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38 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3601

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

INDIAN HOSPITAL

CLAREMORE, OKLAHOMA

(Agency)

0-NG-1799

(36 FLRA 224)

ORDER GRANTING MOTION FOR RECONSIDERATION

November 14, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion for reconsideration filed by the Agency. The Agency seeks reconsideration of the Authority's decision of June 29, 1990 in 36 FLRA 224. The Union did not file an opposition to the Agency's motion for reconsideration.

For the reasons stated below, the Agency's motion for reconsideration is granted.

II. Background

On February 20, 1990, the Union filed a petition for review of a negotiability issue. On March 9, 1990, the Authority issued an order informing the Union that its petition did not comply with the Authority's Rules and Regulations. The order directed the Union to file, by March 20, 1990, "a statement of service showing service of the petition for review on the Agency's designee which complies with the Authority's Regulations" and "a statement addressing whether a concurrent unfair labor practice charge has been filed[.]" The order also stated that "[a]ny Agency statement of position must be filed within 30 days from the date the Agency's designee receives the Union's petition for review which complies with the Authority's Regulations."

On March 19, 1990, in response to the Authority's order, the Union filed a letter with the Authority indicating that the negotiability issue was not involved in an unfair labor practice charge. The statement of service attached to the letter indicated that "all copies of documents sent to the [Authority] ha[ve] been sent to the Agency head designee[.]"

The Agency head designee received the documents served by the Union by express mail on or about March 19, 1990. The package of documents received by the Agency head designee included the Union's initial petition for review dated February 16, 1990 and its attachments, the statement of service indicating that the Agency head designee had been served with all documents that had been sent to the Authority, and the letter to the Authority indicating that the Union had not filed a concurrent unfair labor practice charge. The Agency did not file a statement of position with the Authority.

On June 2, 1990, the Authority issued a Decision and Order on a Negotiability Issue in this case. 36 FLRA 224. The Authority indicated that the Agency did not provide any reasons in support of its allegation of nonnegotiability and found the proposal requiring the Agency to provide a private office for the Medical Staff Quality Assurance employee to be negotiable. Id.

III. Motion for Reconsideration

The Agency contends that the "Authority's decision was not issued in accordance with its regulations." Request for Reopening and Reconsideration (Motion) at 1. Specifically, the Agency argues that the Union did not comply with section 2424.4(b) of the Authority's Rules and Regulations because the Union "did not serve the agency head and the principal agency bargaining representative at the negotiations with a copy of the [corrected petition] sent to the [Authority.]" Id. at 3 (emphasis in original). The Agency asserts that "there is no evidence that the [A]gency bargaining representative . . . was ever served with the revised 'petition' or that the service by the [U]nion to the Department by express mail without reference to the case number of the petition was proper." Id. at 4. The Agency also contends that the Union failed to comply with section 2429.27 of the Authority's Rules and Regulations because "the statement of service fails to identify the nature of the document and the manner in which service was made." Id. at 3.

The Agency argues that "an [A]gency the size of the Department of Health and Human Service[s]" "absolutely rel[ies] on proper service." Id. at 3, 4. The Agency asserts that "[t]he level of recognition where negotiations occur . . . must be given notice that the [Authority's] regulations have been complied with so as to create an [A]gency obligation to file a response" because the Agency's "response to any petition of review is initially drafted at the level of negotiations . . . and, after final Departmental review, is sent to the [Authority] by the [Department of Health and Human Services (the Department)]." Id. at 3-4. The Agency claims that "[t]he first time [it] became aware that the [Authority] considered the [U]nion's submission of March 19, 1990 as sufficient under its regulations so as to create an obligation on the part of the Agency to submit its response to the petition was when it received the [Authority's decision in 36 FLRA 224]." Id. at 2-3. The Agency argues that the proposal in this case "involved an issue which if briefed by the Agency could have resulted in a finding of nonnegotiability[,]" and concludes that had it "been provided with the opportunity to respond to a properly filed petition it would have created a record which would have enable[d] the [Authority] to decide the negotiability of the proposal in the proper context." Id. at 4-5. Accordingly, the Agency requests the Authority to "grant [it] an opportunity to respond to the [U]nion's petition for review[.]" Id. at 5.

IV. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has established the necessary "extraordinary circumstances" to warrant reconsideration of this case.

