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51:1561(127)CA - - INS, Border Patrol, Del Rio, TX & AFGE, National Border Patrol Council, Local 2366 - - 1996 FLRAdec CA - - v51 p1561

[ v51 p1561 ]
The decision of the Authority follows:

51 FLRA No. 127












(Charging Party)


6-CA 10867

(51 FLRA 768 (1996))



July 19, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This case is before the Authority on the Charging Party's motion for reconsideration of the Authority's Decision and Order in 51 FLRA 768 (1996). The General Counsel filed a response in support of the Charging Party's motion and the Respondent filed an opposition to the motion.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that the Charging Party has failed to establish that extraordinary circumstances exist and we deny the Charging Party's motion.

II. Decision in 51 FLRA 768

In 51 FLRA 768, the Authority found, as relevant here, that the Respondent's refusal to bargain with the Charging Party did not violate the Federal Service Labor-Management Relations Statute (the Statute) as alleged. The Authority reached this conclusion because: (1) the Charging Party requested "mid-term" bargaining, which by definition takes place during the term of an existing collective bargaining agreement; and (2) no collective bargaining agreement existed at the time of the bargaining request.

The Authority stated that although provisions resulting from bargaining over mandatory subjects generally survive the expiration of an agreement,

the continuation of individual provisions, by operation of law, to govern aspects of the parties' relationship during a period following expiration of a term agreement, has never been held to constitute a collective bargaining agreement.

51 FLRA at 773.

III. Motion for Reconsideration

A. Charging Party

The Charging Party contends that there are extraordinary circumstances that justify its motion for reconsideration. The Charging Party asserts that the Authority's decision departed from precedent in two respects. First, it argues that the Authority departed from precedent by relying on statements contained in the charge that were not alleged in the complaint. The Charging Party states that "[i]t is the complaint, not the charge, that must notify the Respondent of the basis of charges against it." Motion for Reconsideration at 2 (citations omitted) (emphasis in original). The Charging Party asserts that the Authority's decision relied instead on the wording of the charge and the General Counsel's post-hearing brief, which "characterized the matter as one involving 'mid-term' bargaining." Id.

The Charging Party also contends that the Authority departed from precedent in holding that the continuation of individual provisions after the expiration of an agreement has never been held to constitute a collective bargaining agreement. The Charging Party claims that the effect of this holding would be to limit the Authority's "covered by" doctrine to those cases where there is an unexpired agreement, "thereby partially overruling" U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA). Motion for Reconsideration at 6.

In addition, the Charging Party asserts that extraordinary circumstances exist that justify reconsideration because the Authority was factually incorrect in stating that no theory of violation other than a mid-term bargaining violation was litigated or is apparent. The Charging Party contends that, without regard to mid-term bargaining theory, it was apparent that there was a statutory duty to bargain over the policy used to determine employee assignments to certain units. According to the Charging Party, the Respondent admits that such a policy is a mandatory subject of bargaining that was not covered by the expired agreement. The Charging Party quotes the Authority as stating that, absent a collective bargaining agreement, "a union is entitled to bargain over the substance or the impact and implementation of all conditions of employment." Id. at 6, quoting U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati, Ohio District Office, 37 FLRA 1423, 1430 (1990).

B. General Counsel

The General Counsel filed a response supporting the Charging Party's motion and agreeing with the Charging Party's assertion that, because the complaint did not allege a failure to engage in mid-term bargaining, the Authority incorrectly decided the case. The General Counsel also agrees with the Charging Party's contention that Respondent had a statutory duty to bargain over the assignment policy that was unrelated to mid-term bargaining claims.

C. Respondent

The Respondent opposes the motion, arguing that no extraordinary circumstances exist. The Respondent asserts that the Authority correctly decided the case, and contends that the Authority agreed with its position that a provision controlling bargaining below the level of exclusive representation is permissive in nature. As support for this conclusion, the Respondent points to the same statement that the Union questions, which is set forth above in section II.

