47:1082(101)NG - - ACT and DOD NG Bureau, RI National Guard, Providence, RI - - 1993 FLRAdec NG - - v47 p1082



[ v47 p1082 ]
47:1082(101)NG
The decision of the Authority follows:


47 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

ASSOCIATION OF CIVILIAN TECHNICIANS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

RHODE ISLAND NATIONAL GUARD

PROVIDENCE, RHODE ISLAND

(Agency)

0-NG-1813

(47 FLRA 743 (1993))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

June 30, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a request for reconsideration of our decision in 47 FLRA 743 (1993) filed by the Agency under sesction 2429.17 of the Authority's Rules and Regulations. The Union did not file an opposition.

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 Agency's request for reconsideration.

II. The Decision in 47 FLRA 743 (1993)

In Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 38 FLRA 1005 (1990) (R.I. National Guard I), we found that parts (a), (h), and (i) of Proposal 2, which concern the number of uniforms to be supplied to civilian technicians, were negotiable. Our decision was appealed by the Agency to the U.S. Court of Appeals for the D.C. Circuit, which found that the Authority had "generously translated" the Agency's statement of position as a claim that parts (a), (h), and (i) interfered with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Rhode Island v. Federal Labor Relations Authority, 982 F.2d 577, 580 (D.C. Cir. 1993) (R.I. National Guard v. FLRA). The court also found, however, that "[h]aving thus framed the issue," the Authority had not adequately "explained why . . . [parts (a), (h), and (i)] did not impinge on the [Agency's] management authority under § 7106(b)(1)." Id. The court remanded the case to the Authority, stating that "'the record and the [FLRA's] explanation' for its decision 'are insufficient to support judicial review[.]'" Id. (citation omitted).

On remand, we applied the Authority's established two-prong test to determine whether parts (a), (h), and (i) directly interfered with management's right to determine the methods and means of performing work. Under this test, an agency must show: (1) a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) that a disputed proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1451 (1992).

We determined that "the Agency [had] made no attempt to demonstrate a direct and integral relationship between the requirements" of the Agency to "provide to technicians a specified number of uniforms . . . and the accomplishment of the Agency's mission[.]" Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 47 FLRA 743, 746 (1993) (R.I. National Guard II). In this connection, we found that parts (a), (h), and (i) did not "involve or seek to limit the Agency's determination that a specified uniform is required; its determination as to the composition of the uniform; or its determination as to the circumstances where the uniform must be worn." Id. We determined that the Agency had not "established any link between [parts (a), (h), and (i)] and the technicians' performance of work, and, thus, [had] not satisfied the first prong of the test." Id. Accordingly, we concluded that parts (a), (h), and (i) did not interfere with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

III. Agency's Request for Reconsideration

The Agency claims that the Authority failed to follow the court's instructions in R.I. National Guard v. FLRA. Specifically, the Agency contends that, in remanding the case to the Authority, "the intent of the court was for the FLRA to develop a record which would be sufficient for the issuance of [a] reviewable decision." Request at 1. The Agency claims that the Authority "should have turned back to the parties with a demand for full argument on the 'method and means' question." Id. at 2. To support its claim, the Agency contends that, in State of New York, Division of Military and Naval Affairs v. FLRA, 696 F.2d 202 (2d Cir. 1982), the Authority reopened the record for additional submissions pursuant to a remand by the court.

IV. 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. For the following reasons, we conclude that the Agency has not established that extraordinary circumstances exist within the meaning of section 2429.17 to warrant reconsideration of our decision in 47 FLRA 743 (1993).

We reject as unsupported the Agency's assertion that, to comply with the court's remand, the Authority was required to solicit additional arguments from the parties. The court remanded the case because, according to it, the Authority "never explained why a proposal specifying the number of free uniforms . . . did not impinge on the [Agency's] management authority under § 7106(b)(1)." R.I. National Guard v. FLRA, 982 F.2d at 580. Although the court, citing a previous decision, stated that "'the record and the [FLRA's] explanation'" were insufficient to support judicial review, it is clear that the court remanded the case to permit the Authority to "express[] its judgment on the [Agency's arguments]." Id. (citation omitted). In R.I. National Guard II, the Authority expressed its judgment on the arguments by concluding that the Agency had not supported its assertion that the disputed portions of the proposal interfered with the Agency's rights under section 7106(b)(1) of the Statute. That the Agency did not establish a record on which to conclude that the disputed portions of the proposal were nonnegotiable under section 7106(b)(1) does not mean that the record was insufficient for the Authority to resolve such a claim or that the Authority was required to provide the Agency an additional opportunity to demonstrate nonnegotiability. See National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (1982).

We note two additional things. First, although over 4 months elapsed between the date of the court's decision in R.I. National Guard v. FLRA and the Authority's decision in R.I. National Guard II, the Agency at no time requested permission to make additional arguments before the Authority. Second, in other cases where a court's directive could be accomplished by the Authority based on an original record, the Authority did not request additional submissions from the parties. For example, United States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York, 46 FLRA 1002 (1992); International Brotherhood of Electrical Workers, Local 611 and U.S. Department of the Interior, Bureau of Reclamation, Rio Grande Project, 37 FLRA 670 (1990). That is, there is no established Authority practice, on which the Agency could reasonably have relied, of seeking additional submissions in cases such as this one. In this regard, we do not find dispositive the fact that in other cases the Authority has sought additional submissions, especially in view of the fact that the court's decision in this case did not require such action.

We find that the Agency's arguments constitute nothing more than disagreement with our findings and conclusions in R.I. National Guard II, and are an attempt to relitigate the case before the Authority. As such, the Agency has failed to establish that extraordinary circumstances exist which warrant reconsideration of our decision under section 2429.17 of our Rules and Regulations. See, for example, International Asso