United States Department Of Homeland Security Border And Transportation Security Directorate Bureau Of Customs And Border Protection Washington, D.C. (Respondent) And American Federation Of Government Employees National Border Patrol Council (Charging Party)
63 FLRA No. 171
FEDERAL LABOR RELATIONS AUTHORITY
UNITED STATES DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION SECURITY DIRECTORATE
BUREAU OF CUSTOMS AND BORDER PROTECTION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
(60 FLRA 943 (2005))
(63 FLRA 406 (2009))
ORDER DENYING MOTION FOR RECONSIDERATION
August 11, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This matter is before the Authority on the Respondent’s motion for reconsideration of the Authority’s decision in United States Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Washington, D.C., 63 FLRA 406 (2009) (Customs II). The Respondent also requests a stay of the decision, in part, in Customs II. The General Counsel (GC) and the Charging Party filed oppositions to the Respondent’s motion.
The Authority’s Regulations permit a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. 5 C.F.R. § 2429.17. For the reasons below, we conclude that the Respondent has failed to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Respondent’s motion for reconsideration.
II. Decision in Customs II
The decision in Customs II resulted from a remand from the United States Court of Appeals for the District of Columbia Circuit in AFGE, National Border Patrol Council v. FLRA, 446 F.3d 162 (D.C. Cir. 2006) (Nat’l Border Patrol). In Nat’l Border Patrol, the court set aside the Authority’s decision in United States Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Washington, D.C., 60 FLRA 943 (2005) (Customs I) and remanded the complaint for further proceedings.
In Customs II, the Authority concluded, as relevant here, that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by changing the number of hours of remedial firearms training without providing the Charging Party with notice and an opportunity to bargain over the impact and implementation of the change. To remedy the unfair labor practice (ULP), we directed, among other things, that the Respondent refrain from violating the Statute and post a notice “at all facilities where bargaining unit employees are assigned[.]” Custom II, 63 FLRA at 409.
III. Positions of the Parties
A. Respondent’s Motion for Reconsideration
The Respondent contends that the notice directed in Customs II is unwarranted and should be modified because of “new evidence of events that occurred” after the issuance of the Administrative Law Judge’s decision and the filing of pleadings in this case. Motion for Reconsideration at 1. As to its contention that the notice is unwarranted, the Respondent argues that the notice would confuse bargaining unit employees because it states that the Respondent violated the Statute when actually it was the Immigration and Nationalization Service (INS) that improperly refused to bargain. Motion for Reconsideration at 2, 5.  The Respondent also argues that the notice will mislead employees to believe that the notice pertains to current renegotiations on the issue of remedial firearms training. Id. at 6. Accordingly, the Respondent requests that the Authority modify the order in Customs II to delete the notice posting requirement.
In the alternative, the Respondent contends that the Authority should modify the notice to indicate that the INS, and not the Respondent, failed to bargain. Id. at 8. The Respondent also requests that the Authority confine the posting of the notice only to the training academy for Border Patrol trainees “because that is the location where the change occurred.” Id. In addition, the Respondent requests a stay of the posting of the notice until the Authority issues a decision on the Respondent’s motion for reconsideration. Id. at 10.
B. The GC’s Opposition
The GC contends that the Respondent has failed to establish extraordinary circumstances warranting reconsideration. The GC states that the Respondent, and not the INS, was named in the complaint. GC’s Opposition at 2. The GC also states that the notice ordered by the Authority in Customs II is identical, in relevant part, to the notice recommended by the Administrative Law Judge (ALJ) in Customs I. Id. The GC argues that, in these circumstances, the Respondent’s arguments regarding the notice could have been, but were not, raised while the case was pending before the Authority. Id.
C. The Charging Party’s Opposition
The Charging Party argues that the Respondent’s argument that the