IV. Analysis and Conclusions

A. Analytical framework

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. In U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84 (1995), the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include where the Authority erred in its remedial order, process, conclusion of law, or factual finding. Id. at 86-87. A moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. Id. at 87.

B. The Union Has Not Established Extraordinary Circumstances Justifying Review

1. The Authority Neither Departed From Precedent Nor Erred in Its Factual Finding by Concluding That This Case Involved Only Mid-Term Bargaining

The Charging Party contends that the decision departed from precedent by relying on statements regarding mid-term bargaining contained in the charge but not alleged in the complaint.

If a complaint does not set forth all of the elements of an alleged violation or is ambiguous, it is appropriate to examine other elements of the proceedings, including the charge, to determine whether adequate notice was provided. See Grand Rapids Die Casting Corporation v. National Labor Relations Board, 831 F.2d 112, 118 (6th Cir. 1987) (although the complaint did not allege the theory of violation found by the judge, due process was accorded where, among other factors, the violation conformed to the amended charge); U.S. Customs Service (Washington, D.C.) and U.S. Customs Service Northeast Region (Boston, Massachusetts), 29 FLRA 891, 901 (1987) (mere ambiguity in the language of the complaint did not remove the issue from being properly before the Judge where the matter was fully developed in the record before him). See generally, U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 467 (1995) (a violation can be found even if not alleged in the complaint if "all issues surrounding the violation have been litigated fully and fairly"). Here, the Authority looked to the charge as well as the matters litigated before the Judge and the positions of the parties in determining that this case had been characterized from its inception and throughout the hearing as involving mid-term bargaining. In these circumstances, it is clear that the Authority did not depart from precedent in relying in part on the charge to make this determination.

Consistent with this determination, the Authority did not err in its factual finding in stating that no theory of violation other than a mid-term bargaining violation was litigated or is apparent. In addition, insofar as the Union argues before us that it sought impact and implementation bargaining and that the Respondent was obligated to bargain on that basis, we note that our decision did not rest on the type of bargaining request (substance or impact and implementation) made by the Union. Rather, it was based solely on the timing of that bargaining request. In this connection, there is no allegation that, at the time the Union requested to bargain, management had changed conditions of employment or the parties were engaged in term bargaining. The only other theory under which the Respondent could have been obligated to bargain at that time is union-initiated mid-term bargaining. Accordingly, we deny the request for reconsideration on the basis that the Authority erred in its findings of fact.

2. The Authority Did Not Depart From Precedent in the Other Respect Alleged

The Charging Party also asserts that the Authority departed from precedent established in SSA because the decision in effect would limit the Authority's "covered by" analysis to only those cases where the parties have an agreement that has not expired. It bases this contention on the Authority's statement that the continuation of individual provisions of an expired agreement do not constitute a collective bargaining agreement.

However, as SSA did not involve an expired agreement, that case does not address the question of whether the "covered by" analysis applies to terms that continue after expiration of a contract. In making the statement referred to by the Charging Party, the Authority made no determination whether the "covered by" doctrine applies to the terms of an expired agreement.(*) Therefore, the decision in this case does not depart from precedent established in SSA.

In view of the foregoing, it has not been established that the Authority's decision either departed from precedent or that the Authority erred in its factual findings. Therefore, we deny the request for reconsideration.

V. Order

The Charging Party's motion for reconsideration is denied.

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

*/ The Respondent asserts that the Charging Party's contention "ignores the fact that the Authority is referring in the instant case only to the 'permissive' terms of expired agreements, not those controlling mandatory subjects of bargaining." Opposition to Motion for Reconsideration at 6. However, the statement referenced by both the Charging Party and the Respondent was designed only to support the Authority's holding that this case could not involve mid-term bargaining because the bargaining did not occur during the term of an agreement. It was not intended to, and should not be read to, convey any determination as to the nature of the contract provisions involved.