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U.S. Federal Labor Relations Authority

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24:0183(25)NG - National Border Patrol Council, AFGE and Justice, INS -- 1986 FLRAdec NG

[ v24 p183 ]
The decision of the Authority follows:

 24 FLRA No. 25
                                            Case No. 0-NG-664 
                                              23 FLRA No. 11 
                                            Case No. 0-NG-682
                                              23 FLRA No. 17
    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.