46:1202(112)AR - - Interior, Bureau of Reclamation, Upper CO Region, CO River Storage Project, Power Operation Office and Great Plains Region and IBEW - - 1993 FLRAdec AR - - v46 p1202
[ v46 p1202 ]
The decision of the Authority follows:
46 FLRA No. 112
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION, UPPER COLORADO REGION
COLORADO RIVER STORAGE PROJECT
POWER OPERATION OFFICE
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION, GREAT PLAINS REGION
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
LOCALS 2159 AND 1759
(46 FLRA 247 (1992))
ORDER DENYING MOTION FOR RECONSIDERATION
AND REQUEST FOR STAY
January 15, 1993
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This matter is before the Authority on a motion for reconsideration of 46 FLRA 247 (1992) (Member Talkin concurring) filed by the Agency under section 2429.17 of the Authority's Rules and Regulations. The Agency also requested a stay of the Authority's decision in 46 FLRA 247. The Union filed an opposition to the Agency's motion and request for a stay.(2)
We conclude that the Agency fails to establish that extraordinary circumstances exist warranting reconsideration of the Authority's decision in 46 FLRA 247. Accordingly, we will deny the Agency's motion and request for a stay.
II. Preliminary Matter
The Union contends that the Agency's motion for reconsideration and request for a stay "appears to be untimely" and should be dismissed as untimely filed. Opposition at 1. We find that the motion was timely filed. A motion for reconsideration must be filed within 10 days of the date of service of the Authority's decision or order. 5 C.F.R. § 2429.17. The date of service is the date the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). The Authority's decision was served by mail on the parties on October 23, 1992. Accordingly, under sections 2429.21 and 2429.22 of the Authority's Rules and Regulations, 5 days are added to the 10-day time period for filing the motion for reconsideration. Further, the last day of the period so computed is to be included unless it is a Saturday, Sunday, or a Federal legal holiday, in which case the period shall run until the end of the next day which is not a Saturday, Sunday, or a Federal legal holiday. 5 C.F.R. § 2429.21. Consequently, because the last day of the time period so computed, November 7, 1992, was a Saturday, the time period for filing exceptions was advanced to the end of the next workday. To be timely, therefore, the Agency's motion had to be either postmarked by the U.S. Postal Service or received by the Authority no later than Monday, November 9, 1992. The Agency's motion was received by the Authority on November 9, 1992, and, therefore, is timely.
III. Arbitrator's Award and The Authority's Decision in 46 FLRA 247
As an initial matter, the Arbitrator determined that the Union's grievance, alleging that the Agency's unilateral removal of employees in Foreman II and III positions (supervisory foremen) violated the terms of the parties' collective bargaining agreements, was arbitrable and properly before him. The Arbitrator rejected the Agency's contention that he would have to make an appropriate unit determination in order to resolve the issue before him. The Arbitrator ruled that he had to resolve only whether the Agency had violated the parties' agreements when it unilaterally removed the supervisory foremen from the Union's respective bargaining units.
As to the merits of the grievance, the Arbitrator concluded that the Agency violated the parties' respective collective bargaining agreements by refusing to recognize the unit status of the supervisory foremen as set forth in the parties' agreements and by unilaterally removing those foremen from their respective bargaining units. The Arbitrator found that the agreement provisions which established the makeup of the collective bargaining units were still in effect by virtue of the automatic renewal provisions of the parties' agreements. The Arbitrator rejected the Agency's argument that the court's decision in United States Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, 880 F.2d 1163 (10th Cir. 1989) (WAPA v. FLRA) "'compelled the [Agency] to ignore the existing provisions' of the parties' agreements" and unilaterally remove the supervisory foremen from their respective bargaining units. 46 FLRA at 258 (quoting Award at 10). Consequently, the Arbitrator found, among other things, that the supervisory foremen "had their inclusion in the bargaining unit automatically renewed and that they remain in the bargaining unit under the provisions of the [c]ollective [b]argaining [a]greement." Id. at 260 (quoting Award at 13-14). The Arbitrator ordered the Agency to advise the affected supervisory foremen of their status within the bargaining unit and to make them whole for all lost wages and benefits arising from the violations of the collective bargaining agreement by the Agency.
In exceptions filed with the Authority, the Agency alleged that the Arbitrator's award was deficient because it was: (1) based on erroneous findings; and (2) contrary to law, specifically, section 704 of the Civil Service Reform Act (CSRA) and sections 7105(a)(2)(A) and 7112(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) and Authority precedent interpreting those provisions. The Authority rejected each of the Agency's claims. Consequently, in 46 FLRA 247, the Authority denied the Agency's exceptions to the Arbitrator's award.
IV. Positions of the Parties
The Agency claims that the Arbitrator and the Authority erred in determining that the Agency violated the parties' collective bargaining agreements by unilaterally removing Foreman II and III positions from the bargaining units and requests the Authority to reconsider and reverse its decision in 46 FLRA 247. Further, the Agency requests the Authority to stay the implementation of the decision in 46 FLRA 247 pending a determination in the appeal of the Authority's decision in U.S. Department of Interior, Bureau of Reclamation, Washington, D.C., 46 FLRA 9, 45-46 (1992) (Member Talkin, dissenting) (Bureau of Reclamation), petition for review filed, No. 92-1625 (D.C. Cir. Dec. 2, 1992).
