40:1009(86)NG - - NFFE Local 341 and DOI, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, WA - - 1991 FLRAdec NG - - v40 p1009
[ v40 p1009 ]
The decision of the Authority follows:
40 FLRA No. 86
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on a motion filed by the Agency seeking reconsideration of our decision in 39 FLRA No. 110. The Union filed an opposition to the motion for reconsideration.
For the following reasons, we conclude that the Agency has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the motion for reconsideration.
II. The Decision in 39 FLRA No. 110
For the reasons set forth fully in 39 FLRA No. 110, the Authority concluded that the proposal in dispute was negotiable. The Authority noted that the Agency did not file a statement of position. The Authority did, however, address claims made by the Agency in its allegation of nonnegotiability.
III. The Agency's Motion for Reconsideration
The Agency argues that, contrary to the Authority's Regulations, which require that a negotiability appeal be served on the head of the agency involved in the dispute, "no such petition for review was ever received by the [A]gency head or his designee." Motion for Reconsideration at 1. According to the Agency, "[i]f the Agency head had been served . . . the Agency would have controverted the Union's assertion that the Agency is obligated to bargain on the proposal . . . ." Id. The Agency argues that the Union's failure to serve the agency head "severely prejudices the position and interest of the Agency and constitutes 'extraordinary circumstances . . . .'" Id. at 2.
IV. The Union's Opposition
The Union argues that the Agency has not shown that extraordinary circumstances exist so as to warrant reconsideration of the Authority's decision. The Union asserts that, consistent with the statement of service attached to its petition for review, it properly served the Agency's head. The Union notes, however, that "the Postal Service Return Receipt has been lost." Opposition at 1.
V. Analysis and Conclusions
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency had not established extraordinary circumstances, within the meaning of section 2429.17, to warrant reconsideration of our decision in 39 FLRA No. 110. We note two things.
First, in accordance with section 2424.4(b) of the Authority's Rules and Regulations, a petition for review must be served on the agency head and on the agency's principal bargaining representative and, under section 2429.27(c) of the Regulations, a signed and dated statement of service must be included with a petition for review. Consistent with these provisions, the Union included with its petition a signed and dated statement of service indicating that the Union served its petition on the Secretary of the Interior and on the Personnel Officer of the Bureau of Indian Affairs Portland Area Office.
The Agency claims that neither the Secretary of the Interior nor his designee received a copy of the Union's petition. The Agency does not claim, however, that the Personnel Officer of the Bureau of Indian Affairs Portland Area Office did not receive a copy of the appeal.
Second, shortly after receipt of the Union's petition, the Authority served notices reflecting such receipt on, as relevant here, the Agency head's designee and the Personnel Officer of the Bureau of Indian Affairs Portland Area Office. The Agency does not claim that the Authority's notice was not received by either the Agency head's designee or the Personnel Officer of the Bureau of Indian Affairs Portland Area Office.
The Union's petition for review contained a proper statement of service and otherwise complied fully with the Authority's Regulations. In addition, even if the Agency head did not receive a copy of the petition, there is no contention that the Agency's principal bargaining representative was not served properly. Moreover, the Authority served a notice of the petition on both the Agency head's designee and the principal bargaining representative.
In these circumstances, we conclude that the Agency had adequate knowledge that a petition for review had been filed and ample opportunity to raise in a statement of position any issues concerning the negotiability of the disputed proposal or the propriety of service of the petition on the Agency head. As such, the Agency has not established extraordinary circumstances warranting reconsideration of our decision. Compare American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 38 FLRA 177 (1990) (in absence of evidence or arguments to the contrary by the union, the Authority concluded that the union's failure to serve the agency's principal bargaining representative with a copy of the petition for review, corrected pursuant to Authority's deficiency notice, constituted extraordinary circumstances warranting grant of request for reconsideration and reopening of record).
The Agency's motion for reconsideration of the Authority's Decision in 39 FLRA No. 110 is denied.