[ v60 p258 ]
60 FLRA No. 58
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R3-77
(Union)
and
PENSION BENEFIT
GUARANTY CORPORATION
WASHINGTON, D.C.
(Agency)
0-AR-3561
(59 FLRA 937 (2004))
_____
ORDER DENYING MOTION
FOR RECONSIDERATION
September 17, 2004
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in National Association of Government Employees, Local R3-77, 59 FLRA 937 (2004) (Chairman Cabaniss dissenting, in part) (NAGE, Local R3-77). The Agency filed an opposition to the Union's motion. An amicus brief was also filed. [n1]
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. Decision in 59 FLRA 937
The background of this dispute is set forth fully in NAGE, Local R3-77 and will not be repeated here. In the award reviewed in NAGE, Local R3-77, the Federal Service Impasses Panel (the Panel) granted the parties' joint request for binding arbitration to resolve an impasse that had arisen in negotiations over their first collective bargaining agreement (CBA). As relevant here, the parties submitted proposals concerning institutional grievances, Union-initiated bargaining, and recrediting of annual and/or sick leave to the interest Arbitrator. [n2] During the arbitration hearings, the interest Arbitrator informed both parties that he would decide the articles at impasse on an article-by-article basis, based on their last best offer. Neither party objected to this procedure. The Arbitrator concluded that the Agency's proposals on institutional grievances (Provision 1) and Union-initiated bargaining (Provision 2) should be adopted. [n3]
The Union filed exceptions asserting that the award ordering the parties to adopt the Agency's proposals was contrary to law. In particular, the Union asserted that Provision 1 was contrary to § 7116(d) of the Federal Service Labor-Management Relations Statute (the Statute). The Union asserted that Provision 2 unlawfully precluded the Union from initiating midterm bargaining over a topic that was merely "discussed" in previous bargaining.
The Authority denied the Union's exceptions on the ground that the disputed provisions, at a minimum, concerned permissive subjects of bargaining, and as such, were not contrary to law. [n4] The Authority noted that the Union did not request that the Arbitrator decline to resolve the impasse after his interim determination that he could not resolve the negotiability issue raised by the Union, and did not challenge in its exceptions the Arbitrator's jurisdiction over the impasse. The Authority concluded as follows:
In sum, in situations such as this one -- where the parties jointly requested interest arbitration to resolve their impasse with full knowledge of each other's proposals and, thereafter, did not object to the Arbitrator's process for resolving [ v60 p259 ] the impasse -- there is no reason to permit either party to seek to overturn an interest arbitration award resolving the impasse on the ground that the subject is permissive. Permitting a party to attack a permissive subject on arbitral review in situations such as this one promotes litigation and delay, without serving any useful purpose. As there is no doubt that the parties could have agreed to the two provisions, and as there is no contention that the Union objected to impasse resolution of the provisions, they are enforceable.
59 FLRA at 942 (footnote omitted).
III. Motion for Reconsideration
The Union asserts that the Authority erroneously held that the Union waived its statutory rights. The Union asserts that long-standing precedent holds that any alleged waiver of a statutory right must be clear and unmistakable and contends that the Authority incorrectly found that the Union had "waived its clear rights under the Statute, despite the fact that [the Union] took every appropriate step to preserve its statutory rights." Motion at 2.
The Union also contends that "participating in interest arbitration does not mean that a party has automatically forfeited its right to not engage in collective bargaining over permissive matters." Id. at 3.
IV. Agency's Response
The Agency contends that the Union's motion fails to satisfy the extraordinary circumstances standard set forth in United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84 (1995) (Dep't of the Air Force).
The Agency asserts that NAGE, Local R3-77 is supported by the record, which shows that the Union was an active and willing participant in the impasse and arbitration proceedings. The Agency contends that although the Union did initially challenge the negotiability of the Agency-initiated bargaining proposal, the Arbitrator determined that he could not resolve the issue under the standard set forth in Commander, Carswell Air Force Base, Tex., 31 FLRA 620 (1988) (Carswell). At that point in time, the Agency asserts the Union could have challenged the Arbitrator's jurisdiction over this proposal, but did not do so. The Agency also contends the Union's assertion that the Authority erred because it did not apply the "clear and unmistakable waiver standard" amounts to nothing more than a disagreement with the conclusions reached by the Authority and fails to satisfy the extraordinary circumstances standard. Opposition at 5.
