Association of Civilian Technicians, Puerto Rico Army Chapter (Union) and United States Department of Defense, National Guard Bureau, Puerto Rico National Guard, San Juan, Puerto Rico (Agency)

[ v62 p144 ]

62 FLRA No. 38

ASSOCIATION OF
CIVILIAN TECHNICIANS
PUERTO RICO ARMY CHAPTER
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
PUERTO RICO NATIONAL GUARD
SAN JUAN, PUERTO RICO
(Agency)

0-NG-2519
(56 FLRA 493 (2000))
(56 FLRA 807 (2000))
(58 FLRA 318 (2003))
(59 FLRA 2 (2003))
(60 FLRA 1000 (2005))

_____

ORDER DENYING MOTION FOR
RECONSIDERATION

August 22, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n*] 

I.     Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's order dismissing the Union's petition for review in ACT, Puerto Rico Army Chapter, 60 FLRA 1000 (2005) (Puerto Rico Army Chapter II), on remand from ACT, Puerto Rico Army Chapter v. FLRA, 370 F.3d 1214 (D.C. Cir. 2004) (ACT v. FLRA), vacating and remanding ACT, Puerto Rico Army Chapter, 58 FLRA 318 (Member Pope concurring), reconsideration denied, 59 FLRA 2 (2003). The Agency did not file an opposition to the Union's motion for reconsideration.

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

II.      Decision in Puerto Rico Army Chapter II

      On remand from ACT v. FLRA, the Authority addressed a number of issues in concluding that the provision, which requires the Agency to reimburse employees for unavoidable personal monetary losses incurred as a result of the Agency's cancellation of leave, is not within the duty to bargain.

      The Authority addressed the official business standard recognized by the Supreme Court in Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 107 n.17 (1983) (BATF v. FLRA). The Authority concluded that the Court "did not establish a general, `official business' standard authorizing the expenses under the instant provision." Puerto Rico Army Chapter II, 60 FLRA at 1005. The Authority explained that instead, the Court relied on the statutory authorization under the Travel Expense Act, 5 U.S.C. § 5702. Id. In addition, the Authority concluded that its decisions in NFFE, 24 FLRA 430 (1986) (GSA), and NTEU, 26 FLRA 497 (1987) (BATF), "establish that the Authority applied the `official business' test in these cases because relevant statutory provisions explicitly allowed the use of government telephones for `official business.'" Id. The Authority also addressed "[w]hether for reasons of adequate staffing, retention, recruitment, or morale, for example, such reimbursements might advance the Agency's interests or convenience under the official business standard." Id. at 1006. The Authority concluded that "notwithstanding any improvement in employee morale, which is highly speculative at best, . . . the Union has not demonstrated that the provision would advance the Agency's interests in ensuring adequate staffing, retention and recruitment[,]" so as to constitute official business. Id. at 1007.

      The Authority further addressed whether the Federal Service Labor-Management Relations Statute (the Statute) creates official business and concluded that "[t]he Statute neither creates official business nor provides a statutory basis to apply the official business standard." Id. at 1005. In addition, the Authority noted that the court's decision in Dep't of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, Ind., 56 F.3d 273 (D.C. Cir. 1995) (Fort Benjamin Harrison), "supports the need for independent statutory authorization, separate and apart from the duty to bargain imposed by the Statute, for the expenditures required by the instant provision that would reimburse employees for incurred losses as a result of the Agency's cancellation of leave." Id. at 1006 n.2. Lastly, the Authority concluded that the provision did not constitute an appropriate arrangement under § 7106(b)(3) of the Statute. [ v62 p145 ]

III.     Union's Motion for Reconsideration

      The Union contends that reconsideration of the Authority's decision in Puerto Rico Army Chapter II is warranted because the Authority's decision is contrary to law.

      The Union first contends that the Authority misstated the holding in BATF v. FLRA and overlooked its relevant portion. According to the Union, the issue in BATF v. FLRA was not whether § 7131(a) of the Statute authorized union representatives a per diem allowance and travel expenses, but rather whether § 7131(a) required agencies to pay such expenses. In addition, the Union asserts that the Authority overlooked the second sentence of footnote 17 in BATF v. FLRA. The Union notes that in footnote 17, the Court stated that "[f]urthermore, unions may presumably negotiate for such payments in collective bargaining as they do in the private sector." Motion at 2 (quoting BATF v. FLRA, 464 U.S. at 107 n.17). In the Union's view, "the Court was saying that the federal employee collective bargaining law presumably authorizes negotiation of the [per diem] payments just as the private sector bargaining law does." Id.

      Second, the Union contends that the Authority misstated its holdings in GSA and BATF. Third, the Union contends that contrary to the Authority's conclusion, enforcement of the contract provision would be permissible equitable relief, not an impermissible award of money damages under Fort Benjamin Harrison. Lastly, the Union contends that the Authority's conclusion that the provision is not an appropriate arrangement is contrary to Authority precedent. Id. at 5 (citing NAGE Local R4-26, 40 FLRA 118 (1991)).

IV.     Analysis and Conclusions

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995) (Scott AFB). In Scott AFB, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that the Authority erred in its remedial order, process, conclusion of law, or factual finding. Id. at 85-87. The party seeking reconsideration of a decision of the Authority has a heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. Id. at 85.

