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54 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

PHOENIX AREA INDIAN HEALTH SERVICE

SACATON SERVICE UNIT

HU HU KAM MEMORIAL HOSPITAL

SACATON, ARIZONA

(Activity)

and

SOUTHWEST NATIVE AMERICAN HEALTH CARE EMPLOYEES

LOCAL 1386

LIUNA, AFL-CIO

(Exclusive Representative)

DE-CU-50069

and

SOUTHWEST NATIVE AMERICAN HEALTH CARE EMPLOYEES

LOCAL 1386

LIUNA, AFL-CIO

(Exclusive Representative)

and

PHOENIX AREA INDIAN HEALTH SERVICE

SACATON SERVICE UNIT

HU HU KAM MEMORIAL HOSPITAL

SACATON, ARIZONA

(Activity)

DE-CU-60001

53 FLRA 1200 (1998)

_____

ORDER DENYING MOTION FOR RECONSIDERATION

May 29, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.^( * )

I. Statement of the Case

This matter is before the Authority on the Activity's motion for reconsideration of the Authority's decision in Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona, 53 FLRA 1200 (1998) (Hu Hu Kam). In Hu Hu Kam, the Authority dismissed a petition to clarify the unit in Case No. DE-CU-50069 and directed the Regional Director to amend the certification of unit consistent with the decision in Case Nos. DE-CU-60001.

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 Activity has failed to establish that extraordinary circumstances exist. Accordingly, we deny the Activity's motion.

II. Background and Authority's Decision

In Hu Hu Kam, the Authority concluded that individuals on special purpose Intergovernmental Personnel Act (IPA) assignments at a hospital over which an Indian tribe had asserted control continue to be in an appropriate bargaining unit. The Authority determined that the employees remained employees of the Activity pursuant to the IPA, and that the Activity was required to negotiate with the exclusive representative concerning those working conditions over which the Activity retained control. The Authority also recognized that Indian tribes are domestic dependent nations and are not agency employers governed by the Statute. See Hu Hu Kam, 53 FLRA at 1208.

The Authority found that control over the following working conditions remained with the Activity: discipline, leave, retirement, health insurance, life insurance, promotion, quality step increases, cash awards, and within-grade increases. The following working conditions were found to be subject to the discretion of the Gila River Health Care Corporation (the Corporation): work conditions, performance expectations, dress code and holidays. The Authority also determined that bargaining over the working conditions within the Activity's control would engender effective dealings and efficient agency operations.

III. Motion for Reconsideration

The Activity presents four arguments in support of its motion for reconsideration.

First, the Activity asserts that the Authority ignored its precedent concerning details outside of a bargaining unit. The Activity argues that the Authority had issued several decisions concerning "the effect on bargaining unit status of details outside of a bargaining unit." Motion for Reconsideration at 3. Specifically, the Activity relies on National Federation of Federal Employees, Local 1442 and U.S. Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, 44 FLRA 723 (1992) (Letterkenny) and International Association of Machinists and Aerospace Workers, Lodge 2424 and Department of the Army, Aberdeen Proving Ground, Maryland, 25 FLRA 194 (1987) (Aberdeen) to support its contention that when an employee is detailed outside of a bargaining unit, the employee is no longer part of that bargaining unit for the duration of the detail. The Activity contends that, consistent with this precedent, the Authority should find that all employees on detail outside of their bargaining unit must be considered to no longer be in a bargaining unit.

Second, the Activity contends that the Authority misunderstood and mischaracterized the functions over which the Activity retains control regarding the employees on special purpose IPA assignment to the Hospital. The Activity argues that it retains only administrative control, and no longer has "significant control" over the employees' working conditions. Motion for Reconsideration at 8.

Third, the Activity argues that continuation of the bargaining unit will disrupt effective dealings and efficient operation of the Activity. The Activity maintains that the Corporation exercises control over the employees' working conditions, and that the Activity has assumed only an administrative role. The Activity asserts that it is not efficient to require the Activity to expend its resources to deal with a bargaining unit over which the Activity has "virtually no control." Id. at 14.

Finally, the Activity asserts that Indian tribes have sovereign status and that the Authority's decision impermissibly interferes with the sovereignty of the Gila River Indian Community (the Community). The Activity claims that because the Community does not have standing under the Federal Service Labor-Management Relations Statute (the Statute), the Community will "suffer consequences" resulting from dealings between the Activity and the exclusive representative, over which the Community would have no recourse. Id.

IV. Analysis and Conclusions

A. The Standard for Granting Reconsideration

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, 86-87 (1995) (Scott Air Force Base), the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These have included where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; and (3) the Authority had erred in its remedial order, process, conclusion of law, or factual finding. 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. See also United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 1561, 1564-66 (1996). Mere disagreement with the Authority or attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California, 48 FLRA 543, 545 (1993).

