33:0498(67)NG - - AFGE Local 3760 and HHS, SSA - - 1988 FLRAdec NG - - v33 p498



[ v33 p498 ]
33:0498(67)NG
The decision of the Authority follows:


33 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 3760

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

0-NG-1484

(32 FLRA 813)

ORDER DENYING MOTION FOR RECONSIDERATION

October 28, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This case is before us on a motion of the American Federation of Government Employees, AFL-CIO, Local 3760 (the Union) seeking reconsideration of our August 17, 1988, order dismissing the Union's negotiability appeal. We dismissed the Union's appeal because the record was insufficient to enable us to resolve the appeal. For the reasons stated below, we deny the Union's motion for reconsideration.

II. Background

The petition for review concerned five proposals relating to the distribution of "sample cases" to examiners who handle disability claims in the disability quality branch of the Department of Health and Human Services, Social Security Administration's (the Agency's) Field Assessment Office. Following receipt of the Union's petition for review, the Authority's Office of Case Management informed the Union that its petition did not meet the requirements of section 2424.4(a)(2)(i) of the Authority's regulations. Section 2424.4(a)(2)(i) provides that a petition for review shall contain an "[e]xplanation of terms of art, acronyms, technical language, or any other aspect of the language of the proposal which is not in common usage." The Authority requested that the Union provide an explanation of the uncommon language contained in its petition for review.

The Union responded in a letter explaining certain acronyms in the proposals. However, the Union did not provide an explanation of the term "sample cases" or a description of the work situation which would enable the Authority to understand the context in which the terms of the proposals were intended to apply. The Authority did not receive a statement of position from the Agency.

Based on the record before us, we found that we could not determine the effect of the proposals on management's rights. We dismissed the Union's petition for review because the record was insufficient to enable the Authority to resolve the negotiability appeal.

III. Union's Request for Reconsideration

The Union requests that we reconsider our decision and that we permit the Union to submit a statement of position concerning the proposals in this case. The Union contends that "the total lack of regulatory basis and/or applicability of existing regulation for the Authority's dismissal of [the] appeal constitutes 'extraordinary circumstances.'" Union's Request at 1. The Union states that the Authority's Rules and Regulations require the Agency to submit a statement of position in response to the Union's petition for review. The Union argues that it is the Agency's failure to fulfill its obligation that caused the defect in the record. The Union maintains that the Authority's rules "provide no opportunity for the [U]nion to perfect its appeal or to automatically submit a statement of position should the agency fail to submit its statement." Id. at 2. The Union also asserts that the Authority has provided no guidance concerning the action a union should take in this situation.

The Agency did not file an opposition to the Union's request for reconsideration.

IV. Analysis and Conclusion

Under section 2429.17 of the Authority's Rules and Regulations, a party who can establish "extraordinary circumstances" may request reconsideration of a final decision and order of the Authority. We conclude that the Union has not established "extraordinary circumstances" within the meaning of section 2429.17.

Section 2424.4 of the Authority's regulations sets out a union's obligation concerning the content of a petition for review. The Union's petition for review did not meet the requirements of that section. Further, the Union's response to the Authority's request that the Union clarify the uncommon language in its petition for review was incomplete in that it did not fully explain the uncommon language in the proposals. The Union also failed to provide information concerning the work environment sufficient for the Authority to understand the practical effect of the proposals. Because the Agency did not submit a statement of position, the Union did not submit a response to the Agency's statement as provided for in section 2424.7 of our regulations. Therefore, the Authority was left to rely on the information provided in the Union's incomplete petition for review.

The Union contends that the lack of regulatory basis for the Authority's dismissal of the Union's appeal constitutes "extraordinary circumstances." The Union also contends that we should reconsider our decision because the Authority's rules do not allow the Union to perfect an appeal. However, section 2424.4(c)(1) of the Authority's regulations provides:

Filing an incomplete petition for review will result in the exclusive representative being asked to provide the missing or incomplete information. Noncompliance with a request to complete the record may result in dismissal of the petition.

Therefore, when the Union filed an incomplete petition for review and then failed to comply with the Authority's request that it complete the record, the Union risked having its petition for review dismissed by the Authority. Contrary to the Union's claim, the Authority's rules provide an opportunity for the Union to complete its appeal by providing information upon request by the Authority.

The Union argues that the Agency's failure to fulfill its obligation under the Authority's regulations caused the defect in the record. The Union contends that the Authority's rules provide no opportunity for a union to automatically submit a statement of position where an agency fails to submit a statement of position. However, the Union ignores the fact that the Authority's regulations set out the specific requirements concerning the content of a petition for review and that the Union did not comply with those requirements even after being asked to provide the necessary information.

Where a union files a petition which meets the requirements of the regulations and an agency fails to file a statement of position, the Authority will determine the negotiability of the proposals in question on that record. See, for example, National Treasury Employees Union, Chapter 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578 (1988); American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Cypress Hills District Office, 31 FLRA 1110 (1988); Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436 (1987). In this case, the failure on the part of the Agency to file a statement of position did not cause the dismissal of the Union's petition. The record in this case consisted of the Union's incomplete petition for review and the Union's incomplete response to the Authority's request to provide certain missing information. The record was insufficient for the Authority to make a negotiability determination.

The Union also asserts that we should grant its request for reconsideration because the Authority has provided no guidance concerning the action a union should take when an agency fails to file a statement of position. However, the Authority has consistently held that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet this burden acts at its own peril. See American Federation of Government Employees, AFL-CIO, Local 3760 and Department of Health and Huma