      The Authority has uniformly held that attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. E.g., Library of Congress, 60 FLRA 939, 941 (2005). Consequently, to the extent that the Union's motion relitigates the conclusions reached by the Authority in Puerto Rico Army Chapter II, the motion fails to meet the heavy burden of establishing that extraordinary circumstances exist to justify reconsideration of Puerto Rico Army Chapter II. See id. Specifically, the Union's contentions that the Authority misstated the holdings in BATF v. FLRA, GSA, and BATF and that the Authority erred in concluding that the provision is not an appropriate arrangement restate arguments rejected by the Authority in Puerto Rico Army Chapter II. Accordingly, they provide no basis for granting reconsideration. See id. As to the remaining contentions, we conclude that they fail to establish that the Authority erred in any legal conclusion.

      We reject the Union's contention that the Authority "erroneously overlooked" the second sentence of footnote 17 in BATF v. FLRA. Motion at 2. The second sentence of footnote 17 states: "Furthermore, unions may presumably negotiate for such payments in collective bargaining as they do in the private sector." 464 U.S. at 107 n.17. The Union argues that this sentence does not rely on the Travel Expense Act, 5 U.S.C. § 5702(a), and that "the Court was saying that the federal employee collective bargaining law presumably authorizes negotiation of the [per diem] payments just as the private sector bargaining law does." Motion at 2.

      Contrary to the Union's contention, the Court's observation in footnote 17 of BATF v. FLRA that "presumably" agencies could agree to the payment of travel expenses for union negotiators does not indicate that such agreements would be authorized pursuant to the Statute, without regard to the standards for such payment in the Travel Expense Act. 464 U.S. at 107 n.17. Rather, the context of this comment, at the end of a discussion of reimbursement for such expenses under the standards of the Travel Expense Act, implies that such agreements would be governed by the same standards as unilateral payments by agencies under that Act, which are also discussed in the footnote.

      Further, the Court's reference to the fact that travel expenses are a subject of bargaining in the private sector does not establish that the Statute authorizes bargaining in the same manner as bargaining in the private sector. As the Court has also explained, labor relations in the federal and private sectors are governed by different statutes and follow different rules where the statutes differ. See United States Dep't of Def. v. FLRA, 510 U.S. [ v62 p146 ] 487, 503 (1994) (union's right to obtain home address lists in private sector has "little relevance" to information disclosure in federal sector). Applying the foregoing distinction, the payment of travel expenses for union negotiators has been found negotiable because, as relevant here, "such payment was within the agency's discretion under the relevant statutory and regulatory provisions, which authorized expenditures for `official business' that `is necessary to accomplish the purposes of the Government[.]'" Puerto Rico Army Chapter II , 60 FLRA at 1005 (quoting NTEU, 21 FLRA 6, 10, 15, 18 (1986) (citing Travel Expense Act; Federal Travel Regulations § 1-1.4)), aff'd sub nom. Dep't of the Treasury, United States Customs Serv. v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988)). This rationale is fully consistent with the Court's decision in BATF.

      For the above reasons, we reject the Union's contention that the decision in Puerto Rico Army Chapter II is inconsistent with footnote 17 in BATF v. FLRA.

      The Union also contends that the Authority "erroneously invoke[d]" Fort Benjamin Harrison. The Union maintains that "enforcement of the provision would be permissible equitable relief," and not "monetary damages impermissible without an express waiver of sovereign immunity." Motion at 4.

      In Fort Benjamin Harrison, the court explained that the waiver of sovereign immunity that permits the Authority, in remedying an unfair labor practice, to order "any remedial action" or "such other action" under §§ 7105(g)(3) and 7118(a)(7)(D) of the Statute, respectively, encompasses the power to impose equitable, rather than legal, remedies. 56 F.3d at 277. In Puerto Rico Army Chapter II, the Authority relied on Fort Benjamin Harrison solely to illustrate the point that waivers of sovereign immunity must be expressed. 60 FLRA at 1006 n.2. The Authority did not imply that the distinction between equitable and legal remedies in unfair labor practice cases has any bearing on an agency's authority to agree to particular union proposals. It does not.

      In any event, as Fort Benjamin Harrison explains, "money damages" refers to a sum of money given as compensation and as a substitute for a suffered loss, while the remedy in an equitable action for specific relief attempts to provide plaintiffs with the very thing to which they are entitled. 56 F.3d at 276. Following this definition and contrary to the assertion of the Union, the provision in this case would apparently provide remedies that are legal, rather than equitable. The provision permits the reimbursement by the Agency of personal monetary losses of employees for "hotel reservations, airline tickets, etc." as a result of the Agency's cancellation of approved leave. Puerto Rico Army Chapter II, 60 FLRA at 1000. The employees would thus receive compensation for a suffered loss, rather than the thing they are entitled to.

      Lastly, the Union's claim that the Authority's conclusion that the proposal is not an appropriate arrangement is inconsistent with NAGE Local R4-26 is misplaced. In NAGE Local R4-26, which, as the Authority noted, involved the use of non-appropriated funds, the question of whether the proposal was an appropriate arrangement was not be