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

[ v46 p814 ]
The decision of the Authority follows:

46 FLRA No. 70












(46 FLRA 444 (1992))



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writing the fact that it previously alleged orally that the disputed proposal was nonnegotiable; (2) the Agency has not withdrawn its allegation of nonnegotiability; and (3) the order in 46 FLRA 444 was not properly issued and demonstrates that the Authority's Case Control Office "is not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 n