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61 FLRA No. 104
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
OF FEDERAL EMPLOYEES
(61 FLRA 404 (2005))
ORDER DENYING MOTION
May 3, 2006
Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in United States Dep't of the Interior, Nat'l Park Service, Pictured Rocks Nat'l Lakeshore, Munising, Mich., 61 FLRA 404 (2005) (Interior). The Agency filed an opposition to the Union's 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. Decision in Interior, 61 FLRA 404
In Interior, the Arbitrator interpreted 16 U.S.C. § 18g (§ 18g), [n1] which is incorporated into the parties' collective bargaining agreement pursuant to Article 11.2, [n2] as prohibiting the Agency from using volunteers to perform work previously performed by seasonal employees in a situation where the Agency hired fewer seasonal employees because of budgetary constraints. The Agency argued in its exceptions that § 18g should be interpreted such that use of a volunteer to perform the duties of a position that is not occupied by a unit employee due to lack of funding does not violate the statutory provision.
Applying Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984) , the Authority found that the Agency's interpretation of § 18g was permissible. In this regard, the Authority concluded that nothing in the statute precluded the Agency from using volunteers to perform duties of a position that is not filled by a unit employee due to budgetary constraints. Rather, in the situation where it was undisputed that the Agency did not have the funding to hire the same number of seasonal employees as it had hired in previous years, volunteers who performed work previously performed by seasonal employees did not displace those employees. Interior, 61 FLRA at 407.
Accordingly, as relevant here, the Authority concluded that the award was contrary to law and set it aside. [n3]
III. Positions of the Parties
The Union first asserts that the Authority's conclusion in Interior, that seasonal employees were not displaced by volunteers, but were not rehired because of budgetary constraints, is "contrary to what both parties argued at the hearing and in the Exceptions." Motion for Reconsideration (Motion) at 5. The Union further argues that the decision is inconsistent with the Federal Service Labor-Management Relations Statute (the Statute) because the decision "voids" and "renders . . . meaningless" the parties' contract provision concerning the use of volunteers to displace bargaining unit members. Motion at 5, 6. According to the Union, that contract provision incorporates statutory standards and Agency guidance indicating that volunteers are intended to "supplement" employees, but "not be used as a [ v61 p553 ] replacement or substitute for a park's basic interpretive operation." Motion at 5, citing NPS Policy Book (emphasis in motion). The Union further asserts that, under the interpretation of § 18(g) adopted by the Authority, the term "displace" has no meaning, because "regardless of whether the root cause for employee displacement is budgetary or the use of volunteers, volunteers performed the task of bargaining unit members thus precluding unit members from being rehired." Motion at 6.
In its opposition, the Agency argues that the Union has failed to establish extraordinary circumstances warranting reconsideration of the Authority's decision in Interior. In this regard, the Agency contends that its assignment of volunteers is within its right to assign work and comports with the applicable collective bargaining agreement, laws, and regulations.
IV. 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., Wash., D.C., 56 FLRA 935, 936 (2000). 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 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 United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Il., 50 FLRA 84, 85-87 (1995).
Contrary to the position of the Union, the Authority did not raise sua sponte the argument that the Agency's use of volunteers did not constitute the "displacement" of employees under applicable statutes. The Agency raised this argument to the Authority, see exceptions at 6, and the Union had an opportunity to address the argument in its opposition.
Further, the Union's assertion that the Authority's decision renders its agreement meaningless and that the decision is therefore inconsistent with the Statute provides no basis for reconsideration of the decision. The Union's argument in this regard, that the Authority erred in its construction of the term "displace" in the parties' agreement and in §18g, simply reiterates arguments that the Authority rejected in concluding that the Agency had reasonably construed § 18g. The Union provides no reason why that construction of §18g does not also apply to its agreement, which simply incorporates the terms of that statute, and the Union provides no explanation of its assertion that this construction renders the agreement meaningless. As such, we find that the Union's claim does not establish extraordinary circumstances warranting reconsideration.
The Union's motion for reconsideration is denied.
Footnote # 1 for 61 FLRA No. 104 - Authority's Decision
16 U.S.C. §18g provides, in pertinent part, that the Secretary of the Interior is authorized to "recruit, train, and accept . . . the services of . . . volunteers for or in aid of . . . visitor services" and that "[i]n accepting such services of individuals or volunteers, the Secretary shall not permit . . . volunteers . . . to displace any employee[.]"
Footnote # 2 for 61 FLRA No. 104 - Authority's Decision
Article 11.2 provides, in pertinent part, that "[i]n accordance with law, non-employee workers such as volunteers . . . will not displace employees or positions or their grade controlling duties . . . ." Award at 22.
Footnote # 3 for 61 FLRA No. 104 - Authority's Decision
The Authority also modified the portion of the award allocating the payment of the Arbitrator's fee. The motion for reconsideration does not address that aspect of the decision and it is not addressed further here.