V. Amicus Curiae Brief
First, amicus Bernsen asserts that the decision is erroneous as a matter of law because it is contrary to the decision in Carswell. Second, amicus Bernsen contends that the Authority erroneously found that the Union waived its statutory rights. Third, amicus Bernsen contends that the decision is "illogical, irrational, nonsensical, arbitrary and capricious." Id. at 2 and 11. Fourth, amicus Bernsen contends that the Authority relies on "blatant factual errors." Id. at 12. According to amicus Bernsen, the Authority "falsely" found that the Union agreed to bargain over the Agency's proposals. Id. Lastly, amicus Bernsen claims that the decision "appears to be tainted by politics and ex parte communications." Id.
VI. Analysis and Conclusions
A. The Union's Motion for Reconsideration Fails to Establish that Extraordinary Circumstances Exist within the Meaning of § 2429.17
Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 56 FLRA 935 (2000) (IRS). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations: (1) where an intervening court decision [ v60 p260 ] or change in the law affected dispositive issues; (2) where evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision. See Dep't of the Air Force, 50 FLRA at 85-87. The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See IRS, 56 FLRA at 936.
In the exceptions to the Authority, the Union raised similar arguments to those presented by it here and by amicus Bernsen. Thus, the arguments presented in this case are nothing more than an attempt by the Union and amicus Bernsen to relitigate the conclusions reached by the Authority in resolving the initial exceptions.
With regard to amicus Bernsen's contention that the decision is contrary to Carswell, the Union had the opportunity to raise this issue in its exceptions in NAGE, Local R3-77 but did not do so then. Accordingly, the argument provides no basis for reconsideration. See, e.g., United States Dep't of Health and Human Services, Office of the Asst. Sec'y. For Mgmt. and Budget, Office of Grant and Contract Fin. Mgmt., Div. of Audit Resolution, 51 FLRA 982, 984 (1996).
Amicus Bernsen's remaining arguments are unsupported and do not establish the extraordinary circumstances necessary for reconsideration.
Accordingly, the Union has not established extraordinary circumstances to warrant reconsideration. [n5]
VII. Order
The Union's motion for reconsideration is denied.
Footnote # 1 for 60 FLRA No. 58 - Authority's Decision
Pursuant to § 2429.9 of the Authority's Regulations, Stuart E. Bernsen (Bernsen) requested permission to file an amicus brief. Under § 2429.9 of the Authority's Regulations, the Authority may, as it deems appropriate, grant permission for an interested person to present an argument as an amicus curiae. In the circumstances here, where Bernsen was involved in the case in the earlier proceedings as a representative of the Union and in the absence of any opposition from the parties to the Authority's consideration of the amicus brief, we grant Bernsen's request.
Footnote # 2 for 60 FLRA No. 58 - Authority's Decision
The Authority's decision concerning the leave proposal is not being challenged and, therefore, this proposal will not be addressed further in this decision.
Footnote # 3 for 60 FLRA No. 58 - Authority's Decision
We note that the term "proposal" is used to describe proposals submitted to an arbitrator for consideration before such proposals are adopted by the arbitrator. Afterwards, the proposals are referred to as "provisions."
Footnote # 4 for 60 FLRA No. 58 - Authority's Decision
Member Armendariz "viewed the provisions as permissive subjects of bargaining." 59 FLRA at 941, n.8. Member Pope noted that she would find the provision concerning interim negotiations to be a "mandatory subject of bargaining[,]" and as a result not contrary to law. Id. Concerning the provisions concerning grievances, Member Pope stated that it is well-established that the scope of the negotiated grievance procedure is a mandatory subject of bargaining. However, Member Pope found:
it unnecessary to determine whether the provision concerning grievances is a mandatory subject of bargaining, because, even if it is not mandatory, it is at a minimum a permissive subject, and as a result, not contrary to law. Therefore, for purposes of this decision, Member Pope will assume both provisions constitute permissive subjects of bargaining.
Id.
Footnote # 5 for 60 FLRA No. 58 - Authority's Decision
Chairman Cabaniss reaffirms her dissent in 59 FLRA 937 with respect to Provisions 1 and 2. However, Chairman Cabaniss joins in denying the motion for reconsideration.