American Federation of Government Employees, National Joint Council of Food Inspection Locals (Union) and United States Department of Agriculture, Food Safety and Inspection Service, Washington, D.C. (Agency)

[ v57 p764 ]

57 FLRA No. 167

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL JOINT COUNCIL
OF FOOD INSPECTION LOCALS
(Union)

and

UNITED STATES DEPARTMENT OF
AGRICULTURE, FOOD SAFETY AND
INSPECTION SERVICE, WASHINGTON, D.C.
(Agency)

0-NG-2636-REC

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

April 30, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on the Union's motion for reconsideration of the Authority's order dismissing the Union's petition for review. The Agency filed 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 order. For the following reasons, we conclude that the Union has failed to establish the existence of extraordinary circumstances. We, therefore, deny the Union's motion for reconsideration.

II.     Authority's Order

      On November 16, 2001, the parties filed a Joint Petition for Binding Arbitration with the Federal Service Impasses Panel (Panel) to resolve an impasse that had developed in negotiations for a successor collective bargaining agreement. Pursuant to § 2471.3(b)(4) of the Panel's Regulations, the parties' request included a statement from the Agency entitled "Agency Issues Concerning Duty to Bargain," addressing which of the proposals to be submitted to the arbitrator contained questions concerning the duty to bargain. [n1] The Panel approved the parties' request on November 26. [n2] 

      On December 3, the Union filed a petition for review with the Authority. The Union maintained that the Agency's statement to the Panel could be interpreted as an allegation of nonnegotiability within the meaning of Part 2424 of the Authority's Regulations. The Union requested that the Authority either: (1) dismiss the Union's appeal as not meeting the requirements of Part 2424 of the Authority's Regulations if, as relevant here, the Authority determined that the Agency's statement to the Panel did not constitute an allegation of nonnegotiability; or (2) resolve the Union's appeal if the Authority determined that the requirements of Part 2424 were met.

      On March 11, 2002, the Agency filed with the Authority a motion to withdraw its statement to the Panel entitled "Agency Issues Concerning Duty to Bargain." The Agency explained that its submission had not been intended as an allegation of nonnegotiability, but was submitted solely to comply with the Panel's regulations. To the extent that the submission served as the basis for the Union's petition for review, the Agency requested that its declaration of nonnegotiability be withdrawn.

      The Authority dismissed the Union's petition for review without prejudice. In so doing, the Authority stated that since the Agency had withdrawn its allegation of nonnegotiability which was the subject of the Union's petition, there was no longer an issue as to whether the proposals in the case were within the duty to bargain under § 7117 of the Federal Service Labor-Management Relations Statute (the Statute).

III.     Positions of the Parties

A.     Union's Motion for Reconsideration

      The Union asserts that the Authority's order dismissing its petition for review deprives it of its statutory right to decide the forum, as well as the timing, for litigating the scope of bargaining issues raised by this case. The Union also maintains that the Statute gives it the right to have scope of bargaining disputes decided by the Authority, subject to review by the courts of appeals. Further, the Union asserts that when an agency fails to [ v57 p765 ] defend its position in a negotiability dispute, the Authority should resolve the merits of the dispute based on the record before it. Finally, the Union contends that to permit the Agency to withdraw its scope of bargaining allegations, knowing that it intends to later re-file them, would be inconsistent with the time limits set forth in § 7117(c) of the Statute.

B.     Agency's Opposition

      The Agency argues that the dismissal of the Union's petition for review is consistent with Authority precedent and should not be disturbed. The Agency asserts that under such precedent, when an agency withdraws its allegation of nonnegotiability, the negotiability appeal becomes moot and the Authority dismisses the appeal without addressing the proposals at issue.

      In addition, the Agency submits that none of the Union's statutory rights have been denied because there are no negotiability issues pending before the Authority. The Agency notes that the Union can resubmit any negotiability issues that the interest arbitrator cannot resolve. As such, the Agency contends that the Union's motion for reconsideration should be denied.

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 AFB, Ill., 50 FLRA 84, 85 (1995). The Authority has found that extraordinary circumstances exist, and has granted reconsideration, in a limited number of situations, including where the Authority had erred in its remedial order, process, conclusion of law, or factual finding. A moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. Id. at 85-87.

      The Union's motion for reconsideration is predicated on the assertion that, once a petition for review of an agency's allegation of nonnegotiability has been filed, an agency's withdrawal of its allegation cannot deprive the union of the right to have the proposals at issue decided by the Authority. However, the Authority has long held that once an agency has withdrawn its allegation of nonnegotiability concerning a union's proposal, there is no longer an issue as to whether the proposal is within the duty to bargain. In these circumstances, the Authority does not consider the proposal and dismisses the petition. See, e.g., AFGE, 37 FLRA 914, 918 (1990); AFGE, AFL-CIO, Council of Locals No. 214, 25 FLRA 737, 738 (1987); AFGE, AFL-CIO, Local 1285, 16 FLRA 396 (1984).

      Consistent with the foregoing, we c