National Mediation Board (Agency/Petitioner) and American Federation of Government Employees, AFL-CIO (Union)

[ v56 p320 ]

56 FLRA No. 45

NATIONAL MEDIATION BOARD
(Agency/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(Union)

WA-RP-80049-REC

_____

ORDER DENYING MOTION FOR
RECONSIDERATION

May 5, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on the Agency's motion for reconsideration of the Authority's decision in National Mediation Board, 56 FLRA 1 (2000). (National Mediation Board II) (Member Segal, concurring). [n2] The Union filed an opposition to the motion.

      Section 2429.17 of the Authority's Regulations permits a party to request reconsideration of an Authority decision on the basis of extraordinary circumstances. For the following reasons, we conclude that the Agency has failed to establish that extraordinary circumstances exist. We, accordingly, deny the Agency's motion. [n3] 

II.     Background and Authority's Decision

      In National Mediation Board II, the Authority found that seventeen, non-mediator employees from various Agency components were properly included in the bargaining unit sought by the Union. In arriving at this finding, the Authority addressed the meaning of the term "administer" as it is used in section 7112(c). [n4] The Authority noted that its previous construction of this term was accomplished in connection with assessing the duties and responsibilities of professional employees. As the election petition pending before it concerned a unit of non-professional employees, the Authority further noted that it was presented with the opportunity to "further define" the meaning of this term. 56 FLRA at 5. After examining definitions of "administer" included in Webster's II New Riverside University Dictionary (1984), and Roget's II Thesaurus (1988), the Authority found that a more expansive definition would permit employees "who are not responsible for managing, implementing, carrying-out, or otherwise executing a provision of law relating to labor-management relations to be included in an appropriate unit" under section 7112(c). Id. Observing that such a definition would be of assistance in resolving future representation cases, the Authority adopted it.

      Applying the foregoing definition of the term "administer" to the duties and responsibilities of the disputed employees, the Authority determined that the RD did not err in including them in the unit. More specifically, the Authority found, in agreement with the RD, that the record failed to support the Agency's claim that these employees "administer" the Railway Labor Act (RLA) within the meaning of section 7112(c).

III.     Positions of the Parties

A.     Agency's Motion

      The Agency's motion requests reconsideration of National Mediation Board II only with respect to three of the seventeen employees. These employees -- Olybia Angelopoulos, Robin Stein and Judy Femi -- encumber positions in the Agency's Representation and Legal Department. According to the Agency, under the new definition of "administer" set forth in National Mediation Board II, each of these employees is "directly responsible for managing, implementing, carrying-out and otherwise executing the provisions of the RLA relating to representation elections." Motion for Reconsideration at 5. The Agency, therefore, contends that [ v56 p321 ] these employees must be excluded from the petitioned-for unit.

      In support of its contention, the Agency maintains that the manner in which it conducts its representation elections is unique. Citing and relying on the testimony of its General Counsel, the Agency explains that in order to be certified, "at least a majority of the entire electorate" must vote for representation. Id. In addition, the Agency explains that its voting procedure uses a "yes-only" ballot. Id. That is, if an employee casts a ballot, the employee has voted "yes." According to the Agency, voter secrecy is maintained through a key numbering system established by the three employees at issue in this proceeding. The Agency adds that safeguarding the identity of the voters is of critical importance.

      As concerns the specific duties of the disputed employees, the Agency notes that Olybia Angelopoulos is its Representation Coordinator. Relying on Angelopoulos' testimony given at the hearing, the Agency asserts that in this position Angelopoulos is responsible for preparing ballots; assisting leaders in ballot counts; putting key numbers on mail ballot envelopes; and processing employee requests for duplicate ballots. The Agency also points out that Angelopoulos is responsible for ensuring that mail ballots are sent to the correct address.

      In her position as a paralegal, the Agency notes that Robin Stein splits her workday between working on litigation matters in the morning and representation matters in the afternoon. According to the Agency, Stein is very involved in the representation process. In particular, the Agency relies on Stein's testimony that her duties include "[d]ocument[ing] cases, closing cases, counting decisions, typing eligibility letters or challenge letters to the parties, faxing to the parties, correspondence involving the case, just anything and everything involving representation." Id. at 8 (emphasis omitted). In addition, the Agency cites Stein's testimony that the ballots are kept in a locked ballot box located in the mailroom and, as far as she knew, only she and Angelopoulos have the key.

      Finally, the Agency notes that Judy Femi is its Freedom of Information Officer. The Agency states that at the hearing Femi testified that she is responsible for handling all of the Agency's FOIA requests, preparing the necessary documents for release, and recommending the final decision letter to the Chief of Staff. In performing these duties, the Agency states that Femi is required to have direct contact with the requesters, which includes employees, employers and labor organizations. According to the Agency, Femi also testified that she acts as the "secondary back-up" to Angelopoulos with regard to large elections. Id. at 10.

