23:0349(47)CU - Agriculture, Forest Service, Intermountain Region, Challis National Forest and Forest Service Council, NFFE, Independent -- 1986 FLRAdec RP



[ v23 p349 ]
23:0349(47)CU
The decision of the Authority follows:


 23 FLRA No. 47
 
 UNITED STATES DEPARTMENT OF AGRICULTURE
 FOREST SERVICE, INTERMOUNTAIN REGION
 CHALLIS NATIONAL FOREST
 Activity
 
 and
 
 FOREST SERVICE COUNCIL
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, INDEPENDENT
 Labor Organization
 
                                            Case No. 9-CU-60002
                                                     9-CU-60003
 
                   ORDER DENYING APPLICATION FOR REVIEW
 
    On July 21, 1986, the United States Department of Argiculture Forest
 Service, Intermountain Region, Challis National Forest (Activity) filed
 a timely application for review pursuant to section 2422.17(a) of the
 Authority's Rules and Regulations, seeking to set aside in part, the
 Regional Director's Decision and Order in the above-named cases.  In its
 application for review, the Activity contends that compelling reasons
 exist within the meaning of section 2422.17(c) of the Authority's Rules
 and Regulations for granting the application.
 
    The Regional Director, citing Department of Interior, Bureau of Land
 Management, District Office, Lakeview Oregon, 2 A/SLMR 515 (1972) and
 United States Forest Service, Salmon National Forest, Salmon, Idaho, 5
 A/SLMR 586 (1975), review denied by the Federal Labor Relations Council,
 4 FLRC 89, 75A-107 (1976), found that "season supervisors" should be
 excluded from the certified unit during the period in which they are
 supervising seasonal employees, but shoud be considered to be within the
 unit for that part of the year when they have no subordinates reporting
 or assigned to them.
 
    In its application for review, the Activity contends that review
 should be granted based on the Regional Director's reliance on Executive
 Order Law and in the absence of Authority precedent since the case
 raises a substantial question of law or policy.  Contrary to the
 Activity's position, the Authority finds no reason to change the
 long-standing policy with regard to "seasonal supervisors" established
 under the cited Executive Order cases.
 
    Under consideration of the Activity's application for review,
 including all arguments in support thereof, the Authority concludes that
 no compelling reason exists for granting the application.  Rather the
 application in essence expresses mere disagreement with the Regional
 Director's findings which are based on precedent and have not been shown
 to be clearly erroneous or to have prejudicially affected the rights of
 any party.
 
    Accordingly, pursuant to section 2422.17(f)(3) of the Authority's
 Rules and Regulations, IT IS ORDERED that the application for review of
 the Regional Director's Decision and Order be, and it hereby is, denied.
  As the Activity's application for review only sought review of the
 Regional Director's findings with respect to three "seasonal
 supervisors," all other findings of the Regional Director are not at
 issue herein and are final.
 
    Issued, Washington, D.C., September 19, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                 ORDER DENYING REQUEST FOR RECONSIDERATION
 
    This matter is before the Authority because of the Union's request
 for reconsideration of the Authority's Decision and Order on
 Negotiability Issues of July 15, 1986, in the above-entitled matter.
 For the reasons set forth below, the request must be denied.
 
    In its decision the Authority held that because the disputed portion
 of Provision 1 provided non-appropriated fund (NAF) employees who are
 not covered by 5 U.S.C. Section 4303 with an option to contest
 performance based non-disciplinary separations for cause through either
 the Agency's internal regulatory appeals procedure or through the
 negotiated grievance procedure which covers such matters, it was outside
 the duty to bargain.  The provision was contrary to section 7121(a)(1)
 which establishes that, except for those matters set out in section
 7121(d) and (e), the negotiated grievance procedure shall be the
 exclusive procedure for resolving all matters which fall within its
 coverage.  The Authority found that the Agency's internal administrative
 appeals system did not constitute an "appellate procedure" within the
 meaning of section 7121(e)(1) which permits employees not covered by
 title 5 the option of challenging performance based non-disciplinary
 separations, through their negotiated grievance procedure or through the
 applicable "appellate procedure" which may exist under their non-title 5
 personnel system.
 
    In support of its request for reconsideration, the Union contends
 that since the position of the Agency as set forth in the record of the
 case does not address whether its administrative appeals procedure is an
 "appellate procedure" under section 7121(e), the Authority's decision is
 based on a matter that was not at issue in the case.
 
    Section 2429.17 of the Authority's Rules and Regulations provides
 that a party which can establish "extraordinary circumstances" may
 request reconsideration of an Authority decision.  Here, however, the
 Union has not established "ext