B. The Activity Has Not Established Extraordinary Circumstances Warranting Reconsideration

1. The Authority's Decision Did Not Depart from Its Precedent on Details Without Explanation

In Hu Hu Kam, the Authority distinguished this case from two cases relied on by the Activity, concerning employees detailed on IPA assignments: Internal Revenue Service, 24 FLRA 999 (1986) and American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals, AFL-CIO and Social Security Administration, Office of Field Operations, Baltimore, Maryland, 17 FLRA 11 (1985). In its Motion, the Activity relies on two additional cases where the Authority found that detailed employees were not in a particular bargaining unit: Letterkenny and Aberdeen. The facts addressed in these two cases are distinguishable from those presented in Hu Hu Kam, and the Authority's decisions are not inconsistent.

In Hu Hu Kam, the Authority found that the employees on special purpose IPA assignments remained employees of their agency, consistent with 5 U.S.C. § 3373. See Hu Hu Kam, 53 FLRA at 1209-12. In Aberdeen, the employees were detailed into supervisory positions. Supervisors are specifically excluded from the definition of employee under the Statute and cannot be included in a bargaining unit. 5 U.S.C. § 7103(a)(2)(B)(iii). This distinguishes them from individuals on IPA assignment details, who remain employees. Letterkenny concerned the appropriate bargaining unit designation of an individual who remained an employee of the same agency and temporarily moved from one bargaining unit to another. There is no question that this individual remained an employee subject to the Statute, for whom it was necessary to designate one of two appropriate units. In Hu Hu Kam, the employees remained employees in the same bargaining unit and their non-supervisory status did not change. Accordingly, the Activity's reliance on Aberdeen and Letterkenny is misplaced.

For these reasons, the Activity has not shown that the Authority's decision in Hu Hu Kam departs from Authority precedent.

2. The Authority Did Not Misunderstand and Mischaracterize the Situation Which Existed Following the Takeover of the Hospital by the Community and Its Management by the Corporation

In its decision, the Authority set forth the conditions of employment over which the Activity retained control and the functions over which the Corporation exercised authority. See Hu Hu Kam, 53 FLRA at 1204. The Authority's recitation of the division of responsibility for these conditions of employment is consistent with the Regional Director's (RD's) Decision and no grounds for overturning these factual findings have been presented. See RD's Decision at 10.

The Authority recognized certain subjects over which the Activity retained control and over which bargaining can occur, and recognized as well that there were other subjects over which the Activity did not retain control and over which bargaining cannot occur. The Authority's decision was consistent with the situation after the IPA assignments were implemented. The Activity has not presented any argument to show that the determination in Hu Hu Kam that the employees remain in an appropriate bargaining unit was incorrect.

3. The Continuation of the Bargaining Unit Will Not Have a Detrimental Effect on the Efficient Operation of the Agency as Well as the Hospital

The Authority concluded in Hu Hu Kam that effective dealings and efficient operations continue to exist between the unit and the Activity. See 53 FLRA at 1218-20. In its Motion, the Activity merely reiterates the same claims that it raised in its opposition to the application for review and in its supplemental briefs.

Further, the Activity has not presented any argument undercutting our conclusion that employees on IPA assignments are employees within the meaning of the Statute. As such, in order to exercise their statutory rights, in any meaningful way, it is evident that there must be some appropriate unit within which these employees can be included. The Activity's position would effectively leave these employee without an appropriate unit and, thus, deny them the rights that Congress granted employees to collectively bargain.

4. The Authority's Decision Does Not Represent an Unwarranted and Illegal Attack on the Sovereignty of an Indian Tribe and Does Not Impermissibly Interfere with the Special Relationship which Congress Intended Federal Agencies and Indian Tribes to Maintain

In Hu Hu Kam, the Authority considered the comments submitted by the Community and the Corporation, as Amici, and took into account the Community's sovereign status. The Authority recognized that Indian tribes are domestic dependent nations that exercise "inherent sovereign authority" over their members and territories. Hu Hu Kam, 53 FLRA at 1208. The Authority concluded that:

bargaining between the Agency and the Union over conditions of employment that remain within the Agency's control would, in no way, infringe on the Community's inherent powers of self-government and the Corporation's rights under the [Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq.] to administer and manage the Hospital.

Id. at 1219.

The Activity's argument merely reiterates an argument previously presented to and addressed by the Authority.

5. Summary

The Activity's arguments do not establish any of the grounds on which the Authority has granted reconsideration and the request does not argue any additional grounds. As such, the Activity's request for reconsideration does not establish the extraordinary circumstances as set forth in Scott Air Force Base necessary to warrant reconsideration of the decision in Hu Hu Kam.

V. Order

The Activity's motion for reconsideration is denied.

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

*.   Member Cabaniss did not participate in the original decision.

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