment. See Motion at 2-3 (citing ACT, Volunteer Chapter 103, 55 FLRA 562 (1999)). According to the Union, every proposal establishing either a § 7106(b)(2) procedure or [ v58 p311 ] § 7106(b)(3) appropriate arrangement which management officials will observe in exercising § 7106(a) management rights imposes a job requirement on management officials. Therefore, according to the Union, the proposal in the instant case would only be outside the duty to bargain under Cherry Point if it sought to give management officials a right to be called "Mr." or "Mrs." or Ms." when the Agency communicated with them.
The Union also objects to the Authority's refusal to grant its request to sever its proposal. The Union asserts that, "should the Authority believe that any legal issue applies differently to any" separate paragraph of the proposal, the Authority's denial of its request for severance is contrary to law and departs without explanation from past precedent. Motion at 6. In particular, the Union asserts that its request for severance is similar to the union's request in ACT, Tony Kempenich Mem'l, Chapter 21, 56 FLRA 526, 534 (2000), petition for review denied as to other matters, 269 F.3d 1119 (D.C. Cir. 2001) (ACT), which was granted. The Union asserts that each paragraph of the proposal and each part of paragraphs C and D present distinct factual circumstances and that the Authority departed from past precedent by denying severance. The Union contends that the operation of its severance request is "clearly explained by the unambiguous text of the proposal" and, therefore, the Union has sufficiently explained its entitlement to severance. Motion at 10.
IV. Analysis and Conclusions
Under § 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. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995). The Authority has identified limited situations in which extraordinary circumstances have been found to exist, including situations where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; or (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. See id. at 85-87. Extraordinary circumstances have also been found where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in rendering its decision. See id. at 87. Mere disagreement with the Authority or attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. See ACT, N.Y. State Council, 56 FLRA 868, 870 (2000).
A. The Authority's decision on the merits is not contrary to law.
The Union contends that the Authority has misinterpreted the court's decision in Cherry Point, because the principle that proposals are outside the duty to bargain if they determine the conditions of employment of management officials applies only to proposals that implicate the "`interests'" of supervisors or managers by regulating the "`terms of [the] relationship between the employer and [supervisors or managers],'" and not to proposals that involve the conduct of labor relations. Motion at 4 (quoting Cherry Point, 952 F.2d at 1441, 1440 (brackets in motion)). [n2] Contrary to the Union's contention, however, there is no support in the court's decision, or in any other authority cited by the Union, for a distinction between proposals that regulate the relationship of supervisors or managers and their employer and those proposals that relate to labor relations. Further, Cherry Point does not state or imply that there are two distinct categories of proposals that determine the conditions of employment of supervisors and managers. Instead, it distinguishes between proposals that "principally relate to the conditions of employment of bargaining unit personnel" and those that "regulate the conditions of employment" of managers and supervisors, id. at 1441, the distinction applied by the Authority here.
The Union next asserts that if the Authority finds this proposal outside the duty to bargain, then all proposals establishing procedures and arrangements to be observed by management officials would be outside the duty to bargain. The Authority rejected this same argument in Wichita Air Chapter, stating that the resolution of this case did not require that it address the "broad generalizations" made by the Union concerning the implications of this case on "all proposals establishing procedures" under the Federal Service Labor-Management Relations Statute (the Statute). Wichita Air Chapter, 57 FLRA at 941. Moreover, because the Union has specifically stated that the proposal at issue here does [ v58 p312 ] not constitute a procedure or an appropriate arrangement under § 7106(b)(2) or (3) of the Statute, we find it unnecessary to address the status of § 7106(b)(2) and (3) matters under Cherry Point. See Response to Statement of Position at 16. As this claim has been previously rejected by the Authority and the Union's argument is nothing more than an attempt to relitigate conclusions reached by the Authority in resolving this contention, we find that it does not establish extraordinary circumstances warranting reconsideration. See United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, 54 FLRA 9, 12-13 (1998).
In sum, we find that the Union has not demonstrated extraordinary circumstances warranting review of the Authority's decision on the merits.
B. The Authority's denial of severance is not contrary to law.
Under the Authority's current negotiability regulations, "[s]everance means the division of a proposal or provision into separate parts having independent meaning, for the purpose of determining whether any of the separate parts is within the duty to bargain." 5 C.F.R. 2424.2(h). As the Union acknowledges, severance is only used where a "legal issue applies differently to any paragraph or any part" of a proposal. Motion at 6.