      Based on the duties of Angelopoulos, Stein, and Femi, as described above, the Agency maintains that they must be excluded from the petitioned-for unit under section 7112(c). More specifically, the Agency claims:

[e]very step in the election must ensure voter confidentiality to ensure electoral confidence in the process and the [Agency's] neutrality. Therefore, each step in the entire representation election process, from the chain of custody of ballots, to the mailing of ballots, returning of ballots and counts, is critical to the conduct of democratic and fair representation elections. The entire process, and the employees who administer it, must be free from any suspicion of irregularity by employers and employee organizations.

Id. Consequently, in order to ensure the integrity of its representation process, the Agency contends that these three employees cannot be included in the petitioned-for unit.

      In addition to requesting reconsideration, the Agency also requests that the Authority conduct an oral argument. The Agency asserts that this would permit the parties to fully and fairly present, and the Authority to consider, the respective legal positions.

B.     Union's Opposition     

      The Union's opposition to the Agency's motion for reconsideration first contends that the motion was not timely filed. In support of this contention, the Union notes that under section 2429.17 of the Authority's Regulations, a motion for reconsideration must be filed within ten days after service of the Authority's decision. The Union further notes that under section 2429.21 of the Authority's Regulations, the reference to ten days means ten calendar days. Therefore, even assuming that the Agency did not receive the decision in National Mediation Board II until February 15, 2000, the Union argues that the Agency's motion, filed on February 28, 2000, was untimely and must be dismissed.

      As a second ground, the Union asserts that under section 2429.17 of the Authority's Regulations, only a party that "can establish in its moving papers extraordinary circumstances for so doing" can move for reconsideration. Opposition at 5. The Union also points out that section 2429.17 requires a motion for reconsideration to state with particularity the extraordinary circumstances [ v56 p322 ] claimed and be supported by appropriate citations. According to the Union, the Agency's motion does not even "attempt to claim that extraordinary circumstances exist" much less describe such circumstances with particularity. Id.

      As a third ground, the Union disputes the Agency's claim that in National Mediation Board II, the Authority set forth a "new construction" of the term "administer" as it is used in section 7112(c). Id. at 6. Contrary to the Agency, the Union submits that in that case, the Authority "further define(d) the meaning of this term" by making the existing definition "more comprehensive" and "more expansive" without changing the definition or overruling it. In this connection, the Union points out that in her concurring opinion, Member Segal specifically stated that "[t]o the extent that the majority opinion implies [the Authority has] in some way, modified the Authority's standard for applying this term, as far as I can tell, we have not." Id. (quoting National Mediation Board II, 56 FLRA at 8).

      Finally, the Union maintains that the Agency's arguments regarding the three Representation and Legal Department employees are simply an attempt to relitigate issues that previously have been, or should have been, raised. To the extent that these arguments are addressed, the Union argues that none of the disputed employees is directly responsible for managing, implementing, carrying-out or otherwise executing the provisions of the RLA, as the Agency contends. The Union also asserts that there is no reason to present oral argument.

IV.     Analysis and Conclusions

      A.     The Motion for Reconsideration is Timely

      As an initial matter, the Union maintains that the Agency's motion for reconsideration is untimely. Under 5 C.F.R. § 2429.17, the time limit for filing a motion for reconsideration of an Authority decision is 10 days after the date the decision is served on the filing party. In addition, under 5 C.F.R. § 2429.21(a), if the last day of the period so computed is a Saturday, Sunday, or a Federal holiday, the period will run until the end of the next day which is not a Saturday, Sunday or Federal holiday. Finally, under 5 C.F.R. § 2429.22, if a document is served on a party by mail, 5 days will be added to the prescribed period. See Department of Housing and Urban Development, Region IX, San Francisco, California, 50 FLRA 575, 576 (1995). See also U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204, 1205 (1990) (calculating timeliness of exceptions to an arbitration award with respect to service by mail under section 2429.22, and with respect to allowances for week-ends and holidays under section 2429.21).

      In this case, the Authority's decision in National Mediation Board II was served on the Agency, by mail, on February 11, 2000. Therefore, when 10 days are added to this date, the motion for reconsideration would have been due on February 21. Nevertheless, February 21 was a Federal holiday (President's Day). Consequently, the 10 day period ran until February 22. Finally, when 5 days are added to this date to accommodate service by mail, the motion for reconsideration would have been due on February 27. As this date, however, was a Sunday, the motion for reconsideration was not due until February 28. This was the date on which the Agency's motion was filed. Accordingly, we conclude that the motion was timely.