Among other requirements, any petition for review filed with the Authority, "including all attachments thereto[,] shall be served on the agency head and on the principal agency bargaining representative at the negotiations." 5 C.F.R. º 2424.4(b). The Authority's March 9 order indicated that the Union's petition for review was deficient, directed the Union to correct the deficiencies, and stated that "[a]ny Agency statement of position must be filed within 30 days from the date the Agency's designee receives the Union's petition for review which complies with the Authority's Regulations." In response to the Authority's order, the Union corrected the deficiencies noted in the order. However, as the Agency points out, the statement of service did not indicate that the principal Agency bargaining representative at the negotiations had been served with the corrected petition.

To the extent that the Agency argues that we should grant its motion for reconsideration because the Union's corrected petition was served "without reference to the case [docket] number of the petition" as required by an Authority notice dated March 8, 1990, we reject that argument. See Motion at 4. The Agency acknowledges that it received a package of documents from the Union on or about March 19, 1990 containing the Union's initial petition and its attachments, the statement of service indicating that the Agency head designee had been served, and the March 16, 1990 letter to the Authority indicating that the Union had not filed a concurrent unfair labor practice charge. Motion at 3; Attachment 1 to Motion. We note that the Union's March 16, 1990 letter referenced the "Docket No. 0-NG-1799." Attachment 1 to Motion.

The Agency also argues that the Union failed to comply with section 2424.4(b) of the Authority's Rules and Regulations because the Union "did not serve . . . the principal agency bargaining representative at the negotiations with a copy of the [corrected petition.]" Motion at 3. The Agency claims that because responses to petitions for review are initially drafted at the level of negotiations (the local level), and the Union failed to serve the local level with the corrected petition, it was unaware that it had an obligation to respond to the Union's petition for review until it received the Authority's decision in 36 FLRA 224.^(*)

We conclude, in the absence of any evidence to the contrary, that the Union has not complied with the requirement of 5 C.F.R. º 2424.4(b) because it failed to serve a copy of the corrected petition on the principal Agency bargaining representative at the negotiations. Because the Union failed to serve the corrected petition on the Agency's bargaining representative, the local level was not informed that the deficiencies noted in the Authority's March 9 order had been cured. Accordingly, we grant the Agency's request for reconsideration to afford it an opportunity to respond to the Union's petition for review.

In view of our finding, it is not necessary to address the Agency's other contentions.

V. Order

For the reasons set forth above, the Agency's request for reconsideration is granted. The Authority's Decision and Order on a Negotiability Issue in 36 FLRA 224 is rescinded and the case is reopened for further processing. See, for example, U.S. Immigration and Naturalization Service and American Federation of Government Employees, 33 FLRA 885 (1989) (on reconsideration the Authority rescinded an order dismissing the union's exceptions as untimely filed and reopened case for further processing); International Federation of Professional and Technical Engineers, Local 12 and Department of the Navy, Puget Sound Naval Shipyard, 26 FLRA 854 (1987) (on reconsideration the Authority rescinded a portion of an order in a previously issued decision and dismissed the union's petition for review as to that portion); National Association of Air Traffic Specialist and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169 (1986) (on reconsideration the Authority rescinded a decision setting aside an arbitrator's award of attorney fees and remanded the case to the parties to request the arbitrator to clarify his award).

Absent the parties' resolution of the dispute in this case, and consistent with section 2424.6 of the Authority's Rules and Regulations, the Agency's statement of position must be filed within 30 days from the date of service of this Order. Any Agency statement of position must be served on the Union and a statement of service must be included with the Agency's submission to the Authority. The Union has 15 days from the date of receipt of the Agency's statement of position to file a response with the Authority as provided for under 5 C.F.R. º 2424.7. Any Union response must be served on the Agency head designee and on the Agency's representative of record in the proceedings before the Authority, and a statement of service must be included with the Union's submission to the Authority.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ It is not the Authority's practice to notify the parties that it considers a response to an order to be in compliance with the order. The Authority's nonaction, in this respect, indicates compliance. The Authority will, however, notify the parties if a deficiency in the petition for review remains or when a petition for review is dismissed. See, for example, International Brotherhood of Electrical Workers, Local 2159 and U.S. Department of the Interior, Bureau of Reclamation, Salt Lake City, Utah, 37 FLRA 468 (1990); American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367 (1990).

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