Here, each of the four subparts of the Union's proposal contains the requirement that the Authority found to be outside the duty to bargain, the mandate that the employer use specific designated terms in addressing bargaining unit employees. The Union does not make any claim that there is a "separate part[]" of the proposal that would be within the duty to bargain, even if the decision is correct with respect to other parts of the proposal. 5 C.F.R. 2424.2(h). Therefore, even if the Union had satisfied the requirement of the regulation that it specify how the parts of the proposal would operate independently, there would be no basis to sever the proposal.
While it does not affect the appropriateness of severing this proposal, the Union is correct in its assertion that the specificity required of it in this case differs from the standard applied in an earlier case. See ACT, 56 FLRA at 534. In this case, the Authority applied its regulation, which requires that a party requesting severance "support its request with an explanation of how each severed portion of the proposal . . . would operate." Wichita Air Chapter, 57 FLRA at 941 (quoting 5 C.F.R. § 2424.22(c)). In ACT, the Authority granted the Union's request to sever a proposal without considering whether the union had made such a showing, consistent with its practice prior to the adoption of the revised regulations, even though the revised regulation applied.
Nevertheless, this does not provide a basis for reversing the Authority's decision denying the Union's request for severance. The analysis here is required by the Authority's revised regulations, which were published for notice and comment, see 63 Fed. Reg. 48130 (September 9, 1998), and failure to apply the newly adopted regulation in ACT does not foreclose the Authority from applying it here. [n3] Further, as explained above, severance is not appropriate in this case because the Union did not make any claim that there is a separate part of the proposal that would be within the duty to bargain. Therefore, permitting the Union to request severance with a showing similar to that made in ACT would not lead to a different outcome.
As such, we find that the Union has not demonstrated extraordinary circumstances warranting review of the Authority's decision on severance.
V. Order
The Union's motion for reconsideration is denied.
Appendix
Proposal
Terms of Address
A. Written communication in connection with any matter covered by Chapter 71 of Title 5, United States Code, by the employer to a bargaining unit employee who is a labor organization representative, will not, in addressing the labor representative, refer to military status or rank; the appropriate address will be "Mr." or "Mrs." or "Ms."
B. Oral communication in connection with any matter covered by Chapter 71 of Title 5, United States Code, by the employer to a bargaining unit employee who is a labor organization representative, who is on official time under 5 U.S.C. § 7131, and who is not wearing a military uniform, will not, in addressing the labor representative, refer to military status or rank; the appropriate address will be "Mr." or "Mrs." or "Ms."
C. Written communication -- in connection with a grievance or arbitration under the negotiated grievance [ v58 p313 ] procedure; Federal Labor Relations Authority, Federal Mediation and Conciliation Service, or Federal Service Impasses Panel proceeding; adverse action; or other dispute concerning a condition of employment -- by the employer to a bargaining unit employee who is a party or witness in the matter, will not, in addressing the employee, refer to military status or rank; the appropriate address will be "Mr." or "Mrs." or "Ms."
D. Oral communication -- in connection with a grievance or arbitration under the negotiated grievance procedure; Federal Labor Relations Authority, Federal Mediation and Conciliation Service, or Federal Service Impasses Panel proceeding; adverse action; or other dispute concerning a condition of employment -- by the employer to a bargaining unit employee who is a party or witness in the matter, who is on official time under 5 U.S.C. § 7131, and who is not wearing a military uniform, will not, in addressing the employee, refer to military status or rank; the appropriate address will be "Mr." or "Mrs." or "Ms."
Footnote # 1 for 58 FLRA No. 71 - Authority's Decision
The disputed proposal is set forth in the Appendix to this decision.
Footnote # 2 for 58 FLRA No. 71 - Authority's Decision
The Union does not quote the court's decision accurately. In this regard, the court stated that, in the quoted statement, it was addressing the "terms of a relationship between the employer and a third party." Cherry Point, 952 F.2d at 1440, 1442 (emphasis added). The Union changed, through brackets, the wording "third party" to "supervisors or managers." This is significant because the court specifically found that supervisors excluded from the bargaining unit did not constitute a "third party group[] about whose conditions of employment a union might seek to negotiate." Id. at 1442.
Footnote # 3 for 58 FLRA No. 71 - Authority's Decision
The additional decisions that the Union relies on were decided prior to the adoption of the new regulations, and do not relate to the Authority's current severance standards.