Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, New York Division of Military and Naval Affairs, Latham, New York

[ v56 p868 ]

56 FLRA No. 145

ASSOCIATION OF CIVILIAN TECHNICIANS
NEW YORK STATE COUNCIL

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
NEW YORK DIVISION OF MILITARY
AND NAVAL AFFAIRS
LATHAM, NEW YORK

0-NG-2373
(56 FLRA 444 (2000))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

September 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman Dale Cabaniss, Member.

I.     Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, New York Division of Military and Naval Affairs, Latham, New York, 56 FLRA 444 (2000) (New York ACT). In New York ACT the Authority dismissed the petition for review of the Union's proposed supplemental agreement. The Agency did not file an opposition to the Union's motion.

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to move for reconsideration of an Authority decision. For the reasons that follow, we find that the Union has not established the existence of extraordinary circumstances. We, therefore, deny the Union's motion for reconsideration.

II.     Authority's Decision in New York ACT

      In New York ACT, the Authority found that a supplemental agreement proposed by the Union was outside the duty to bargain under section 7106(a) of the Federal Service Labor-Management Relations Statute. [n1] That proposal had been offered in response to an Agency reorganization that was designed to convert the Northeast Sector to a military, rather than a civilian, organization.

      The Authority found that the Union had not requested that it sever any sections of the proposal. The Authority also found that the subject matter of the proposal and the relationship of the various sections presented an agreement that constituted an integrally related whole. In these circumstances, the Authority determined that it would not sever and separately consider the proposal's individual sections. Next, the Authority noted that as a result of the reorganization, the Agency's Northeast Sector had been organized to be supported solely by full-time Air National Guard (AGR) personnel. However, the Authority concluded that, if adopted, section 5 of the proposal would precipitate a change in the Agency's organization. More specifically, the Authority stated that:

building upon the preceding sections, section 5 would effectively require the Agency to convert full-time military positions in the Northeast Sector to positions that can be filled either by civilian technicians or AGR personnel. By imposing such a requirement, the agreement dictates how the Agency will be structured to accomplish its mission and functions.

Id. at 449 (citations omitted). The Authority accordingly concluded that section 5 of the proposal affected the Agency's right to determine its organization under section 7106(a)(1).

      Finally, the Authority noted that the Union did not claim that section 5 of the proposal constitutes a procedure or appropriate arrangement within the meaning of section 7106(b)(2) or (b)(3) or is negotiable at the election of the Agency under section 7106(b)(1). Therefore, pursuant to its determination to consider the agreement as an integrated whole and its finding that section 5 affects the Agency's right to determine its organization, the Authority concluded that the proposal was outside the duty to bargain.

III.     Union's Motion for Reconsideration

      In its motion for reconsideration, the Union argues that there are extraordinary circumstances warranting reconsideration of the Authority's decision in New York ACT. According to the Union, reconsideration should be granted because: (1) the court's decision in Overseas Education Association v. FLRA, 827 F.2d 814, 820 (D.C. Cir. 1987) (OEA), requires that "every `twist' of a [ v56 p869 ] party's legal argument be presented to the Authority before it is presented in court." Motion for Reconsideration at 1; (2) the Authority misunderstood the meaning of the proposal; and (3) the Authority's decision is contrary to law.

      In support of its motion, the Union first contends that section 5 "by itself" does not require the Agency to convert full-time military positions in the Northeast Sector to positions that can be filled by civilian technicians or AGR personnel. Id. at 2. The Union states that section 5 provides only that "[t]echnicians employed in the State of New York shall be among those eligible to apply for any announced, vacant [Northeast Sector] position that may be filled by a technician." Id. According to the Union, this means that "if a `position . . . may be filled by a technician,' then technicians statewide shall be eligible to apply." Id. (emphasis in original). In the Union's view, the language of this section does not restrict the Agency's determination of "whether" a position may be filled by a civilian technician. Id.

      The Union also argues that section 5 is a negotiable procedure. This argument, the Union asserts, was previously advanced in its response to the Agency's statement of position wherein it argued that the proposals, when considered together, "merely extend to those [Northeast Sector] positions that may be filled by technicians the selection process . . . provided by the Merit Promotion and Placement Plan, DMNA Pam 690-4 [Division of Military and Naval Affairs, Pamphlet Number 690-4]." Id. at 2 n.2. The Union also asserts that it previously argued that DMNA-690-4 "consists entirely of negotiable procedures." Id.

