Association of Civilian Technicians, Wichita Air Capitol Chapter (Union) and United States, Department of Defense, National Guard Bureau, Kansas National Guard, Topeka, Kansas (Agency)

[ v60 p835 ]

60 FLRA No. 157

ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
KANSAS NATIONAL GUARD
TOPEKA, KANSAS
(Agency)

0-NG-2581
(58 FLRA 28 (2002))
(58 FLRA 483 (2003))
(60 FLRA 342 (2004))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

April 13, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

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 in Ass'n of Civilian Technicians, Wichita Air Capitol Chapter, 60 FLRA 342 (2004) (ACT II), on remand from Ass'n of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, 360 F.3d 195 (D.C. Cir. 2004) (Wichita Air Capitol Chapter) (vacating and remanding Ass'n of Civilian Technicians, Wichita Air Capitol Chapter, 58 FLRA 28 (2002) (Chairman Cabaniss concurring) (ACT I), recons. denied 58 FLRA 483 (2003)). The Agency did not file an opposition to the Union's motion.

      For the reasons that follow, we deny the Union's motion.

II.     Background

      In ACT I, 58 FLRA 28, the Authority addressed the negotiability of the Union's multi-paragraph proposal, entitled "Military Training Duty." [n2] The Authority denied the Union's request to sever the various paragraphs of the proposal and consider them separately. The Authority found that the proposal as a whole was nonnegotiable on the ground that it was inconsistent with 10 U.S.C. § 976. The Authority did not address the other arguments advanced by the Agency as to why the proposal was nonnegotiable. The Union requested reconsideration of the Authority's determination regarding 10 U.S.C. § 976, and the Authority denied the request in 58 FLRA 483 (2003).

      The Union sought judicial review of the Authority's determination that the proposal was nonnegotiable as inconsistent with 10 U.S.C. § 976. The Union did not challenge the Authority's denial of the Union's request to sever the various paragraphs of the proposal and consider them separately. The court reversed the Authority's determination regarding 10 U.S.C. § 976, and remanded the matter of the proposal's negotiability to the Authority for consideration of the Agency's other arguments. Wichita Air Capitol Chapter, 360 F.3d 195.

      In ACT II, 60 FLRA 342, a majority of the Authority determined that the proposal as a whole was nonnegotiable because paragraph 5 of the proposal substantively affected the Agency's right to assign work and, therefore, did not constitute a negotiable procedure. [n3] In this regard, the Authority found that under paragraph 5, the Agency is effectively prohibited from assigning work involving any military training duty unless and until the Agency takes several actions that place substantive limitations on the Agency's right to assign work. In light of the significant requirements imposed by paragraph 5 that the Agency must meet before assigning such military training duties as work, the Authority concluded that paragraph 5 was outside the duty to bargain because it substantively restricts management's exercise of its right to assign work. Additionally, since paragraph 5 of the proposal was outside the duty to bargain and the proposal as a whole was not severable, the Authority found the entire proposal to be outside the duty to bargain. The Authority also noted the parties' agreement that paragraph 6 concerned a matter that was bargainable at the Agency's election under § 7106(b)(1) of the Statute, and stated that "[n]othing in Authority precedent suggests that this fact affects our conclusion that the proposal as a whole is outside the duty to bargain." ACT II, 60 FLRA at 347 n.8. [ v60 p836 ]

III.      Positions of the Parties

A.     Union's Motion for Reconsideration

      The Union argues the following in support of its motion:

     For the reasons stated in the opinion of Member Pope (concurring in part and dissenting in part), Decision and Order at 23-28, the Authority's decision is contrary to law and departs without explanation from past precedent. For the reasons stated in the opinion of Member Pope at 23-25, and under the Authority precedent there cited, paragraph 5 is a negotiable procedure (and paragraphs 1-4 are negotiable as well.) The Authority's decision that paragraph 5 is not a negotiable procedure therefore is contrary to law and departs without explanation from past precedent. For the reasons stated in the opinion of Member Pope at 25-28, and under the Authority precedent there cited, paragraph 6 is not the dominant requirement of the proposal; and the inclusion of paragraph 6 does not render the proposal nonnegotiable. For these reasons, the Authority's determination that inclusion of paragraph 6 renders the proposal nonnegotiable is contrary to law and departs without explanation from past precedent.

Union's Motion at 2.

B.     The Agency's Response

      The Agency did not file a response to the Union's motion for reconsideration.

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 paragraph 5 is a negotiable procedure. However, for the reasons explained by the majority in ACT II, paragraph 5 places substantive limitations on the ability of the Agency to exercise its right to assign work, and thus does not constitute a procedure. ACT II, 60 FLRA at 346 (citing AFGE, Local 1345, 48 FLRA 168, 174 (1993)). As such, the Authority's decision is not contrary to law and does not depart from established precedent, and the Union's reconsideration request amounts to disagreement with the conclusion reached by the Authority. Attempts to relitigate the conclusions reached by the Authority are insufficient to establish extraordinary circumstances. United States Dep't of the Treasury, IRS, 57 FLRA 592, 593-94 (2001). Accordingly, the Union has not established extraordinary circumstances warranting reconsideration of ACT II.

      The Union's remaining argument is that "the Authority's determination that inclusion of paragraph 6 renders the proposal nonnegotiable is contrary to law and departs without explanation from past precedent." Union's Motion at 2. We note that the majority determined that the proposal was nonnegotiable because "paragraph 5 of the proposal is outside the duty to bargain[.]" Act II, 60 FLRA at 347. Therefore, the Union's assertion that "the Authority's determination that inclusion of paragraph 6 renders the proposal nonnegotiable[,]" misunderstands the basis for the Authority's decision. Union's Motion at 2.

