54:0595(62)CA - - ACT, Silver Barrons Chapter, Reno, NV and HQ, NG, Washington, DC, Nevada Air NG, Reno, NV and Nevada Army NG, Reno, NV [ ACT = Association of Civilian Technicians; NG = National Guard ] - - 1998 FLRAdec CA - - v54 p595



[ v54 p595 ]
54:0595(62)CA
The decision of the Authority follows:


54 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

HEADQUARTERS, NATIONAL GUARD BUREAU

WASHINGTON, D.C.

NEVADA AIR NATIONAL GUARD

RENO, NEVADA

(Respondents)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

SILVER BARONS CHAPTER

RENO, NEVADA

(Charging Party)

DE-CA-60314

HEADQUARTERS, NATIONAL GUARD BUREAU

WASHINGTON, D.C.

NEVADA ARMY NATIONAL GUARD

RENO, NEVADA

(Respondents)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

SILVER SAGE CHAPTER

RENO, NEVADA

(Charging Party)

DE-CA-60347

_____

DECISION AND ORDER ON RECONSIDERATION

July 24, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on the General Counsel's motion for reconsideration of the Authority's decision in 54 FLRA 316 (1998) (Member Wasserman, dissenting in part). The Respondent did not file an opposition to the motion.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of the Authority's decision. For the reasons that follow, we grant the General Counsel's motion. On reconsideration, we reaffirm our decision in 54 FLRA 316.(1)

II. The Decision in 54 FLRA No. 39

This unfair labor practice case was decided by the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. The parties agreed that no material issue of fact exists. The Authority stated that both the Charging Parties and the Respondents filed briefs with the Authority. The Authority noted that the General Counsel did not file a brief.

In 54 FLRA No. 39, the Authority concluded that the Respondent Headquarters did not violate section 7116(a)(1) and (5) of the Statute, as alleged, by interfering with the local bargaining relationship between the Respondents Nevada Guards and their respective Unions. In particular, the Authority found nothing in two communications from the Respondent Headquarters to the Respondents Nevada Guards(2) that could be construed as directing the Nevada Guards to refuse to incorporate the Panel-imposed official time provision into their respective collective bargaining agreements. The Authority dismissed this portion of the complaint. See National Guards, 54 FLRA at 323.

With respect to the Respondents Nevada Guards' refusal to implement a Panel-imposed advisory arbitration provision, the Authority found that the General Counsel met its burden of making a prima facie showing that the Statute was violated when the Respondents Nevada Guards refused to incorporate the Panel-imposed provision in their collective bargaining agreement. The Authority also found that the Respondents failed to rebut this showing by establishing that the provision was unlawful. Under these circumstances, the Authority decided that the refusal constituted a violation of section 7116(a)(1), (5), (6), and (8) of the Statute and ordered the Respondents to incorporate the advisory arbitration provision into their collective bargaining agreements. See National Guards, 54 FLRA at 324.

Finally, with respect to the Respondents Nevada Guards' refusal to implement a Panel-imposed official time provision, the Authority determined that the provision was essentially identical to the proposal the Authority examined in Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301 (1998) (New Hampshire National Guard).(3) Because the Respondents challenged, and the Charging Parties responded, to the Panel-imposed official time provision on essentially the same grounds as those the Authority considered in New Hampshire National Guard, the Authority concluded, for the reasons set forth in New Hampshire National Guard, that the Panel-imposed official time provision was contrary to law and that the Respondents refusal to comply with the Panel's order did not violate the Statute. In reaching this conclusion, the Authority reaffirmed its holding in New Hampshire National Guard that the use of official time for union officials to lobby Congress is not prohibited by either 18 U.S.C. § 1913 or section 8001 of the 1996 DOD Appropriations Act. The Authority also reaffirmed its holding in New Hampshire National Guard that section 8015 of the 1996 DOD Appropriations Act expressly prohibits the use of official time for this purpose. Accordingly, the Authority dismissed this portion of the complaint. See National Guards, 54 FLRA at 325.

III. Motion for Reconsideration

In its motion for reconsideration, the General Counsel asserts that, contrary to the Authority's statement in footnote 2 of its decision in 54 FLRA 316, it did file a brief with the Authority. In support of its assertion, the General Counsel has provided a copy of its brief, including the certificate of service and a signed return receipt indicating that the brief was timely filed with the Authority. Because the Authority, "by its own admission, did not consider the . . . General Counse