      With regard to the requirements of section 5, the Union maintains that it merely extends the statewide area of consideration found in DMNA Pam 690-4, para 3-5, to the filling of positions in the Northeast Sector. According to the Union, section 5 merely provides that when a vacancy may be filled by a technician, technicians throughout New York State have a right to: "(a) send applications to the [A]gency[;] (b) have the [A]gency consider the applications, and[;] (c) receive [A]gency decisions as to whether they will be hired." Id. The Union claims that "this is a negotiable procedural right." Id. at 2.

      The Union also maintains that the Authority misunderstood the meaning of sections 3 and 4. The Union notes that these are the sections on which section 5 builds. Unlike sections 4 and 5, the Union points out that section 3 of the proposal incorporates an Agency regulation, ANGI 36-101. [n2] According to the Union, if section 3 were adopted, and ANGI 36-101 was not changed, section 3 "would `require the Agency to convert full-time military positions in the Northeast Sector to positions that can be filled either by civilian technicians or AGR personnel.'" Motion for Reconsideration at 4 (emphasis in original). The Union contends, however, that this would not violate management's right to determine its organization because section 3 "imposes no substantive requirements independently of the regulation." Id. The Union maintains that "[t]o be free of the substantive requirements stated in ANGI 36-101, and therefore in [s]ection 3, the [A]gency need only amend ANGI-36-101." Id.  [n3] 

      As concerns section 4, which requires that all vacancies for positions identified in section 3 be posted by joint announcement for both technicians and AGR personnel, the Union argues that it is purely procedural and, therefore, negotiable under section 7106(b)(2). In particular, the Union asserts that: a requirement that an agency put information on one document instead of two is procedural; nothing in section 4 restricts the Agency's determination as to what information would appear on the document; and nothing in section 4 restricts the Agency's determination of whether a position may be filled by a civilian technician.

      Finally, the Union asserts that the Authority misread DMNA Pam 690-4, which is incorporated into section 7. In particular, the Union notes the Authority's finding in New York ACT that the specific sequence of steps, coupled with the relevant regulatory requirements:

results in the likely submission of candidate lists comprised only of civilian technicians. While the selecting official could reject these candidates, cancellation of the vacancy and reposting of the position would require application of the same procedures, ultimately with the same result.

New York ACT, 56 FLRA at 447. Nevertheless, the Union submits that this determination is incorrect. According to the Union, under DMNA 690-4, para 6-1(b), rejection of technician candidates would not result in the cancellation of the vacancy and reposting of the position. Rather, the Union claims that it would result in the referral of AGR candidates. Therefore, the Union maintains that this regulation does not present an insurmountable barrier to consideration of AGR personnel. [n4]  [ v56 p870 ]

      In sum, the Union maintains that although the individual sections of its proposal concern the Agency's organization, they do not violate section 7106(a) because: (1) they are negotiable procedures "built upon a demand that the [A]gency comply with its own regulation; and (2) they neither create a substantive restriction independent of the regulation, nor restrict the [A]gency's power to amend the regulation." Motion for Reconsideration at 5. [n5] 

IV.     Analysis and Conclusions

      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).

A.     The Union does not Challenge the Authority's Determination to Consider the Proposal as an Integrated Whole

      In New York ACT, 56 FLRA 444, the Authority carefully examined the various sections of the supplemental agreement and concluded that the proposal should be treated as an integrated whole. See New York ACT, 56 FLRA at 448. In so concluding, the Authority first noted that the Union had not requested that it sever any individual sections of the proposal. The Authority then applied well-settled negotiability precedent as set forth in such cases as National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 39 FLRA 762, 765 n.* (1991) (Authority generally does not consider parts of a proposal separately unless the parties specifically so request), National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 54 FLRA 1302, 1311 (1998), review denied sub nom. National Association of Government Employees, Local R14-23 v. FLRA, No. 98-1520 (D.C. Cir. Sept. 21, 1999) (Authority declines to sever parts of a proposal where the proposal presents an integrally linked package), and Professional Airways Systems Specialists, District No. 6, PASS/NMEBA and U.S. Department of the Navy, U.S. Marine Corps, Marine Corps Air Station, Cherry Point, North Carolina, 54 FLRA 1130, 1131 (1998) (if any portion of a proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain). Based on this and other similar precedent, the Authority determined that the various sections of the proposal did not present distinct legal or factual questions but, instead, constituted an integrally related whole. The Authority further determined, pursuant to its finding that section 5 of the proposal affected the Agency's right to determine its organization, that the entire proposal was outside the duty to bargain.

