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48:0914(97)NG - - National Assoc. of Agriculture Employees and Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine - - 1993 FLRAdec NG - - v48 p914

[ v48 p914 ]
The decision of the Authority follows:

48 FLRA No. 97












(48 FLRA 639 (1993))



November 19, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion filed by the Union under section 2429.17 of the Authority's Rules and Regulations seeking reconsideration of our decision dismissing the Union's petition for review in National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 48 FLRA 639 (1993) (Animal and Plant Health Inspection Service). The Agency did not file an opposition to the motion for reconsideration.

For the following reasons, we conclude that the Union has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Union's motion for reconsideration.

II. The Decision in 48 FLRA 639

In Animal and Plant Health Inspection Service, we found that the Union's proposal, which required the Agency to pay employees overtime compensation for 8 hours of scheduled Sunday overtime in circumstances where they do not actually perform 8 hours' work, was inconsistent with 7 U.S.C. § 2260.

Accordingly, we found that the Union's proposal was nonnegotiable.

III. Motion for Reconsideration

The Union claims that reconsideration of our decision is warranted because the Authority erroneously relied on 7 U.S.C. § 2260, which "neither party mentioned . . . [or] relied upon, in its filings[,]" and because the decision conflicts with 5 U.S.C. § 6101(a) and its implementing regulations. Motion for Reconsideration at 2.

IV. Analysis and Conclusions

Section 2429.17 of our Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of a decision or order of the Authority. We conclude that the Union has not established extraordinary circumstances in this case.

Contrary to the Union's contention, the applicability of 7 U.S.C. § 2260 was raised by the Union in its own filings before the Authority. The Union specifically stated that "the overtime pay of [Plant Protection and Quarantine (PPQ)] officers is governed by 7 U.S.C. § 2260, 7 CFR § 354, and the implementing Agency Directive, AD 402.3." Reply Brief at 8. As the Union's proposal involves overtime pay, and 7 U.S.C. § 2260 governs the overtime pay of PPQ officers, that provision applies to this proposal.

We also reject the Union's claim that our decision conflicts with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121. Put simply, 5 C.F.R. § 610.121 does not apply to the overtime services performed by PPQ officers. In this regard, 5 C.F.R. § 610.121, applies to those employee to whom subpart A of 5 C.F.R. § 550 applies. See 5 C.F.R. § 610.101. Subpart A of 5 C.F.R. part 550, entitled Premium Pay, specifically excludes from its coverage the overtime services of the PPQ officers. See 5 C.F.R. § 550.101(d)(9).(*) Accordingly, the Union's reliance on 5 C.F.R. § 610.121, and cases interpreting it, is misplaced.

Based on the foregoing, we find that the Union has not established the existence of extraordinary circumstances warranting reconsideration of our decision in 48 FLRA 639. Accordingly, we will deny the Union's motion.

V. Order

The Union's motion for reconsideration is denied.

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

*/ 5 C.F.R. § 550.101(d)(9) provides in pertinent part:

        (d) This subpart does not apply to overtime, night, or holiday services for which additional pay is provided by the act of:

. . . .

        (9) August 28, 1950 (64 Stat. 561; 7 U.S.C. 2260), involving employees of the Department of Agriculture performing inspection or quarantine services relating to imports into and exports from the United States.