Association of Civilian Technicians, Treasure State Chapter #57 (Union) and United States Department of Defense, National Guard Bureau, Montana National Guard, Helena, Montana (Agency)
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57 FLRA No. 18
ASSOCIATION OF CIVILIAN TECHNICIANS
TREASURE STATE CHAPTER #57
UNITED STATES DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MONTANA NATIONAL GUARD
(56 FLRA 1046 (2001))
ORDER DENYING MOTION
April 3, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members.
I. Statement of the Case
This case is before the Authority on the Union's motion for reconsideration of the Authority's decision in 56 FLRA 1046 (2001). 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 request reconsideration of an Authority decision. For the following reasons, we conclude that the Union has not established that extraordinary circumstances exist, and we deny the Union's motion.
II. Decision in 56 FLRA 1046
In ACT, Treasure State Chapter #57, 56 FLRA 1046 (2001), the Authority held that the disputed provision -- requiring the Agency to use competitive procedures to fill certain vacancies -- is contrary to management's right to select from any appropriate source under § 7106(a)(2)(C) of the Federal Service Labor-Management Relations Statute (the Statute). In particular, the Authority held that the provision affects management's right under § 7106(a)(2)(C) and does not constitute a procedure under § 7106(b)(2). The Authority determined that the provision "would not merely require management to use competitive procedures in initially considering candidates for vacant positions," but, with certain exceptions, "would restrict management to filling vacancies through competitive procedures." Id. at 1048 (emphasis in original). In this connection, the Authority stated that "the provision would not preserve management's right to ultimately select from a different source, including noncompetitive reassignment." Id.
III. Union's Motion for Reconsideration
The Union asserts that "the Authority's decision is contrary to law." Motion for Reconsideration at 1.
The Union argues that the Authority erred by holding that "noncompetitive reassignment" constitutes a "source" within the meaning of § 7106(a)(2)(C) of the Statute. In this connection, the Union contends that a "source" is a "person or group of persons," not a process, such as noncompetitive reassignment, for selecting an individual. Id. According to the Union, the Authority's error "precludes any selection procedure from being mandatory." Id. at 2. Also according to the Union, the provision is a negotiable procedure because it "allows management to consider and to select any person, including any current employee whose selection and appointment would constitute a reassignment." Id. at 3. The Union argues that the Authority's decisions in NTEU, 7 FLRA 275, 284-85 (1981), and NTEU, Chapter 55, 15 FLRA 820, 822-23 (1984), "are not to the contrary." Motion for Reconsideration at 3.
IV. Analysis and Conclusions
Under § 2429.17 of the Authority's Regulations, a party seeking reconsideration of a final decision or order of the Authority bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995). The Authority has identified limited situations in which extraordinary circumstances have been found to exist, including 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; or (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. See id. at 85-87. Extraordinary circumstances have also been found where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in rendering its decision. See id. at 87. The moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. See id. [ v57 p54 ]
For the following reasons, the Union has not established the requisite extraordinary circumstances in this case.
In ACT, Treasure State Chapter #57, 56 FLRA at 1048, the Authority stated that:
[T]he provision . . . would preclude the Agency from selecting an individual for a vacant position unless that individual is available for selection through competitive procedures. As such, the provision would not preserve management's right to ultimately select from a different source, including noncompetitive reassignment.
Read in context, the second sentence clearly conveys that the provision would preclude the Agency from selecting individuals who are not available for selection through competitive procedures and are available only through noncompetitive reassignment. Thus, the provision precludes use of a particular procedure -- noncompetitive reassignment -- as well as selection of the individuals who are available only through that procedure. Whether or not noncompetitive reassignment procedures themselves constitute "sources," the provision affects the Agency's right to select from any appropriate source. As such, the Union's motion does not warrant reconsideration of the Authority's decision on this point.
The Union's motion also does not establish that reconsideration is warranted because the Authority's decision would preclude any selection procedure from being mandatory. The Authority expressly recognized that selection procedures can be mandatory, provided the procedures do not restrict the Agency's right to make selections from any appropriate source. See ACT, Treasure State Chapter #57, 56 FLRA at 1048 (citing NTEU, 7 FLRA at 284-85, and NTEU, Chapter 55, 15 FLRA at 822-23). As the provision in this case -- unlike the proposals involved in NTEU and NTEU, Chapter 55 -- precludes management from selecting individuals who are not available as a result of application of the competitive procedures, the Authority's decisions in those cases are distinguishable and, as stated in ACT, Treasure State Chapter #57, the Union's reliance on those cases is misplaced.
Finally, we note the Union's contention that the provision "allows consideration of all candidates, from any source." Motion for Reconsideration at 4. However, the Union does not claim that employees who are not available through application of the competitive selection procedures are "candidates" that may