46:0814(70)NG - - NTEU and Region X, Seattle, WA - - 1992 FLRAdec NG - - v46 p814



[ v46 p814 ]
46:0814(70)NG
The decision of the Authority follows:


46 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION X

SEATTLE, WASHINGTON

(Agency)

0-NG-2078

(46 FLRA 444 (1992))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

November 30, 1992

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Union's request for reconsideration of the Authority's order dismissing the Union's petition for review in 46 FLRA 444. The Agency filed an opposition to the Union's request for reconsideration. For the following reasons, we conclude that the Union's request does not demonstrate that extraordinary circumstances exist warranting reconsideration of the Authority's order. Accordingly, we will deny the Union's request for reconsideration.

II. The Order in 46 FLRA 444

Subsequent to the parties' agreement to a memorandum concerning the use of time off as an incentive award, the Union requested from the Agency an allegation of nonnegotiability on a proposal addressing time off as a performance award. The Authority stated in 46 FLRA 444 that, in response to the Union's request, the Agency did not declare the proposal nonnegotiable.

The Authority also stated that, under section 7117 of the Federal Service Labor-Management Relations Statute (the Statute), a petition for review of negotiability issues will be considered only where an agency alleges in writing that a proposal is inconsistent with law, rule, or regulation. Further, the Authority stated that, as allegations of nonnegotiability must be in writing, oral exchanges between parties are not material. Based on the finding that the Agency had not declared nonnegotiable the proposal which is the subject of the Union's petition for review, the Authority dismissed the petition without prejudice to the Union's right to file another petition provided the statutory and regulatory conditions for review of such petition were met.(1)

III. Request for Reconsideration

The Union claims that reconsideration of the Authority's order is warranted under section 2429.17 of the Authority's Regulations(2) because, in the Union's view, the order misstates key facts and is inconsistent with previous Authority decisions. According to the Union, the Authority should grant reconsideration of the order because: (1) the Agency affirmed in writing the fact that it previously alleged orally that the disputed proposal was nonnegotiable; (2) the Agency has not withdrawn its allegation of nonnegotiability; and (3) the order in 46 FLRA 444 was not properly issued and demonstrates that the Authority's Case Control Office "is not properly expert in making determinations under the Statute." Request for Reconsideration at 4. The Union also claims that "a finding that [the Union] is seeking an advisory opinion is inappropriate[]" because the Union's statement regarding future negotiations was intended only to respond to the Agency's assertion that the disputed proposal is moot. Id.

IV. Opposition

The Agency claims that the Union's request does not establish extraordinary circumstances warranting reconsideration of the order in 46 FLRA 444. As relevant here, the Agency states that it "has not and will not declare the . . . proposal nonnegotiable . . . ." Opposition at 5.

V. Analysis and Conclusions

Section 2429.27 of the Authority's Regulations permits a party that can establish extraordinary circumstances to request reconsideration of a decision or order of the Authority. We conclude that the Union has not established extraordinary circumstances in this case.

First, it is clear and undisputed that, under the Authority's Regulations, an allegation of nonnegotiability must be in writing. See 5 C.F.R. § 2424.3 ("The exclusive representative shall request such allegation in writing and the agency shall make such allegation in writing . . . ."). It also is clear in the record before us that the Agency has not alleged in writing that the disputed proposal is nonnegotiable. In fact, the Agency repeatedly has refused to declare the proposal nonnegotiable.

We note the Agency's statement that it "would not agree to language which expanded [time off awards] to the area of performance awards and . . . that Public Law 101-509, the [Code of Federal Regulations], and the [Agency] Instruction provided for time off as an Incentive Award only." Motion to Dismiss of September 2 at 5 (emphasis in original). We find no basis in the record for concluding that, by asserting that law and regulation provide for time off only as an incentive award, the Agency was alleging that the use of time off for other awards was nonnegotiable. Moreover, as the Agency has not alleged that the proposal is nonnegotiable, the Union's reliance on the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 468 (1990) is misplaced. In that case, the agency "submitted a response to the petition for review in which it . . . argue[d] that the [u]nion's proposal [was] inconsistent with law, rule or regulation." Id. In this case, the Agency has not submitted such a response.

Second, we reject the Union's argument that the Authority should reconsider the dismissal of the petition for review because the Agency was not authorized under the Authority's Regulations to move that the Union's petition be dismissed and because the Agency has not withdrawn its allegation of nonnegotiability. Put simply, we conclude that the Agency did not allege nonnegotiability. As such, withdrawal of an allegation of nonnegotiability is not necessary. Moreover, nothing in the Authority's Regulations prohibits the filing of a motion requesting dismissal of a petition for review because conditions governing such petition have not been satisfied.

Finally, the Union offers no authority, and none is otherwise apparent to us, for its argument that the Director of the Authority's Case Control Office was not properly authorized to issue the order in 46 FLRA 444. Section 7105(d) of the Statute provides for the appointment of, and delegation of authority to, Authority officers and employees. In this case, the Director of the Case Control Office has been properly delegated authority, subject to Authority review on a request for reconsideration, to dismiss petitions for review in circumstances such as the one before us. We reject as unfounded the Union's argument to the contrary.

In sum, the Union has not established the existence of extraordinary circumstances necessary for reconsideration of the Authority's order in 46 FLRA 444. Accordingly, we will deny the Union's request.(3)

VI. Order

The Union's request for reconsideration is denied.




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