      Furthermore, even if one were to construe the Union's arguments as an assertion that the majority improperly failed to address the "dominant requirement" aspects of the proposal, this argument provides no basis for establishing extraordinary circumstances.

      The Authority has refused to consider, in resolving requests for reconsideration, issues that could have been raised but were not raised by parties to the Authority in its underlying decision. United States Dep't of Transp., Fed. Aviation Admin., 58 FLRA 389 (2003). It is undisputed that the Union could have raised a "dominant requirement" argument before the Authority, but it did not do so. The various requirements levied upon parties in a negotiability appeal provided the Union here the opportunity to raise a dominant requirement argument in the underlying proceedings: 5 C.F.R. § 2424.22(b)(2) (Union must include in its petition for review "[s]pecific citation to any law . . . relied on by the exclusive representative in its argument"); 2424.25(c)(1) ("[i]f not included in the petition for review, the exclusive representative must state the arguments and authorities supporting any assertion that the proposal or provision does not affect a management right under 5 U.S.C. § 7106(a), and any assertion that an exception to management rights applies including . . . a matter negotiable at the election of the agency"); 2424.32(c) ("[f]ailure to raise and support an argument will, where appropriate, be deemed a waiver of such argument" absent good cause). In that regard, we note that the Union does not argue that good cause exists as to why it did not raise this argument to the Authority in the normal briefing [ v60 p837 ] sequence as required by our Regulations. Accordingly, the Union's failure to raise the argument, when it could have done so, precludes our consideration of it now.

      Moreover, the majority's reference in ACT II to the parties' agreement that paragraph 6 concerned a matter that was bargainable at the Agency's election under § 7106(b)(1) of the Statute, and its statement that "[n]othing in Authority precedent suggests that this fact affects our conclusion that the proposal as a whole is outside the duty to bargain[,]" also provides no basis for reconsideration. ACT II, 60 FLRA at 347 n.8. Nothing in this statement references the "dominant requirement" principle or could otherwise be said to raise that matter sua sponte, so as to provide a basis for reconsideration.

      Finally, even if we were to assume that the majority's statement regarding paragraph 6, read in conjunction with the dissent's discussion of the "dominant requirement" principle, permitted reconsideration to address that principle, it is clear that application of that principle would not render the proposal negotiable, and it is clear that the Union has not demonstrated that paragraph 6 imposes an inseparable requirement on the other parts of the proposal. See, e.g., AFGE, Local 1336, 52 FLRA 794, 798-800 (1996). Rather, the Union argues only that the dissent correctly found that paragraph 6 is not the dominant requirement, because it depends on the other paragraphs for its vitality, and that the negotiability of the proposal as a whole depends on the negotiability of paragraphs 1 through 5.

      On this point, we would agree: even assuming that the "dominant requirement" principle applies in this case, paragraph 6 clearly is not the dominant requirement. Rather, as the Union acknowledges, the negotiability of the proposal as a whole depends on the negotiability of paragraphs 1 through 5, which constitute the dominant requirement. For the reasons set forth in ACT II and summarized above, paragraph 5 is outside the duty to bargain. Thus, as the dominant requirement of the proposal is outside the duty to bargain, the entire non-severable proposal is outside the duty to bargain. See AFGE, Local 1336, 52 FLRA 794, 800 (1996) (Member Armendariz concurring as to result) (negotiability of proposal determined by requirement that has been identified as dominant).

      For these reasons, the Union's request has not established the requisite extraordinary circumstances warranting reconsideration, and its request for reconsideration will be denied.

V.     Order

      The Union's motion for reconsideration is denied.


Appendix

Proposal

9-2b MILITARY TRAINING DUTY:
1.      For purposes of this Section, "military training duty" is duty that is (1) required by a written policy or regulation that is applicable to members of the National Guard irrespective of whether they are employees, (2) designed to impart or to measure proficiency in a military skill, and (3) required by written policy or regulation to be performed for a specified period of time, or with a specified frequency, or until a specified level of proficiency is achieved. Examples of military training duties are rifle qualification and training in the wear of garments designed to afford protection from chemical weapons (Chem Gear).
2.      The agency shall include in an employee's written position description each military training duty that the agency expects to assign, as work, to that employee. The agency shall provide contemporaneous written notice to each employee of any amendment of the employee's position description to include a military training duty. The notice shall include the following statement: "Agency representatives are available to meet with you, any other similarly-affected employees, and your Chapter representatives to discuss this amendment, to answer questions, and to listen to any concerns that may be expressed regarding this change. If you would like to have a meeting for this purpose, contact your chapter representatives." Agency representatives shall be available to meet with employees and chapter representatives for this purpose. A military training duty shall be included in an employee's position description no less than four months before that duty is assigned to the employee, unless the agency delivers to the employee and the chapter a written statement of facts and reasons explaining why the agency did not do so.
3.      The agency shall provide the chapter a list of all bargaining unit position descriptions that include any military training duties. The list shall identify which military training duties are included in each position description. The agency shall provide the chapter contemporaneous written notice of any change to the listed information. The notice shall include the facts [ v60 p838 ] and reasons stated to any bargaining unit employee as the explanation for including a military training duty in the employee's position description less than four months before the employee was assigned the duty.
4.      Upon request by the chapter, the agency shall negotiate the impact and implementation of military training duty assigned to any employee as work.
5.      If the agency assigns an employee to perform, as work, any military training duty, the agency shall assign the work by written order that: (1) identifies the employee by name and position; (2) identifies and quotes the portion of the written policy or regulation that requires performance of the duty and specifies the period of time, frequency, or level of proficiency required, (3) describes the specific military skills to be imparted or military proficiency to be tested; (