43:0380(38)AR - - Interior, Bureau of Reclamation, MO Basin Region and IBEW Local 1759 - - 1991 FLRAdec AR - - v43 p380



[ v43 p380 ]
43:0380(38)AR
The decision of the Authority follows:


43 FLRA No. 38

FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
MISSOURI BASIN REGION
(Agency)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
LOCAL 1759
(Union)

0-AR-1889
(42 FLRA 820 (1991))

November 29, 1991

ORDER DENYING MOTION FOR RECONSIDERATION

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in 42 FLRA 820 (1991). Because the Agency fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we will deny the motion.

II. Arbitrator's Award and the Decision in 42 FLRA 820

The Arbitrator held that the Agency's unilateral termination of Sunday premium pay, without bargaining on the issue, was improper under section 704 of the Civil Service Reform Act (CSRA). The Arbitrator rejected the Agency's argument that it was not obligated to bargain with the Union concerning the termination of Sunday premium pay because the matter was not specifically included in the parties' collective bargaining agreement as of August 19, 1972. The Arbitrator also rejected the Agency's contention that Sunday premium pay was illegal and could not be paid in the absence of a prevailing practice of Sunday premium pay in the private sector of the local area. As a remedy for the Agency's improper unilateral termination of Sunday premium pay, the Arbitrator ordered the Agency to reinstate the Sunday premium pay.

We denied the Agency's exceptions to the Arbitrator's award. We held that the Agency failed to demonstrate that the award was deficient under section 704 because it concerned a matter about which the parties had not bargained prior to August 19, 1972. We found that the Agency was obligated to pay Sunday premium pay under the parties' agreement. We noted that, under section 704, current prevailing practices have no effect on an existing contract provision for the life of the parties' contract. Therefore, we rejected the Agency's argument that it was required to terminate Sunday premium pay because it was not the current prevailing practice. We agreed with the Arbitrator that the Agency was required to continue the payment of Sunday premium pay under the existing agreement and that the Agency was not justified in unilaterally terminating Sunday premium pay under the existing agreement before it completed negotiations with the Union over that subject.

III. Agency's Motion for Reconsideration

The Agency contends that our decision in 42 FLRA 820 is contrary to established precedent. In support of its contention, the Agency cites United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990); International Brotherhood of Electrical Workers, Local 611 and U.S. Department of the Interior, Bureau of Reclamation, Rio Grande Project, 37 FLRA 670 (1990) (adopting, as law of the case, Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990)); U.S. Department of Interior, Colorado River Storage Project and International Brotherhood of Electrical Workers, Local 2159, 36 FLRA 283 (1990); and United States Department of the Interior, Bureau of Reclamation, Washington, D.C., 36 FLRA 3 (1990).

The Agency also contends that our decision in 42 FLRA 820 fails to consider relevant facts in the parties' stipulation of facts. The Agency argues that those facts show that the Agency properly terminated Sunday premium pay. The Agency also argues that our decision in U.S. Department of Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams and International Brotherhood of Electrical Workers, Local 640, 42 FLRA 76 (1991) (Lower Colorado Dams Project Office, Parker and Davis Dams) (order denying reconsideration) and the decision of the Comptroller General in 60 Comp. Gen. 668 (1981) support its contention that the Agency's unilateral termination of Sunday premium pay was proper. The Agency repeats its contention in 42 FLRA 820 that the award is contrary to law because the parties' stipulation is "completely silent" on the issue of "whether the subject of Sunday premium pay was negotiated by the parties prior to August 19, 1972, under section 704(a)." Motion at 8. The Agency maintains that section 704(a) requires a positive showing that the subject of Sunday premium pay was in fact negotiated by the parties prior to August 19, 1972. Therefore, the Agency contends, "the Authority's negative presumption that, because the Agency has not established that the parties had not bargained on Sunday premium pay prior to August 19, 1972, the award is not deficient, is contrary to the plain language of Section 704(a) and applicable court precedent requiring a positive finding . . . ." Id. at 9 (emphasis in original).

The Agency argues that:

[b]ecause of the change in the Authority's interpretation of section 704 in various decisions issued after the Arbitrator's Supplemental Opinion and Award was rendered in this case; and based on established court precedent interpreting section 704; and to provide consistency in its interpretation of section 704 for the guidance of labor and management covered by section 704; and based on the above stated stipulated facts not previously considered by the Authority which are material in this case, we believe that the [A]gency has established extraordinary circumstances warranting the Authority's reconsideration of its decision in this case.

Id. at 10-11.

III. 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 has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 42 FLRA 820.

Specifically, the Agency's arguments concerning the cases cited in its motion for reconsideration were raised by the Agency in 42 FLRA 820. Each of those arguments was considered by the Authority in 42 FLRA 820. See 42 FLRA at 827-31. See also Lower Colorado Dams Project Office, Parker and Davis Dams, 42 FLRA at 76-81. Nothing in the Agency's motion establishes that our findings and conclusions warrant reconsideration.

Further, the Agency's contention that we failed to consider relevant facts in the parties' stipulation of facts does not provide a basis for us to reconsider our decision in 42 FLRA 820. The Agency cites facts in the parties' stipulation which show that: (1) the Agency notified the Union of its desire to discontinue a pay practice in the contract that was non-prevailing; (2) the Union refused to agree to the elimination of Sunday premium pay; and (3) the Agency unilaterally terminated Sunday pay. The Agency argues that those facts show that the Agency bargained before it terminated Sunday premium pay. The Agency argues that because it bargained with the Union concerning the termination of Sunday premium pay and terminated that pay practice only after "the Union refused to agree to the termination of Sunday premium pay during negotiating sessions" and the parties had reached impasse, it was justified in terminating Sunday premium pay. Motion at 5.

In 42 FLRA 820, we held that because it had not been established that the Sunday premium pay provision in the parties' existing agreement is unenforceable, the Agency is required to continue Sunday premium pay under that agreement until the parties have completed their negotiations concerning the payment of Sunday premium pay under a new agreement. When the Union refused to agree to the termination of Sunday premium pay under the terms of the existing agreement, the Agency decided to end negotiations on that subject and terminated Sunday premium pay. We agreed with Arbitrator that the Agency was not justified in unilaterally terminating Sunday premium pay under the existing agreement before it completed bargaining over the subject as required under the parties' collective bargaining agreement.

We find that the Agency's arguments in its motion for reconsideration constitute nothing more than disagreement with our findings and conclusions in 42 FLRA 820 and are, therefore, merely an attempt to relitigate the merits of our dec