United States, Environmental Protection Agency (Agency) and American Federation of Government Employees, AFL-CIO (Petitioner/Union)

[ v61 p806 ]

61 FLRA No. 161

UNITED STATES
ENVIRONMENTAL
PROTECTION AGENCY
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Petitioner/Union)

CH-RP-05-0007
(61 FLRA 417 (2005))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

September 20, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This case is before the Authority on the Union's motion for reconsideration of the Authority's decision in United States Environmental Protection Agency, 61 FLRA 417 (2005) (EPA). The Agency filed a reply to the Union's 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 Union has failed to establish that extraordinary circumstances exist. Accordingly, we deny the Union's motion.

II.      Background and Authority's Decision

      In EPA, 61 FLRA at 417, the Authority denied the Union's application for review. Specifically, the Union claimed that the position of an Equal Employment Specialist (specialist) should be included in the bargaining unit and that the Regional Director (RD) committed prejudicial error when he first determined that a hearing was warranted to resolve this issue only to render a decision without holding a hearing.

      The Authority rejected the Union's assertions and determined that:

[A]n RD is required under the Authority's Regulations to conduct a hearing only where "a material issue of fact exists[,]" or "there is reasonable cause to believe a question exists regarding unit appropriateness," which is not before us. 5 C.F.R. § 2422.30(b); United States Dep't of the Army, United States Army Aviation Ctr., Fort Rucker, Ala., 60 FLRA 771, 773 (2005) (Fort Rucker) (Absent a question involving an issue of material fact, an RD is not required to hold a hearing.) Here, while the RD originally notified the parties that a hearing was warranted, after beginning the investigation the RD found that "there are sufficient facts not in dispute to form the basis for a decision in this matter." Union's Attachment 10, RD's June 8, 2005, Letter to the Parties at 1. The RD arrived at this conclusion "after investigation," and the Regulations simply require the RD to make such investigation as the RD "deems necessary," which the RD did in this matter. 5 C.F.R. § 2422.30(a). Consequently, the Union has not established that the RD's failure to hold a hearing constitutes a prejudicial procedural error under 5 C.F.R. § 2422.32(c)(ii). See, e.g., Fort Rucker, 60 FLRA at 773.

EPA, 61 FLRA at 420. Accordingly, for the reasons expressed above we determined that the Union failed to show that it was entitled to a hearing and, therefore, we dismissed the Union's application for review.

III.      Positions of the Parties

A.      Union's Motion for Reconsideration

      The Union states that it does not challenge the RD's "discretion under 5 C.F.R. 2422.30(a) to conduct an investigation into its petition or his discretion under the regulations to hold a hearing," but rather challenges the RD's "conduct" in so much as that conduct is inconsistent with § 7111(b)(2) where the Union "was denied the right to participate in the hearing" even though there was an outstanding notice of hearing. [n1]  Motion at 3. Specifically, the Union claims under § 7111(b)(2) that the RD is required to hold a hearing "if there is a reasonable cause to believe that a question of representation [ v61 p807 ] exists." Id. As such, the Union claims that "[o]nce the Regional Director [originally] determined that a hearing was warranted and issued a notice pursuant to § 2422.30(b), he was without discretion pursuant to the clear language of § 7111(b) not to conduct the hearing as long as his notice of hearing remained valid and in effect." Id. at 4. Accordingly, it argues that in this case because the RD made a determination that a hearing was warranted, the Union was entitled to participate in a hearing under § 7111(b)(2).

B.      Agency's Response

      The Agency argues that § 7111(b)(2) does not require a hearing unless an RD finds "reasonable cause" that a "question of representation exists." Response at 4. It states that after investigation, the RD determined that such hearing was unnecessary. Id. Accordingly, it argues that because § 7111(b)(2) does not compel the RD to hold a hearing, the RD was within the scope of his discretion when he determined that such a hearing was unnecessary.

IV.      Analysis and Conclusions

      Under § 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 United States 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).

      Here, the Union raises for the first time a claim that it is statutorily entitled to a hearing under 5 U.S.C. § 7111(b); below it argued it was entitled to a hearing under "FLRA regulations." See, e.g., Union's Application at 6. The Authority has determined that such claims will not be considered where they could have been previously raised but are raised for the first time on a motion for reconsideration. See e.g., United States Dep't of Health and Human Services, Office of the Asst. Sec'y. for Mgmt. and Budget, Office of Grant and Contract Fin. Mgmt. Div., of Audit Resolution, 51 FLRA 982, 984 (1996); United States Dep't of Health and Human Services, Social Security Admin., Kansas City, Mo., 38 FLRA 1480, 1484 (1991). Accordingly, as the Union could have raised this issue, but failed to do so, the Union's request does not present extraordinary circumstances warranting reconsideration of the Authority's decision in EPA, 61 FLRA 417 under § 2429.17 of the Authority's Regulations. [n2] 

V.      Order

      The Union's motion for reconsideration is denied.



Footnote # 1 for 61 FLRA No. 161 - Authority's Decision

   5 U.S.C. § 7111(b)(2) states in pertinent part, "the Authority shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing[.]"


Footnote # 2 for 61 FLRA No. 161 - Authority's Decision

   Additionally, to the extent the Union continues to claim that it was harmed by the RD's decision to resolve the petition without a hearing even where there was an outstanding notice of hearing, as this issue was resolved in EPA, 61 FLRA at 420, we will not address it