The Agency contends that the Authority's decision in 46 FLRA 247 is contrary to law because "[t]he law clearly provides that the Authority shall determine the appropriateness of any unit, and that a unit shall not be determined to be appropriate" if it is a mixed unit. Motion at 2. Further, the Agency contends that the Authority erred in determining, contrary to the court's decision in WAPA v. FLRA, that the scope of the bargaining unit is a mandatory subject of bargaining under section 704 of the CSRA. Additionally, the Agency contends that the provisions of the parties' agreements "do not apply to the circumstances of this case" because "such provisions refer only to situations where either party demands 'negotiations' on any specific provision . . . or intends to terminate the agreement or 'effect changes by joint conference' . . . ." Id. at 10. The Agency also contends that "the Authority erred in determining that the [A]gency and [U]nion 'negotiated' on the scope of the bargaining unit when, in reality, it was solely the wages and other benefits that had been negotiated on behalf of Foreman II and III positions and not the 'recognition' of supervisory foremen in mixed units." Id. at 5 (citation and footnote omitted).
Finally, the Agency contends that the Arbitrator found that the Agency's action in this case constituted an unfair labor practice. The Agency asserts that the Authority "should acknowledge that this case also involves an unfair labor practice for failure to bargain on behalf of the supervisors." Id. at 12.
The Union contends that the Agency's motion for reconsideration and request for a stay "does not recite exceptional circumstances which require reconsideration, as required under 5 C.F.R. § 2429.17[,]" and "should be summarily rejected for lack of merit." Opposition at 1. In support of its contention, the Union claims that the Agency's motion "simply rehashes all the arguments which the Authority has already considered, and constitutes a mere disagreement with the Authority's [d]ecision [in 46 FLRA 247]." Id. Further, the Union notes that "[w]hile the Agency's confession to committing an unfair labor practice is most welcome, it cannot, at this late day, convert its exceptions to the Arbitrator's [a]ward filed pursuant to 5 U.S.C. § 7122 to an appeal of a finding, pursuant to 5 U.S.C. § 7123[,] that an unfair labor practice charge was committed." Id. at 2.
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 has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of the Authority's decision in 46 FLRA 247.
Specifically, the Agency's arguments raised in its motion for reconsideration were considered and addressed by the Authority in 46 FLRA 247. Nothing in the Agency's motion establishes that reconsideration of the Authority's findings and conclusions is warranted.
Further, contrary to the Agency's contention, the Arbitrator did not rule that the Agency committed an unfair labor practice. Rather, the Arbitrator stated that
an argument could be made in an appropriate forum that . . . either the [Agency's] actions constituted an unfair labor practice, or that [WAPA v. FLRA] did not compel the removal of the [supervisory] forem[e]n from the bargaining unit. In any event, the Arbitrator is persuaded that without such a determination having been made before the [Agency] unilaterally removed the foremen, the [Agency] acted at its peril and acted in violation of those provisions of the [c]ollective [b]argaining [a]greement relating to notification of an intent to modify the [a]greement.
46 FLRA 258-59 (quoting Award at 11). We find that the Arbitrator's statement does not constitute a finding that the Agency committed an unfair labor practice. Consequently, the Agency's argument in that regard does not provide a basis for us to reconsider the Authority's decision in 46 FLRA 247.
We find that the Agency's arguments in its motion for reconsideration constitute nothing more than disagreement with the Authority's findings and conclusions in 46 FLRA 247 and are, therefore, merely an attempt to relitigate the merits of the Authority's decision. See U.S. Department of the Interior, Bureau of Reclamation, Missouri Basin Region and International Brotherhood of Electrical Workers, Local 1759, 43 FLRA 380, 383 (1991). We conclude that the Agency has failed to establish that extraordinary circumstances exist which would warrant reconsideration of 46 FLRA 247. Accordingly, we will deny the Agency's motion for reconsideration. The request for a stay in implementing the Authority's decision in 46 FLRA 247 will also be denied. International Association of Firefighters, Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama, 44 FLRA 954, 958 (1992).
The Agency's motion for reconsideration is denied.
(If blank, the decision does not have footnotes.)
1. 1/ Member Talkin joins the denial of the motion for reconsideration and request for a stay because she agrees that the Agency has failed to establish extraordinary circumstances warranting reconsideration under section 2429.17 of the Authority's Rules of the Authority's decision in 46 FLRA 247. In addition, she finds that the Agency fails to establish extraordinary circumstances that persuade her to reconsider her concurring opinion in 46 FLRA 247.
2. The Agency filed a response to the Union's opposition. The Authority's Rules and Regulations do not provide for the filing of supplemental submissions, and the Agency fails to demonstrate a reason for the Authority to consider its supplemental submission in this case. Accordingly, we have not considered the supplemental submission. See U.S. Department of the Army, Folk Polk, Louisiana and National Association of Government Employees, Local R5-168