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50:0084(16)CA - - Air Force, 375th Combat Support Group, Scott AFB, IL and NAGE, Local R7-23 - - 1995 FLRAdec CA - - v50 p84

[ v50 p84 ]
The decision of the Authority follows:

50 FLRA No. 16












(Charging Party/Union)


(49 FLRA 1444 (1994))



January 4, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on the General Counsel's motion for reconsideration of the Authority's decision and order in 49 FLRA 1444 (1994) (Member Talkin dissenting). The Respondent filed an opposition to the General Counsel's motion. The Union did not file a brief.

Section 2429.17 of the Authority's Rules and Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision.

For the following reasons, we conclude that the General Counsel has failed to establish that such extraordinary circumstances exist. Accordingly, we deny the General Counsel's motion.

II. Decision in 49 FLRA 1444

In 49 FLRA 1444, the Authority determined that the Respondent had not violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it reassigned two bargaining unit employees without completing negotiations with the Union over the impact and implementation of the reassignments. The Authority concluded, applying U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), that the subject matter of the Union's proposals was inseparably bound up with and plainly an aspect of a provision of the parties' collective bargaining agreement regarding reduction-in-force (RIFs). The Authority reasoned that, in agreeing to the provision, the parties contemplated, or should have contemplated, that the provision would be interpreted as foreclosing further bargaining over the matter in dispute.

III. Motion for Reconsideration

A. General Counsel's Contentions

The General Counsel asserts that the Authority failed to give controlling weight to the parties' intentions regarding their contract language. The General Counsel maintains that the record establishes that the parties did not intend to foreclose negotiations over the reassignments at issue in this case.

B. Respondent's Opposition

The Respondent asserts that the General Counsel's motion reflects mere disagreement with the Authority's decision and, thus, fails to establish extraordinary circumstances to warrant reconsideration.

IV. Analysis and Conclusions

Pursuant to the Authority's Rules and Regulations, a party seeking reconsideration after the Authority has issued a final decision bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action.

The Authority has found that extraordinary circumstances exist, and as a result has granted reconsideration, in a limited number of situations. These have included where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues;(1) (2) evidence, information or issues crucial to the decision had not been presented to the Authority;(2) and (3) the Authority had erred in its remedial order,(3) process,(4) conclusion of law,(5) or factual finding.(6) Extraordinary circumstances may also be present when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in rendering its decision.(7) The moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement.(8)

In this case, the General Counsel's assertion that the Authority did not appropriately weigh certain evidence does not establish the extraordinary circumstances necessary to warrant reconsideration of the final decision published at 49 FLRA 1444.

V. Order

The General Counsel's motion for reconsideration is denied.

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

1. Department of the Interior, Bureau of Reclamation, Washington, D.C. and Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 36 FLRA 3, 7 (1990), affirmed sub nom. American Federation of Government Employees, Local 1978, AFL-CIO v. FLRA, 960 F.2d 838 (9th Cir. 1992) (on reexamination, Authority agreed with intervening judicial interpretation regarding the scope of negotiations under section 704(b) of the Civil Service Reform Act); International Federation of Professional and Technical Engineers, Local 12 and Department of the Navy, Puget Sound Naval Shipyard, 26 FLRA 854, 858 (1987) (amendments to Federal Travel Regulations rendered union's bargaining proposal, over which Authority had ordered parties to bargain, nonnegotiable).

2. United States Border Patrol, Tucson Sector, Tucson, Arizona, 48 FLRA 391, 394 (1993) (stipulated record left material issues of fact unresolved); Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1482, 32 FLRA 638, 641 (1988) (parties' mistake regarding critical fact was determinative of legality of award).

3. United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 39 FLRA 1431, 1436, 1438 (1991) (Authority corrected discrepancy between discussion of intended remedial order and order itself and otherwise modified remedial order).

4. American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 38 FLRA 177, 180-81 (1990) (Authority afforded agency opportunity to respond to petition for review where union had failed to comply with regulatory service requirements); Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri, 31 FLRA 1010, 1011 (1988) (Authority modified decision to adopt judge's finding of statutory violation).

5. U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri District and American Federation of Government Employees, Local 1336, 39 FLRA 22, 25 (1991) (Authority had failed to base a finding on legal requirements).

6. Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 30 FLRA 850 (1987) (Authority had made erroneous ruling concerning status of grievant).

7. See United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, MD v. FLRA, 7 F.3d 243, 245 (D.C. Cir. 1993) (party had failed to request reconsideration of decision in which Authority raised issue sua sponte).

8. U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees, Local 1857, 48 FLRA 543, 545 (1993) (moving party merely disagreed with conclusions reached by Authority in case and sought to relitigate merits of the case).