B.     Reconsideration of National Mediation Board II is not Warranted

      Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. In U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 86-87 (1995), the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These have included situations where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; and (3) the Authority had erred in its remedial order, process, conclusion of law, or factual finding. Extraordinary circumstances may also be present when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in rendering its decision. See United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, MD v. FLRA, 7 F.3d 243, 245 (D.C. Cir. 1993). Mere disagreement with the Authority or attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California, and American Federation of Government Employees, Local 1857, 48 FLRA 543, 545 (1993). [ v56 p323 ]

      In National Mediation Board II, the Authority clarified the definition of the term "administer" as it is used in section 7112(c), stating that the term includes employees who are "responsible for managing, implementing, carrying-out and otherwise executing the provisions of" a labor relations statute covered by that section. According to the Agency, the three employees at issue here may not be included in the petitioned-for unit because they fall within this clarified definition. Reconsideration at 5.

      Contrary to the Agency's claim, the Authority did not, in National Mediation Board II, establish a new standard to determine whether an employee "administers" the Statute as that term is used in section 7112(c). Rather, the Authority simply clarified the previous construction of this term.

      The Agency points to no specific aspect of the clarified definition that it believes changes the result with respect to these employee. Instead, it simply repeats the clarified standard and reiterates the testimony presented to the RD, asserting that this testimony supports a finding that the employees administer the RLA.

      The RD, in his underlying decision, specifically found that the three employees challenged by the Agency were not administrative employees, describing their duties as follows:

[They] support the representation work and election work conducted by the mediators by docketing representation cases, creating ballots from templates, assisting in ballot counts, and preparing standard correspondence for the parties. However, these employees do not investigate representation disputes or certify a representative as a result of that investigation[.] In addition, while these employees may provide administrative support in secret elections, . . . their tasks do not constitute conducting an election by designating which employees are eligible to participate in this election or by establishing the rules to govern the election[.]

RD's Decision at 18.

      The Agency did not contest this finding in its original application for review and has provided no argument in its motion for reconsideration that these findings are erroneous. As the Agency has not asserted any specific legal or factual error in the prior proceedings, it has not asserted sufficient grounds for the grant of its motion for reconsideration. Accordingly, we deny the Agency's motion for reconsideration.

V.     Order

      The Agency's motion for reconsideration is denied.                                             


Chairman Wasserman, dissenting in part and concurring in part:

      Unlike my colleagues, I would grant the Agency's motion for reconsideration in the circumstances of this proceeding. Notwithstanding this difference, however, I agree that the three employees at issue here do not "administer" the RLA within the meaning of section 7112(c). Therefore, on reconsideration, I would reaffirm the Authority's decision in National Mediation Board II.

      In National Mediation Board II, the Authority refined the term "administer" as it is used in section 7112(c). In so doing, the Authority noted that the change would provide "a more comprehensive and meaningful framework" and "a more expansive definition." The Authority further noted that the new language would assist it in determining whether an employee is precluded from representation by a labor organization under section 7112(c). The parties to this proceeding have not previously been given an opportunity to assess the unit sought by the Union in light of the more comprehensive definition. Accordingly, it is my view that "extraordinary circumstances" warranting the Authority's reconsideration have been established. See United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, MD v. FLRA, 7 F.3d 243, 245 (D.C. Cir. 1993). I would, therefore, grant the Agency's motion.

      In arguing the merits of its motion, the Agency asserts that pursuant to the definition of "administer" set forth in National Mediation Board II, the three employees at issue here -- Angelopoulos, Stein and Femi - may not be included in the petitioned-for unit. In support of this assertion, the Agency sets forth a detailed description of the duties and responsibilities of these employees based on testimony presented at the hearing. According to the Agency, the testimony shows that these employees are "directly responsible for managing, implementing, carrying-out and otherwise executing the provisions of the RLA relating to representation elections." Motion for Reconsideration at 5. I do not, however, find this argument to be persuasive.

      The RD's findings regarding the duties of these employees, set forth by the majority above, fail to establish that they are responsible for more than the clerical [ v56 p324 ] aspects of the Agency's ballot control process. Moreover, the testimony cited in the Agency's motion is entirely consistent with the findings of the RD. The Agency has provided no additional information to establish that the RD's findings were incorrect. In these circumstances, I would not find that Angelopoulos, Stein and Femi "administer" the provisions of the RLA under the more comprehensive definition of this term set forth in National Mediation Board II. I, therefore, agree with the majority that these employees were properly included in the petitioned-for unit.



Footnote # 1 for 56 FLRA No. 45

   Chairman Wasserman's opinion, dissenting in part and concurring in part, is set forth at the end of this decision.


Footnote # 2 for 56 FLRA No. 45

   In its motion, the Agency also requested that National Mediation Board II be stayed pending the outcome of this proceeding. However, on April 14, 2000, the Agency's request for a stay was denied.


Footnote # 3 for 56 FLRA No. 45

   Because we find that the record in this case is sufficient to reso