      The Union's motion for reconsideration does not dispute the Authority's decision not to sever or separately consider the proposal's individual sections. The Union also does not challenge the case law upon which the Authority relied. Instead, the Union argues that the proposal is within the duty to bargain based on a section by section analysis. Such an argument is, however, unavailing in the context of the Authority's decision not to sever the proposal, except to the extent the Union claims that the Authority incorrectly analyzed section 5. We, therefore, find that the Union's section by section challenge to the Authority's decision in New York ACT fails to establish extraordinary circumstances warranting reconsideration. [ v56 p871 ]

B.     The Union's Section 7106(b) Claims Concerning the Proposal, When Considered as an Integrated Whole, were Unsupported

      In New York ACT, the Union argued that the proposal, when considered as an integrated whole, "addresses the numbers, types, and grades of bargaining unit employees and technician positions assigned within [the Northeast Sector]." See id., 56 FLRA at 446. The Union further argued that the proposal "establishes [A]gency procedures and makes appropriate arrangements for bargaining unit employees who may be affected by [A]gency actions." Id. The Union did not, however, advance any argument in support of these claims. Consequently, they were only bare assertions which, pursuant to Authority precedent, are not considered. See, e.g., National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 55 FLRA 1081, 1088 (1999) (Proposal 4).

C.     The Union's Claim Under Section 7106 Concerning Section 5 is not Properly Before Us

      In its motion for reconsideration the Union asserts that it argued in New York ACT, as it has in this proceeding, that section 5 of the proposal constitutes a negotiable procedure. We find no merit in this assertion.

      A review of the record clearly shows that the Union's argument was not advanced in connection with section 5. Instead, the Union argued, as it now argues on reconsideration, that the "Plan" -- the merit promotion and placement plan set forth in DMNA Pam 690-4 -- "consists entirely of negotiable procedures." Motion for Reconsideration at 2 n.2 (quoting Union's Response to Agency Statement of Position at 6, n.2). Other than the bare assertion referenced in the preceding section, the Union did not argue that section 5 of the proposal constituted a negotiable procedure. Accordingly, we find that it has failed to establish extraordinary circumstances warranting reconsideration.

D.     The Union's Claims with respect to DMNA Pam 690-4 and ANGI 36-101 do not Change the Proposal's Meaning

      The Union also challenges the Authority's assessment of two regulations -- DMNA Pam 690-4 and ANGI 36-101 -- that have been incorporated into the proposal. According to the Union, the Authority's interpretation of these regulations was incorrect. The Union, therefore, effectively contends that the Authority misunderstood the proposal's meaning.

      With respect to DMNA Pam 690-4, the Union contends that rejection of technician candidates by the selecting official does not result in cancellation of the vacancy and reposting of the position. Rather, the Union asserts that rejection of technician candidates results in the referral of AGR candidates. The Union, consequently, maintains that this regulation does not create an "insurmountable barrier" to the consideration of AGR personnel. Motion for Reconsideration at 6.

      DMNA Pam 690-4 is a regulation promulgated by the state of New York which sets forth the personnel merit promotion and placement plan applicable to civilian technicians in the New York Air National Guard. In New York ACT the Authority explained how this regulation would impact the Agency's AGR personnel. In this connection, the Authority found:

the state regulation dictates that eligible candidates be referred to the selecting official in a particular sequence, beginning with an initial category -- Category I -- which only includes civilian technicians. In addition, section 6-1.c of the state regulation provides that `[i]f there are fewer than three qualified applicants in Category I, then qualified applicants from Category II, III, and/or IV will be forwarded to the selecting official, in sequential order, to provide at least three qualified applicants.' Like Category I, Category II is comprised of only civilian technicians. This establishes that the minimally required referral may only include civilian technicians if there are three qualified civilian applicants. In fact, under this procedure, AGR personnel would not get referred to the selecting official until all qualified applicants had been referred from Categories I and II.

Id., 56 FLRA at 447.

      Consistent with this interpretation, the Authority concluded that the specific sequence of steps of the proposal, coupled with the relevant regulatory requirements, would result in the likely submission of candidate lists comprised only of civilian technicians. Although the Authority recognized that the selecting official could reject these candidates, the Authority further concluded that "cancellation of the vacancy and reposting of the position would require application of the same procedures, ultimately with the same result." Id.

