Association of Civilian Technicians, Wichita Air Capitol Chapter (Union) and United States, Department of Defense, National Guard Bureau, Kansas National Guard, Topeka, Kansas (Agency)

[ v58 p483 ]

58 FLRA No. 119

ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
KANSAS NATIONAL GUARD
TOPEKA, KANSAS
(Agency)

0-NG-2581
(58 FLRA 28 (2002))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

April 18, 2003

_____

Before the Authority: Dale Cabaniss, Chairman; 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 of its proposal in Association of Civilian Technicians, Wichita Air Capitol Chapter, 58 FLRA 28 (2002) (ACT, Wichita) (Chairman Cabaniss concurring). The Agency did not file an opposition to the Union's motion.

      For the reasons that follow, we deny the Union's motion.

II.     Decision in 58 FLRA 28  [n1] 

      In ACT, Wichita, the Authority found that the Union's proposal concerned "terms and conditions" of military service and, as such, was prohibited under 10 U.S.C. § 976(c). In arriving at this conclusion, the Authority noted that paragraph 5 of the Union's proposal conditioned the assignment of military training duties for employees working in a civilian status on a variety of requirements including impact and implementation bargaining and 30 days' notice to the affected employees. [n2]  As a result the Authority concluded that paragraph 5 of the proposal would require the Agency to "`negotiate . . . concerning the terms or conditions of service' of members of the armed forces and, as a result, runs afoul of [10 U.S.C.] § 976(c)." ACT, Wichita, 58 FLRA at 31. As such, the Authority found that the proposal was inconsistent with 10 U.S.C. § 976(c) and thus, outside the duty to bargain under § 7117 of the Federal Service Labor-Management Relations Statute (the Statute).

III.     Motion for Reconsideration

      The Union argues that this case warrants reconsideration because: (1) the Authority's decision is contrary to law; and (2) the Authority's denial of severance is contrary to law and departs without explanation from past precedent. Motion at 1.

      In support of the above, the Union contends that the Authority's interpretation of 10 U.S.C. § 976(c) is erroneous as it is overly broad. Specifically, it argues that duties assigned during time of civilian employment cannot be found to be terms or conditions of military service under 10 U.S.C. § 976(c) simply because those duties have a military nature or subject. In this respect, the Union argues that the prohibitions under 10 U.S.C. § 976(c) only apply when technicians are actually serving in an active duty (military) status. Motion at 2-3. Moreover, it maintains that the Authority erred by relying on the reasoning expressed in Association of Civilian Technicians, Schenectady Chapter v. FLRA, 230 F.3d 377 (D.C. Cir. 2000) in formulating our decision. It argues that unlike the proposal in this matter, the proposal there concerned duties to be performed while on military time, and that alone was the reason it was found to be outside the duty to bargain. Motion at 5, 6. The Union contends that its position is supported by decisions regarding the wearing of a military uniform while in a civilian employment status. According to the Union, those decisions hold that such wear is a term or condition that is negotiable despite the prohibitions under 10 U.S.C. § 976(c). The Union also asserts that its position is also supported by a decision holding that a proposal requiring the inclusion of any "Military Occupational Specialty" in position descriptions is a civilian matter within the duty to bargain. Motion at 4.

      Finally, the Union contends that the Authority's decision to deny its requested severance was contrary to law, regulation and an unexplained departure from our [ v58 p484 ] past precedent. Id. at 9. The Union argues that it has either sufficiently explained how each requested severed proposal would operate in its Petition for Review or such explanation was unneeded as it was clear by the language of the proposals. As such, it maintains that its severance request met the Authority's "distinct factual questions" standard as set forth in Association of Civilian Technicians, Tony Kempenich Memorial, Chapter 21, 56 FLRA 526, 534 (2000), petition for review denied, 269 F.3d 1119 (D.C. Cir. 2001) (Tony Kempenich); Association of Civilian Technicians, Inc., Rhode Island Chapter, 55 FLRA 420 (1999). Moreover, it argues that the Authority's departure from this standard without explanation renders our decision arbitrary and capricious. Motion at 9 (citing Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 47 (1983); Greyhound Corp. v. Interstate Commerce Commission, 551 F.2d 414 (D.C. Cir. 1977); Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970)).

