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56 FLRA No. 177
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 121
U.S. GOVERNMENT PRINTING OFFICE
(56 FLRA 609 (2000))
ORDER DENYING MOTION FOR
December 27, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.
I. Statement of the Case
This case is before the Authority on the Union's motion for reconsideration of the Authority's Decision in 56 FLRA 609 (2000). The Agency 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 Union has failed to establish that extraordinary circumstances exist and we deny the Union's motion.
II. Preliminary Matter
On October 5, 2000, the Authority issued an Order directing the Union to provide the Authority with a statement of service showing the date the Union's request for reconsideration was served on the Agency. In the response, the Union timely filed a statement of service showing that its request was served on the Agency on September 15, 2000. The response also included additional argument, which we construe as a supplemental submission. The supplemental submission contained an attachment that the Union contends supports its position that the proposal is within the duty to bargain. The Authority did not request the supplemental submission from the Union, nor did the Union request permission to file the submission with the Authority.
On October 23, 2000, the Agency, pursuant to § 2429.26 of the Authority's Regulations, filed a request that it be permitted to file a response to the Union's October 19 and September 15 submissions. In its response, the Agency objects to the Union's supplemental submission on the ground that it is untimely because it was filed well beyond the time period for filing a motion for reconsideration.
Section 2429.26 of the Authority's Regulations provides that the Authority may, in its discretion, grant leave to file "other documents" as deemed appropriate. Although the Agency's response was unsolicited by the Authority, it responds to the Union's unsolicited supplemental submission. Moreover, to the extent that the Agency's response concerns the Union's initial motion for reconsideration, it is appropriate for the Authority to consider the submission, since there is no time limit provided in the Authority's Regulations for filing an opposition to a motion for reconsideration, and the Union has not objected to it. Accordingly, we grant the Agency's request to file the supplemental response, insofar as it concerns the Union's initial motion for reconsideration.
As to the Union's supplemental submission, the parties had ample opportunity to state their positions and submit relevant information before the Authority's decision in 56 FLRA 609 was issued. In this regard, at the Post-Petition Conference held on March 22, 2000 and again in an April 12, 2000 Order of the Authority, the Union was requested and permitted to file "documents" that supported its claims that work jurisdiction was negotiated and that unit employees were treated as prevailing rate employees. 56 FLRA at 609; Authority April 12 Order at 1.
The document contained in the Union's supplemental submission is dated April 15, 1993, which indicates that it was in existence before the Union filed its petition and the Post-Petition Conference was held. In this circumstance and noting the Agency's objection to the Authority's consideration of this document, we conclude that the Union has not demonstrated a reason for us to consider the unsolicited supplemental submission and, therefore, we have not considered it or the Agency's response to it.
III. Decision in 56 FLRA 609
In IBEW, Local 121, 56 FLRA 609 (2000), the Authority found that a proposal, which would require the Agency to negotiate with the Union before assigning any work historically performed by bargaining unit electricians to non-bargaining unit employees, was outside the duty to bargain. The Authority found that the [ v56 p1020 ] proposal affected management's right to assign work under section 7106(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute) and was not preserved for bargaining under section 704(a) of the Civil Service Reform Act, 5 U.S.C. § 5343 note.
In finding that the proposal was not preserved for bargaining under section 704(a), the Authority applied the three-part inquiry for determining whether section 704(a) applies as set forth in AFGE, Local 3062, 51 FLRA 229 (1995). The Authority first addressed the issue of whether the unit employees are prevailing rate employees to whom section 9(b) applies. The Authority examined the definition of prevailing rate employees found in 5 U.S.C. § 5342(a)(2)(A) and concluded that the employees involved in this case are not prevailing rate employees within the meaning of that section.
The Authority also examined other provisions of law, including 5 U.S.C. § 5342(b)(2), 5 U.S.C. §§ 5102(c)(7) and (9), 5 U.S.C. § 5349(a), and 44 U.S.C. § 305 and found that these provisions provided additional support for concluding that the subject employees are not prevailing rate employees within the meaning of 5 U.S.C. § 5342(a)(2)(A). Accordingly, the Authority concluded that the subject employees are not prevailing rate employees and therefore, section 9(b) and section 704 are not applicable in this case. [n1]
IV. Positions of the Parties
A. Union's Motion for Reconsideration
The Union asserts that the Authority "improperly interpreted the evidence" in the record and in support, cites Abramson v. United States, 40 Fed. Cl. 204 (Fed. Cl. 1998) (Abramson). According to the Union, Abramson, which held that employees of the Agency are covered by 5 U.S.C. § 5544, supports its position that Agency employees "are treated the same as prevailing rate employees." Motion for Reconsideration (Motion) at 1.
B. Agency's Opposition
The Agency contends that there is nothing extraordinary in the Union's motion. According to the Agency, Abramson does not support the Union's position because that decision was not based on a finding that its employees are prevailing rate employees.
Under § 2429.17 of the Authority's Regulations, a party seeking reconsideration of a final decision or order of the Authority bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See United States Dep't of the Air Force, 375th Combat Support Group, Scott AFB, Ill., 50 FLRA 84, 85 (1995) (Scott AFB). The Authority has found that extraordinary circumstances exist, and has granted reconsideration, in a limited number of situations, including where the Authority had erred in its remedial order, process, conclusion of law, or factual finding. A moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. Id. at 85-87.
In this case, the Union relies on Abramson to support its claim that the Authority erred in finding that the subject employees were not prevailing rate employees within the meaning of 5 U.S.C. § 5342(a)(2)(A) and, therefore, section 9(b) and section 704 are not applicable in this case. Abramson, however, provides no basis for reconsidering the Authority's decision.
In Abramson, employees of the Agency holding various supervisory positions sought to recover overtime pay pursuant to 5 U.S.C. § 5544. [n2] The court held that the Public Printer could not change its interpretation of 5 U.S.C. § 5544, which was developed over a course of 60 years, to exclude the affected employees. This decision did not rest on a finding that the employees involved therein were prevailing rate employees. Rather, it rested on a finding that the pay of these employees was fixed by an administrative authority similar to a wage board, an alternative basis for overtime eligibility under 5 U.S.C. § 5544. Moreover, the court recognized, as the Authority found, that such employees were not "employees whose wages are determined pursuant to . . . 5349." 40 Fed. Cl. at 208. Consequently, the court's holding in Abramson provides no basis for concluding that the Authority erred in reaching its decision that the employees involved in 56 FLRA 609 were not prevailing rate employees. The Union's request for reconsideration provides no basis under Scott AFB for granting reconsideration of this case. Accordingly, we deny the motion for reconsideration.
The Union's motion for reconsideration is denied.
Footnote # 1 for 56 FLRA No. 177
Footnote # 2 for 56 FLRA No. 177
(a) An employee whose pay is fixed and adjusted from time to time in accordance with prevailing rates under section 5343 or 5349 of this title, or by a wage board or similar administrative authority serving the same purpose, is entitled to overtime pay for overtime work in excess of 8 hours a day or 40 hours a week. . . . .