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39:1472(129)CA - - Army, Lexington Blue Grass Army Depot, Lexington, KY and Ronald D. Lewis - - 1991 FLRAdec CA - - v39 p1472

[ v39 p1472 ]
The decision of the Authority follows:

39 FLRA No 129









(An Individual)


(38 FLRA 647 (1990))



March 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of our decision in U.S. Department of the Army, Lexington-Blue Grass Army Deport, Lexington, Kentucky and Ronald D. Lewis, 38 FLRA 647 (1990). The Agency also requested that the decision be stayed pending disposition of its motion.(*) Because the Agency fails to establish that extraordinary circumstances exist that would warrant reconsideration of our decision, we will deny the motion.

II. The Decision in 38 FLRA 647

In our decision in 38 FLRA 647, the Authority adopted the Administrative Law Judge's recommendation that the Respondent violated section 7116(a)(1) and (5) by implementing a reorganization and reduction-in-force (RIF) in 1987 without notifying the Union as to when the reorganization would be implemented and RIF notices would be issued, despite the Union's written requests to provide advance notice of such changes in conditions of employment, and by refusing to bargain with the Union concerning the impact and implementation of the reorganization and RIF.

We found a status quo ante remedy to be appropriate. Applying the test set forth in Federal Correctional Institution, 8 FLRA 604 (1982), we concluded that the Respondent had not supported with specific allegations or evidence its assertion that such a remedy would disrupt its operations. The Authority stated that the Respondent's assertion that a status quo ante remedy would create "personnel turbulence" and "an administrative mess" provided an insufficient basis for finding that such a remedy would disrupt its operations or impair the efficiency and effectiveness of operations. The Authority also rejected the argument that the remedy would require a repetition of the Commercial Activity study process or a rebidding of the contracts, because the remedy required only a return to the status quo before the reorganization and RIF, events that occurred well after the awarding of the contract.

III. Positions of the Parties

A. The Agency

The Agency contends that newly available facts establish extraordinary circumstances that require the reconsideration of the propriety of a status quo ante remedy. Specifically, Civilian Personnel Director, Barbara G. Kirkpatrick, provides detailed information in an affidavit as to the results of the 1987 reorganization and RIF and states that the "reconstruction of the status quo ante is practically impossible" and "would only result in useless personnel turbulence, without benefit to most of the employees affected, and serious impairment of efficient and effective Depot operations." Motion for Reconsideration, Exhibit 1 at 2. The Commander of the Agency, William R. Humbaugh, asserts in an affidavit that "the Depot has been ordered to ship prodigious amounts of military supplies and ammunition to South West Asia in support of Operation Desert Shield[,]" and that these shipments are "in excess of what the Depot normally ships for an entire year." Id., Exhibit 2 at 1. He further asserts that "[i]mplementing the status quo ante would result in placing employees in positions not currently necessary to support Depot operations, particularly operations in support of Operation Desert Shield. It would seriously disrupt the accomplishment of this Depot's mission in support of Operation Desert Shield." Motion for Reconsideration, Exhibit 2 at 2.

The Agency claims that these facts, which were not available at the time of the hearing, require "a different result in the balancing of the nature and circumstances of the violations against the degree of disruption in Government operations." Motion for Reconsideration at 1. The Agency asserts that the facts demonstrate that "the status quo ante could not practically be re-established, that any re-establishment would cause extensive personnel turbulence, including impacting on a subsequent reorganization and reduction-in-force," that there has been little adverse effect on bargaining unit employees, that the Agency met its bargaining obligation to negotiate in a subsequent reorganization and RIF, and "that the status quo ante remedy would now seriously disrupt Depot operations in support of Operation Desert Shield." Id. at 1-2.

In the alternative, the Agency requests that a retroactive bargaining order be issued.

B. General Counsel

The General Counsel asserts that the Agency's motion for reconsideration should be denied. The General Counsel argues that the Agency is simply attempting to relitigate the Respondent's contention that a status quo ante remedy would result in "useless personnel turbulence." General Counsel's Opposition at 4. In addition, the General Counsel argues that Commander Humbaugh's assertion as to the effect of the status quo ante remedy consists of unsupported statements that lack specific examples or proof. The General Counsel notes that most of the employees affected by the reorganization and RIF are working in maintenance jobs and asserts that the Agency has not established how returning these employees to their previous positions would disrupt its mission.

C. Charging Party

The Charging Party argues that the Agency is "attempting to reargue the case, thus stalling the inevitable." Charging Party's Response at 1. It contends that the Agency has made only vague assertions that the status quo ante would disrupt the Agency's mission, noting that the Agency failed to specify the positions involved and how such a remedy would preclude employees from being assigned in support of Operation Desert Shield or from making the necessary shipments for that operation. The Charging Party argues that "[t]here were sufficient personnel and job titles under the old structure to support this temporary military operation[.]" Id. at 2. The Charging Party also argues that Commander Humbaugh has emergency powers to detail employees to meet the Agency's mission if he needs personnel to meet a national emergency. Id. at 1.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 38 FLRA 647.

Insofar as the Agency's argument is premised on its contentions that a return to the status quo would cause extensive "personnel turbulence" or that the adverse effect on unit employees was minimal, these arguments were previously raised and argued by the Agency and were rejected. Nothing contained in the Agency's supporting documents convinces us that our original determination as to these assertions was in error. Moreover, we do not see the relevance of the fact that there was a recent reorganization and RIF that apparently affected some of the employees involved in this case. The Agency has not explained how the recent reorganization that involved 477 employees in two facilities affected the 47 bargaining unit employees covered by our order in 38 FLRA 647. Further, the fact that the Agency may have satisfied its bargaining obligations with regard to its subsequent actions, a matter not before us, has no bearing on the issue of what it must do to remedy its earlier failure to bargain. Thus, these arguments constitute nothing more than disagreement with the Authority's decision in 38 FLRA 647 and an attempt to relitigate the merits of that case. As such, these arguments do not constitute extraordinary circumstances within the meaning of section 2429.17 of our Rules and Regulations. See, for example, Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51, 54 (1987).

Finally, the Agency's argument that a status quo ante remedy would disrupt its operations in support of Operation Desert Shield also fails to establish extraordinary circumstances within the meaning of our Rules and Regulations. First, at the time of the Agency's motion, there was no indication that Operation Desert Shield would be of long duration; indeed, that military operation has since been terminated. We will not revoke an otherwise appropriate remedy based merely on a plea of temporary exigencies. In our view, this type of contention is best left to the compliance stage of our proceedings.

V. Order

The Respondent's request for reconsideration of the Authority's Decision and Order in 38 FLRA 647 is denied.

(If blank, the decision does not have footnotes.)

*/ After review of the Agency's motion, it was determined that a stay of our decision pending resolution of the motion was not warranted.