      The Authority's statement in New York ACT that cancellation and reposting of the vacancy would yield the same results does not imply that the Authority determined that cancellation must occur. The Authority's [ v56 p872 ] decision expressly recognizes the possibility that AGR personnel may ultimately be referred, but not "until all qualified applicants had been referred from Categories I and II." Id. The reference to "cancellation," does not alter the regulatory requirements set forth in DMNA Pam 690-4, which require the Agency to first consider applicants in Category I and II -- which are comprised only of civilian technicians -- before considering other categories that encompass AGR personnel. In these circumstances, we conclude that our interpretation of the meaning of this regulation, as well as its impact on the Union's proposal, remains unaffected.

      The Union also contends that ANGI 36-101, an Air National Guard regulation, would not create a contractual requirement for the establishment of permanent positions for civilian technicians because the Agency is free to amend the regulation to change its substantive requirements. In support of this contention, the Union cites American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1615 (1993) (Proposal 23) (proposals that place agency policies or procedures in an agreement for informational purposes and which do not preclude the agency from changing the policies or practices during the life of the agreement are within the duty to bargain). The Union acknowledges, however, that a permanent change in the Agency's organizational structure would occur if ANGI 36-101 were not changed. Motion for Reconsideration at 4.

      While it is true that the Agency does have the ability to amend ANGI 36-101, such an option does not affect the present meaning ascribed to the proposal before us. In addition, as we discussed in section A. above, the Union's argument with respect to ANGI 36-101 is unavailing in the context of the combination of the Authority's decision not to sever the proposal and the infirmity of section 5. As such, we conclude that the Union's claim with regard to ANGI 36-101 does not establish extraordinary circumstances warranting reconsideration.

V.     Order

      The Union's motion for reconsideration is denied.


APPENDIX

The disputed sections of the proposal proposed by the Union are as follows:

Purpose
1.     This agreement establishes conditions of employment for bargaining unit technicians employed within the Northeast Air Defense Sector . . . . The agreement addresses the numbers, types, and grades of bargaining unit employees and technician positions assigned within [the Northeast Sector]. It establishes agency procedures and makes appropriate arrangements for bargaining unit employees who may be adversely affected by agency actions.
Types of [Northeast Sector] Positions
3.     Each position within [the Northeast Sector] shall appear on the [Northeast Sector] Full-time Support Personnel Manpower Document (SPMD). The types or categories of positions on the SPMD, and the positions that may be filled by technicians, shall be determined in accordance with ANGI 36-101 para 2.2.1 (29 December 1993) and changes thereto. The SPMD shall identify the positions that may be filled by technicians. Whether the number of positions that may be filled by technicians shall be a majority of the positions on the SPMD shall be determined in accordance with ANGI 36-101 para 2.2.1.2 (29 December 1993) and changes thereto.
Joint Vacancy Announcements
4.     Any vacant position on the [Northeast Sector] SPMD that may be filled by a technician and which the agency determines to fill through competitive procedures shall be announced by joint announcement. Both technician and AGR duty information (military title, grade, qualifications, etc.) shall appear on the announcement.
Eligibility to Include New York Technicians
5.     Technicians employed in the State of New York shall be among those eligible to apply for any announced, vacant [Northeast Sector] position that may be filled by a technician.
General or Specialized Experience Required for Basic Eligibility
6.     The qualifications and other selective placement factors determining a technician's basic eligibility for a [Northeast Sector] position that may be filled by a technician shall not include general or specialized experience not used in determining an AGR member's basic eligibility for that position. [ v56 p873 ]
Selection from Among Eligible Applicants
7.     Selection for a vacant [Northeast Sector] position that may be filled by a technician shall be from among eligible applicants, and in accordance with DMNA Pamphlet Number 690-4 (1 July 1994).
Technician Rights in Reduction in Force
8.     In any reduction in force (RIF) each technician employed within [the Northeast Sector] shall have priority over all AGR members for retention in any [Northeast Sector] position that may be filled by a technician for which the technician meets the qualifications and selective placement factors for basic eligibility.

DMNA Pam 690-4, para 6-1., entitled "Referral of Candidates," provides, as relevant here:

      b.     For bargaining unit positions qualified applicants will be referred to the selecting official in the following sequence:

(1)     Category I.All excepted service technicians in the New York Army Guard for Army technician vacancies and all excepted technicians in the New York Air National Guard for air technician vacancies, working at the location specified in the job announcement where the vacancy exits.
(2)     Category II.All currently employed excepted service technicians in either the New York Army or New York Air National Guard.