Association of Civilian Technicians, Wichita Air Capitol Chapter (Union) and United States, Department of Defense, National Guard Bureau, Kansas National Guard, Topeka, Kansas (Agency)
[ v58 p483 ]
58 FLRA No. 119
ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
KANSAS NATIONAL GUARD
(58 FLRA 28 (2002))
ORDER DENYING MOTION
April 18, 2003
Before the Authority: Dale Cabaniss, Chairman; Carol
Waller Pope and Tony Armendariz, Members.
I. Statement of the Case
This case is before the Authority on the Union's motion for reconsideration of the Authority's order dismissing the Union's petition for review of its proposal in Association of Civilian Technicians, Wichita Air Capitol Chapter, 58 FLRA 28 (2002) (ACT, Wichita) (Chairman Cabaniss concurring). The Agency did not file an opposition to the Union's motion.
For the reasons that follow, we deny the Union's motion.
II. Decision in 58 FLRA 28 [n1]
In ACT, Wichita, the Authority found that the Union's proposal concerned "terms and conditions" of military service and, as such, was prohibited under 10 U.S.C. § 976(c). In arriving at this conclusion, the Authority noted that paragraph 5 of the Union's proposal conditioned the assignment of military training duties for employees working in a civilian status on a variety of requirements including impact and implementation bargaining and 30 days' notice to the affected employees. [n2] As a result the Authority concluded that paragraph 5 of the proposal would require the Agency to "`negotiate . . . concerning the terms or conditions of service' of members of the armed forces and, as a result, runs afoul of [10 U.S.C.] § 976(c)." ACT, Wichita, 58 FLRA at 31. As such, the Authority found that the proposal was inconsistent with 10 U.S.C. § 976(c) and thus, outside the duty to bargain under § 7117 of the Federal Service Labor-Management Relations Statute (the Statute).
III. Motion for Reconsideration
The Union argues that this case warrants reconsideration because: (1) the Authority's decision is contrary to law; and (2) the Authority's denial of severance is contrary to law and departs without explanation from past precedent. Motion at 1.
In support of the above, the Union contends that the Authority's interpretation of 10 U.S.C. § 976(c) is erroneous as it is overly broad. Specifically, it argues that duties assigned during time of civilian employment cannot be found to be terms or conditions of military service under 10 U.S.C. § 976(c) simply because those duties have a military nature or subject. In this respect, the Union argues that the prohibitions under 10 U.S.C. § 976(c) only apply when technicians are actually serving in an active duty (military) status. Motion at 2-3. Moreover, it maintains that the Authority erred by relying on the reasoning expressed in Association of Civilian Technicians, Schenectady Chapter v. FLRA, 230 F.3d 377 (D.C. Cir. 2000) in formulating our decision. It argues that unlike the proposal in this matter, the proposal there concerned duties to be performed while on military time, and that alone was the reason it was found to be outside the duty to bargain. Motion at 5, 6. The Union contends that its position is supported by decisions regarding the wearing of a military uniform while in a civilian employment status. According to the Union, those decisions hold that such wear is a term or condition that is negotiable despite the prohibitions under 10 U.S.C. § 976(c). The Union also asserts that its position is also supported by a decision holding that a proposal requiring the inclusion of any "Military Occupational Specialty" in position descriptions is a civilian matter within the duty to bargain. Motion at 4.
Finally, the Union contends that the Authority's decision to deny its requested severance was contrary to law, regulation and an unexplained departure from our [ v58 p484 ] past precedent. Id. at 9. The Union argues that it has either sufficiently explained how each requested severed proposal would operate in its Petition for Review or such explanation was unneeded as it was clear by the language of the proposals. As such, it maintains that its severance request met the Authority's "distinct factual questions" standard as set forth in Association of Civilian Technicians, Tony Kempenich Memorial, Chapter 21, 56 FLRA 526, 534 (2000), petition for review denied, 269 F.3d 1119 (D.C. Cir. 2001) (Tony Kempenich); Association of Civilian Technicians, Inc., Rhode Island Chapter, 55 FLRA 420 (1999). Moreover, it argues that the Authority's departure from this standard without explanation renders our decision arbitrary and capricious. Motion at 9 (citing Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 47 (1983); Greyhound Corp. v. Interstate Commerce Commission, 551 F.2d 414 (D.C. Cir. 1977); Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970)).
IV. Analysis and Conclusions
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 Air Force Base, Ill., 50 FLRA 84, 85 (1995). 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.
The Union contends that only duties assigned during military time are outside the duty to bargain under 10 U.S.C. § 976(c). Motion at 3. However, this same argument was addressed in ACT, Wichita, 58 FLRA at 30-31, and the Union has not established extraordinary circumstances warranting reconsideration of that decision.
Finally, for the reasons expressed in ACT, Wichita, we find that the Union failed to comply with our regulatory requirements to support its request for severance with an explanation as to "how each severed portion of the proposal . . . may stand alone, and how such severed portion would operate." ACT, Wichita, 58 FLRA at 29 (citing 5 C.F.R. § 2424.2(h); 2424.22(c); 2424.25(d)). This is consistent with our determination in ACT, Wichita Air Capitol Chapter, 57 FLRA 939, 941 (2002), reconsideration denied, 58 FLRA 310 (2003), petition for review filed as to other matters, No. 03-1083 (D.C. Cir. March 21, 2003), in which we found that the Union's request for severance in that matter failed to meet our regulatory requirements given the lack of explanation as to how the requested severed portions of that proposal would operate (citing 5 C.F.R. § 2424.22(c)). Additionally, as we noted in ACT, Wichita Air Capitol Chapter, 58 FLRA 310, 312, under our current regulations a severance request must be accompanied by an explanation as to how each of the proposed severed proposals would operate, even though under our prior practice such showing was not necessary. See Tony Kempenich, 56 FLRA at 533-34 (2000). As such, based upon our review of the Union's entire motion for reconsideration, the Union has failed to show any extraordinary circumstances warranting reconsideration of ACT, Wichita, 58 FLRA 28 (2002).
The Union's motion for reconsideration is denied.
9-2b MILITARY TR