23:0349(47)CU - Agriculture, Forest Service, Intermountain Region, Challis National Forest and Forest Service Council, NFFE, Independent -- 1986 FLRAdec RP
[ v23 p349 ]
23:0349(47)CU
The decision of the Authority follows:
23 FLRA No. 47
UNITED STATES DEPARTMENT OF AGRICULTURE
FOREST SERVICE, INTERMOUNTAIN REGION
CHALLIS NATIONAL FOREST
Activity
and
FOREST SERVICE COUNCIL
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, INDEPENDENT
Labor Organization
Case No. 9-CU-60002
9-CU-60003
ORDER DENYING APPLICATION FOR REVIEW
On July 21, 1986, the United States Department of Argiculture Forest
Service, Intermountain Region, Challis National Forest (Activity) filed
a timely application for review pursuant to section 2422.17(a) of the
Authority's Rules and Regulations, seeking to set aside in part, the
Regional Director's Decision and Order in the above-named cases. In its
application for review, the Activity contends that compelling reasons
exist within the meaning of section 2422.17(c) of the Authority's Rules
and Regulations for granting the application.
The Regional Director, citing Department of Interior, Bureau of Land
Management, District Office, Lakeview Oregon, 2 A/SLMR 515 (1972) and
United States Forest Service, Salmon National Forest, Salmon, Idaho, 5
A/SLMR 586 (1975), review denied by the Federal Labor Relations Council,
4 FLRC 89, 75A-107 (1976), found that "season supervisors" should be
excluded from the certified unit during the period in which they are
supervising seasonal employees, but shoud be considered to be within the
unit for that part of the year when they have no subordinates reporting
or assigned to them.
In its application for review, the Activity contends that review
should be granted based on the Regional Director's reliance on Executive
Order Law and in the absence of Authority precedent since the case
raises a substantial question of law or policy. Contrary to the
Activity's position, the Authority finds no reason to change the
long-standing policy with regard to "seasonal supervisors" established
under the cited Executive Order cases.
Under consideration of the Activity's application for review,
including all arguments in support thereof, the Authority concludes that
no compelling reason exists for granting the application. Rather the
application in essence expresses mere disagreement with the Regional
Director's findings which are based on precedent and have not been shown
to be clearly erroneous or to have prejudicially affected the rights of
any party.
Accordingly, pursuant to section 2422.17(f)(3) of the Authority's
Rules and Regulations, IT IS ORDERED that the application for review of
the Regional Director's Decision and Order be, and it hereby is, denied.
As the Activity's application for review only sought review of the
Regional Director's findings with respect to three "seasonal
supervisors," all other findings of the Regional Director are not at
issue herein and are final.
Issued, Washington, D.C., September 19, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
ORDER DENYING REQUEST FOR RECONSIDERATION
This matter is before the Authority because of the Union's request
for reconsideration of the Authority's Decision and Order on
Negotiability Issues of July 15, 1986, in the above-entitled matter.
For the reasons set forth below, the request must be denied.
In its decision the Authority held that because the disputed portion
of Provision 1 provided non-appropriated fund (NAF) employees who are
not covered by 5 U.S.C. Section 4303 with an option to contest
performance based non-disciplinary separations for cause through either
the Agency's internal regulatory appeals procedure or through the
negotiated grievance procedure which covers such matters, it was outside
the duty to bargain. The provision was contrary to section 7121(a)(1)
which establishes that, except for those matters set out in section
7121(d) and (e), the negotiated grievance procedure shall be the
exclusive procedure for resolving all matters which fall within its
coverage. The Authority found that the Agency's internal administrative
appeals system did not constitute an "appellate procedure" within the
meaning of section 7121(e)(1) which permits employees not covered by
title 5 the option of challenging performance based non-disciplinary
separations, through their negotiated grievance procedure or through the
applicable "appellate procedure" which may exist under their non-title 5
personnel system.
In support of its request for reconsideration, the Union contends
that since the position of the Agency as set forth in the record of the
case does not address whether its administrative appeals procedure is an
"appellate procedure" under section 7121(e), the Authority's decision is
based on a matter that was not at issue in the case.
Section 2429.17 of the Authority's Rules and Regulations provides
that a party which can establish "extraordinary circumstances" may
request reconsideration of an Authority decision. Here, however, the
Union has not established "extraordinary circumstances" within the
meaning of section 2429.17. Rather, the Union's arguments essentially
constitute nothing more than disagreement with the Authority's decision.
Contrary to the Union's argument, the Authority must apply all relevant
provisions of the Statute in resolving negotiability appeals and is not
limited to considering only the arguments of the parties.
Consequently, the Authority concludes that the Union has failed to
establish the existence ofextraordinary circumstances. Accordingly, IT
IS ORDERED that the Union's request for reconsideration be, and it
hereby is, denied.
Issued, Washington, D.C., September 10, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY