72 FLRA No. 143                                                                                                                                                              

 

DEPARTMENT OF DEFENSE

DOMESTIC DEPENDENT

ELEMENTARY AND SECONDARY SCHOOLS

FORT BUCHANAN, PUERTO RICO

(Respondent)

 

and

 

ANTILLES CONSOLIDATED

EDUCATION ASSOCIATION

(Charging Party)

 

BN‑CA‑17‑0170

(71 FLRA 127 (2019))

(71 FLRA 359 (2019))

(72 FLRA 414 (2021))

 

_____

 

ORDER DISMISSING

MOTION FOR RECONSIDERATION

 

March 30, 2022

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

(Chairman DuBester concurring; Member Abbott dissenting)

 

I.             Statement of the Case

 

In the original decision in this case,[1] after finding that the Agency committed certain unfair labor practices (ULPs), the Authority ordered the parties to resume bargaining over provisions of their successor collective‑bargaining agreement (successor agreement) that concerned work hours and compensation.[2]  More than two years after that decision, the Union has filed a motion asking us to reconsider parts of the bargaining order.  Because motions for reconsideration must be filed within ten days of a final decision or order,[3] the Union’s reconsideration motion is untimely, and we dismiss it accordingly.

 

II.            Background and Previous Decisions

 

The details of this dispute are thoroughly set forth in three previous Authority decisions and orders,[4] and we only briefly summarize pertinent details here.  Among the provisions of the parties’ successor agreement, Article 19, Section 1 concerns work hours; and Article 26 and Appendix F concern compensation.

 

In the original 2019 decision, the Authority found that the Agency committed ULPs under § 7116(a)(1), (5), and (6) of the Federal Service Labor‑Management Relations Statute.[5]  In its remedial order, the Authority directed the parties to “resume bargaining over the matters addressed in Article 19, Section 1, Article 26, and Appendix F.”[6]

 

The Union appealed the original decision, but the U.S. Court of Appeals for the District of Columbia Circuit denied that appeal in all respects but one.^[7]  Specifically, the court set aside the Authority’s finding that a portion of Article 19, Section 1 was nonnegotiable,[8] and the court remanded the case to the Authority for further proceedings consistent with the court’s opinion.[9]

 

On remand, the Authority vacated its previous negotiability determination concerning Article 19, Section 1, but decided that it need not render another negotiability determination at that time.[10]  The Authority’s decision on remand concluded by noting that the “order from our original decision remains unchanged.”[11]  On July 7, 2021, the Union filed its reconsideration motion.

 

III.          Analysis and Conclusion:  We dismiss the reconsideration motion as untimely.

 

The Union asserts that it is moving for reconsideration of the Authority’s decision on remand, and the motion requests that the Authority “rescind” the order to “renegotiate Article 19, [S]ection 1, Article 26[,] and Appendix F.”[12]  A motion for reconsideration “shall be filed within ten . . . days after service of the Authority’s decision or order.”[13]  In disputes giving rise to multiple Authority decisions, a motion for reconsideration must be filed within ten days of the decision that first set forth the determination for which reconsideration is sought.[14]  Here, the Authority’s original 2019 decision first set forth the order to resume bargaining,[15] and the Authority’s decision after remand expressly noted that it did not change anything about that order.[16]  Further, the present reconsideration motion directly challenges the unchanged 2019 bargaining order.[17]  Thus, we dismiss the untimely motion because the Union filed it more than two years after the bargaining order.

 

IV.          Order

 

We dismiss the motion for reconsideration.

 

 

Chairman DuBester, concurring:

 

For the reasons expressed in my dissent in that case, I continue to disagree with the Authority’s decision in DOD, Domestic Dependent Elementary and Secondary Schools, Fort Buchanan, Puerto Rico.1  However, under the circumstances of this case, I agree with the Decision to dismiss the Union’s motion for reconsideration.2

 

 

 

Member Abbott, dissenting:

 

I cautioned my colleagues in DOD, Domestic Dependent Elementary & Secondary Schools, Fort Buchanan, Puerto Rico (Fort Buchanan III) that a remand back to the parties was ill-advised after the United States Court of Appeals for the District of Columbia Circuit (the Court) rejected our finding that the Union had “conceded” to the Agency’s characterization of Article 19, Section 1.1  As I noted, the Court “expect[ed] us to determine which argument is the more reasonable and whether the provision is or is not negotiable”2 in light of their conclusion that the Union had “vigorously contested” the Agency’s characterization of the workday provision.3 

 

In the underlying petition and the instant reconsideration, the Agency and Union submitted sufficiently‑argued positions from which we could have issued a reasoned decision ­–­ considering the fact that the Union had challenged, and not conceded, to the Agency’s characterization – that would have ended this seven‑year dispute.  That my colleagues would not take that step not only failed to bring it to an end, but, quite predictably, has made it run on even longer.4 

 

Now, the majority concludes that the Union’s request for reconsideration is untimely.  In reaching that conclusion, my colleagues rely on cases dealing with motions for reconsideration to Authority orders that remanded matters to the parties for resubmission to an arbitrator, not a remand order from a Court.5  Therefore, those cases are not dispositive.

 

Here, the Union appealed our decision in DOD, Domestic Dependent Elementary & Secondary Schools, Fort Buchanan, Puerto Rico (Fort Buchanan I) to the Court.6  When the Court directed us to reconsider our negotiability determination, the 2019 Order to resume bargaining, which was based on that determination was superseded, if not invalidated.7  Therefore, in light of the intervening appeal, the 2021 Order was in all practical and rationale respects a new order from which the Union may seek reconsideration.

 

Thus, I do not agree that the Union’s decision not to seek reconsideration of the 2019 Order makes this request untimely.  In every respect, the Union’s motion for reconsideration is timely and presents extraordinary circumstances that warrant reconsideration.  I also agree with the Union that the order to resume negotiations on proposals that are about to expire is unreasonable.

 

Therefore, I dissent.