[ v24 p183 ]
The decision of the Authority follows:
24 FLRA No. 25 NATIONAL BORDER PATROL COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union and DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE Agency Case No. 0-NG-664 23 FLRA No. 11 and Case No. 0-NG-682 23 FLRA No. 17 ORDER DENYING MOTION FOR RECONSIDERATION This matter is before the Authority because of the Agency's request for reconsideration of the Authority's Decisions and Orders on Negotiability Issues of August 13 and 14, 1986, in the above-entitled matters. /*/ The Union filed an opposition. In the decision in 23 FLRA No. 11, the Authority rejected the Agency's procedural arguments that a proposal concerning the calculation of administratively uncontrollable overtime (AUO) for employees engaged in collective bargaining negotiations exceeded the scope of impact and implementation bargaining, and that negotiations over the proposal were inappropriate due to a claimed pending question concerning representation (QCR). Contrary to the Agency's substantive claims, the Authority held that: The proposal did not conflict with 5 C.F.R. Section 550.151-.164; no compelling need existed for an Agency regulation, DOJ order 1551.4a, asserted as a bar to negotiations; and, the proposal was not inconsistent with section 7131(a) of the Statute. With respect to Union Proposal 1 in 23 FLRA No. 17, the Authority rejected the Agency's procedural argument that a negotiability determination was inappropriate since the Union had not complied with section 2424.5 of the Authority's Rules and Regulations. Additionally, as to any disagreement the parties may have regarding the scope of a party settlement agreement, or the scope of impact and implementation bargaining, the Authority concluded that such factual issues are appropriately resolved in proceedings other than the negotiability appeal. As to substantive issues, the Authority held that Union Proposal 1, concerning the calculation of AUO payments for employees on details, did not conflict with 5 U.S.C. Section 5545(c) or with 5 C.F.R. Section 550.151-.164, was not an attempt to negotiate over rates of pay and that a compelling need did not exist for the Agency regulation asserted by the Agency as a bar to negotiations. In its request for reconsideration of the two decisions, the Agency makes a number of procedural and substantive arguments. Specifically, as to its procedural arguments, the Agency claims that: 1) The Authority did not address in either decision the effect of the QCR stemming from a pending petition for exclusive recognition (RO); 2) the Authority's determination that the Union complied with section 2424.5 of the Authority Rules and Regulations in 23 FLRA No. 17 is inconsistent with the Authority's decision in U.S. Department of Justice, Immigration and Naturalization Service, and American Federation of Government Employees, Local 2724, 20 FLRA No. 86 (1985); and 3) the Authority is obligated under law to address all issues, factual as well as legal, arising in a negotiability appeal. As to 3, the Agency further states that, in any case, the questions raised in 23 FLRA No. 17 concerning the scope of the duty to bargain under a settlement agreement and in the context of impact and implementation bargaining, involve legal, not factual issues, and thus, should have been addressed. First, contrary to the Agency's claim that the Authority did not address the QCR raised by the RO petition in either decision, we note that the QCR was resolved and thus, no longer pending, prior to the issuance of either of the two decisions. In any event, the Authority specifically stated in 23 FLRA No. 11 that the question of how an employee's participation in a particular set of negotiations will affect that employee's future eligibility for premium pay is appropriately within the scope of ground rules for those negotiations pursuant to the agreement between the parties in settlement of an unfair labor practice charge. Second, the Agency's claim that the Authority misapplied our precedent to find that the Union properly complied with section 2424.5 of the rules in 23 FLRA No. 17 is without merit. The case relied upon by the Agency is inapposite. It involved an interpretation of section 7116(d) of the Statute which precludes matters being raised under both the ULP procedures of the Statute and under a negotiated grievance procedure. Section 2424.5 of the Authority's rules at issue in this case does not preclude a matter from being raised under both the negotiability and ULP procedures but only provides that the Authority will not ordinarily process the issue under both procedures simultaneously. Third and finally, the Agency's last procedural argument constitutes nothing more than a disagreement with the Authority's determination that the questions concerning the scope of the duty to bargain raised in 23 FLRA No. 17 involve, in addition to possible legal issues, factual determinations which, under the Authority's holding in American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984), are to be resolved in other appropriate proceedings. We turn now to the substantive arguments raised by the Agency in support of its request for reconsideration. Here the Agency argues, in essence, as follows: The Authority misinterpreted 5 U.S.C. Section 5545(c) and 5 C.F.R. Section 550.150-.164 governing the calculation of AUO; the proposals in both cases do constitute attempts to bargain over rates of pay in violation of law; there is a compelling need for the Agency's regulation to bar negotiation of both proposals; and the proposal in 23 FLRA No. 11 would violate section 7131(a) of the Statute and a decision of the Federal Labor Relations Council (FLRC) precluding payment of AUO for collective bargaining negotiations. The argument that the proposal in 23 FLRA No. 11 concerns bargaining over rates of pay merely constitutes an attempt to argue a matter not previously raised and will not be considered further. The remaining arguments raised by the Agency, including its reliance on a FLRC decision, in our view, simply constitute disagreements with the Authority's interpretation of the record and legal determinations that under applicable law, including the Statute, and Government-wide regulations the two proposals concerning the calculation period for AUO payments in specified circumstances were negotiable. Consequently, under these circumstances, the Agency has not established any "extraordinary circumstances" within the meaning of section 2429.17 of the Rules and Regulations. Accordingly, the Agency's request for reconsideration is denied. Issued, Washington, D.C., November 10, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In 23 FLRA No. 17 the Agency seeks reconsideration of the Authority's Decision and Order on proposal 1 only.