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 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 contends that only duties assigned during military time are outside the duty to bargain under 10 U.S.C. § 976(c). Motion at 3. However, this same argument was addressed in ACT, Wichita, 58 FLRA at 30-31, and the Union has not established extraordinary circumstances warranting reconsideration of that decision.

      Finally, for the reasons expressed in ACT, Wichita, we find that the Union failed to comply with our regulatory requirements to support its request for severance with an explanation as to "how each severed portion of the proposal . . . may stand alone, and how such severed portion would operate." ACT, Wichita, 58 FLRA at 29 (citing 5 C.F.R. § 2424.2(h); 2424.22(c); 2424.25(d)). This is consistent with our determination in ACT, Wichita Air Capitol Chapter, 57 FLRA 939, 941 (2002), reconsideration denied, 58 FLRA 310 (2003), petition for review filed as to other matters, No. 03-1083 (D.C. Cir. March 21, 2003), in which we found that the Union's request for severance in that matter failed to meet our regulatory requirements given the lack of explanation as to how the requested severed portions of that proposal would operate (citing 5 C.F.R. § 2424.22(c)). Additionally, as we noted in ACT, Wichita Air Capitol Chapter, 58 FLRA 310, 312, under our current regulations a severance request must be accompanied by an explanation as to how each of the proposed severed proposals would operate, even though under our prior practice such showing was not necessary. See Tony Kempenich, 56 FLRA at 533-34 (2000). As such, based upon our review of the Union's entire motion for reconsideration, the Union has failed to show any extraordinary circumstances warranting reconsideration of ACT, Wichita, 58 FLRA 28 (2002).

V.     Order

      The Union's motion for reconsideration is denied.


Appendix

Proposal

9-2b MILITARY TRAINING DUTY:
1. For purposes of this Section, "military training duty" is duty that is (1) required by a written policy or regulation that is applicable to members of the National Guard irrespective of whether they are employees, (2) designed to impart or to measure proficiency in a military skill, and (3) required by written policy or regulation to be performed for a specified period of time, or with a specified frequency, or until a specified level of proficiency is achieved. Examples of military training duties are rifle qualification and training in the wear of garments designed to afford protection from chemical weapons (Chem Gear).
2. The agency shall include in an employee's written position description each military training duty that the agency expects to assign, as work, to that employee. The agency shall provide contemporaneous written notice to each employee of any amendment of the employee's position description to include a military training duty. The notice shall include the following statement: "Agency representatives are available to meet with you, any other similarly-affected [ v58 p485 ] employees, and your Chapter representatives to discuss this amendment, to answer questions, and to listen to any concerns that may be expressed regarding this change. If you would like to have a meeting for this purpose, contact your chapter representatives." Agency representatives shall be available to meet with employees and chapter representatives for this purpose. A military training duty shall be included in an employee's position description no less than four months before that duty is assigned to the employee, unless the agency delivers to the employee and the chapter a written statement of facts and reasons explaining why the agency did not do so.
3. The agency shall provide the chapter a list of all bargaining unit position descriptions that include any military training duties. The list shall identify which military training duties are included in each position description. The agency shall provide the chapter contemporaneous written notice of any change to the listed information. The notice shall include the facts and reasons stated to any bargaining unit employee as the explanation for including a military training duty in the employee's position description less than four months before the employee was assigned the duty.
4. Upon request by the chapter, the agency shall negotiate the impact and implementation of military training duty assigned to any employee as work.
5. If the agency assigns an employee to perform, as work, any military training duty, the agency shall assign the work by written order that: (1) identifies the employee by name and position; (2) identifies and quotes the portion of the written policy or regulation that requires performance of the duty and specifies the period of time, frequency, or level of proficiency required, (3) describes the specific military skills to be imparted or military proficiency to be tested; (4) states the date, time, and place the duty will begin, and the expected duration of the duty for each separate period of duty time; (5) is delivered to the employee no less than thirty days before the duty will begin, unless the order states facts and reasons explaining why the agency is providing shorter notice; (6) describes the type, severity, and relative frequency of occurrence of any injury or illness that is known to have resulted from past performance of the duty or that is foreseeable; (7) describes precautionary measures that the agency will take and that the employee may take to reduce the risk of injury; (8) describes measures that the agency will take to provide prompt, effective treatment in the event injury does occur; (9) includes the following statement: "Agency representatives are available to meet with you, any other similarly-affected employees, and your chapter representatives to discuss this assignment of wor