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43 FLRA No. 84

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

(Agency)

0-NG-1947

0-NG-1949

(43 FLRA 414 (1991))

ORDER DENYING MOTIONS FOR RECONSIDERATION AND STAY

January 17, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before us on the Agency's motions for reconsideration and stay of the Authority's decision concerning Proposal 1 in 43 FLRA 414 (1991). The Union did not file an opposition to the motions. Because the Agency fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we will deny the Agency's motions.

II. The Authority's Decision in 43 FLRA 414

In 43 FLRA 414, we concluded that Proposal 1 was negotiable. The proposal provided as follows:

Child Care Article

Twenty[-]four hour a day child care will be available at each facility for unit employee's [sic] children. The fee for child care will be comparable to fees charged at Department of Defense Facilities in the area.

We noted that 38 U.S.C. § 7809(a)(1), formerly 38 U.S.C. § 4209(a)(1),⁽¹⁾ required that the Agency head provide for the operation of child care centers at the Agency's facilities.⁽²⁾ We found that the statute did not specify that each facility will have a child care center or provide the hours of operation of such centers. Because these matters are not specifically provided for by Federal statute, within the meaning of section 7103(a)(14)(C) of the Statute, we concluded that Proposal 1 concerned conditions of employment.

We also noted that where law or applicable regulation vests an agency with exclusive authority or unfettered discretion over a matter, the agency's discretion is not subject to negotiation. We found, however, no support in the plain wording of 38 U.S.C. § 7808, or its legislative history for concluding that the Agency's discretion over the operation of child care centers is not subject to collective bargaining.⁽³⁾

Finally, we found that there was nothing in the wording of Proposal 1 or in the record which established that child care fees could not be established that satisfied the requirements of both 38 U.S.C. § 7809(b) and the proposal.⁽⁴⁾ Accordingly, as no other bases for finding Proposal 1 were argued or apparent to us, we concluded that the proposal was negotiable.

III. The Agency's Motions

The Agency contends that the Authority disregarded the language of 38 U.S.C. §§ 7808 and 7809 in concluding that the operation of Agency child care centers is not specifically provided for by law and in concluding that the Agency has failed to establish that the Agency has exclusive control over all matters relating to child care operations. The Agency also contends that the Authority relied on "unsupported . . . assumptions" in finding that the portion of Proposal 1 requiring that Agency child care fees be comparable to fees charged at Department of Defense facilities in the area was not inconsistent with 38 U.S.C. § 7809(b). Motion for Reconsideration at 3. The Agency also requests that the decision in 43 FLRA 414 be stayed.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. The Agency fails to establish "extraordinary circumstances" within the meaning of section 2429.17.

The arguments presented by the Agency in support of its motion for reconsideration constitute nothing more than disagreement with the Authority's decision in 43 FLRA 414 and an attempt to relitigate the merits of the case. As such, these arguments do not constitute extraordinary circumstances warranting reconsideration of our decision, and we will deny the motions for reconsideration and stay.

V. Order

The Agency's motions for reconsideration and stay are denied.

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

1. As a result of the establishment of the Department of Veterans Affairs, various sections in title 38 were renumbered and amended to substitute "Department" for "Veterans' Administration" and "Secretary" for "Administrator." In 43 FLRA 414, the previous section numbers were used. Throughout this decision, the new section numbers are used.

2. 38 U.S.C. § 7809(a)(1) provides, in pertinent part:

The Secretary, through the Service, shall provide for the operation of child-care centers at Department facilities in accordance with this section. The operation of such centers shall be carried out to the extent that the Secretary determines, based on the demand for the care involved, that such operation is in the best interest of the Department and that [sic] is practicable to do so.

3. 38 U.S.C. § 7808 provides:

It is the purpose of this chapter that, under control and supervision of the Secretary, the Service shall function as an independent unit in the Department and shall have exclusive control over all its activities including sales, procurement and supply, finance, including disbursements, and personnel management, except as otherwise provided in this chapter.

4. 38 U.S.C. § 7809(b) provides, in pertinent part:

The Service shall establish reasonable charges for child-care services provided at each child-care center operated under this section. The charges shall be subject to the approval of the Secretary. In the case of a center operated directly by the Service, the charges with respect to the center shall be sufficient to provide for the operating expenses of the center, including the expenses of personnel assigned to the center. In the case of a center operated by a contractor which is a for-profit entity, the charges shall be established by taking into consideration the value of the space and services furnished with respect to the center . . . .

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