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28:0052(13)CA - Navy, Northern Division, Naval Facilities Engineering Command and NFFE Local 1430 -- 1987 FLRAdec CA



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28:0052(13)CA
The decision of the Authority follows:


28 FLRA No. 13


DEPARTMENT OF THE NAVY
NORTHERN DIVISION, NAVAL
FACILITIES ENGINEERING COMMAND

                    Respondent
      and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1430

                    Charging Party

Case No. 2-CA-1091
 (24 FLRA No. 86)

ORDER DENYING MOTION FOR RECONSIDERATION

This case is before the Authority based on the Respondent's Motion for Reconsideration of our decision in the above-entitled matter. For the reasons set forth below, we deny the motion.

In our decision and order on remand from the U.S. Court of Appeals for the District of Columbia Circuit, we accepted the court's opinion as the law of the case and consistent with that opinion fashioned a remedial order which is the subject of the current motion for reconsideration. The order was designed to remedy a finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute by unilaterally changing the functions of the Incentive Award Committee on which the Union had a role as an observer. Specifically, we ordered that the Respondent cease and desist from changing the functions of the committee by removing from its purview any review and recommendation to the Commander as to Quality Step Increases, Outstanding Performance Ratings, and Sustained Superior Performance Awards without notice to the Union and an opportunity to bargain, to the extent consonant with law and regulations. We also ordered the Respondent to rescind its removal of such functions from the purview of the committee, and, to the extent consonant with law and regulations, restore the procedure whereby the committee reviewed, among other things, proposed Quality Step Increases, Outstanding Performance Ratings, and Sustained Superior Performance Awards and made recommendations thereon to the Commander. In addition, we ordered the Respondent to notify the Union of [PAGE] any intention to change the functions of the committee or to remove from its purview any review and recommendation to the commander as to proposed awards, and upon request bargain with the Union to the extent consonant with law and regulations.

In its motion for reconsideration, the Respondent requests that our order be amended to exclude Outstanding Performance Ratings from the matters which may not be unilaterally removed from the purview of the committee. The Respondent contends that to the extent our order extends to decisions by the committee on whether to grant Outstanding Performance Ratings, it includes decisions on how employee performance shall be evaluated which would be contrary to various regulatory and statutory provisions.

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Respondent has not established "extraordinary circumstances" within the meaning of section 2429.17. The record establishes that Outstanding Performance Ratings were before the committee at least in part for the purpose of determining awards based on such ratings. If the ratings went before the committee for other purposes which are no longer consistent with law or regulations, our order provides for such a contingency. Thus it is the responsibility of the Respondent in complying with our order to do so "to the extent consonant with law and regulations."

Accordingly, the Respondent's motion for reconsideration is denied.

Issued, Washington, D.C., July 17, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p2 ]