74 FLRA No. 13

 

SPORT AIR TRAFFIC

CONTROLLERS ORGANIZATION

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF THE AIR FORCE

412 TEST WING

EDWARDS AIR FORCE BASE, CALIFORNIA

(Agency)

 

0-AR-5929

(73 FLRA 830 (2024))

 

_____

 

ORDER DENYING

MOTION FOR RECONSIDERATION

AND CLARIFICATION

 

October 17, 2024

 

_____

 

Before the Authority:  Susan Tsui Grundmann, Chairman, and Colleen Duffy Kiko and Anne Wagner, Members

 

I.            Statement of the Case

 

The Union requests reconsideration of the Authority’s decision, and clarification of the concurring opinion, in SPORT Air Traffic Controllers Organization (SPORT).[1]  For the reasons discussed below, we deny the Union’s motion for reconsideration and clarification (motion).

 

II.            Background and Authority’s Decision in SPORT

 

The facts, summarized here, are set forth in greater detail in SPORT.[2]

 

After the parties began bargaining over ground rules for negotiating a successor agreement to their 1994 collective-bargaining agreement (the 1994 CBA), the Agency filed an unfair-labor-practice (ULP) charge, alleging the Union unlawfully refused to recognize the Agency’s designated bargaining representatives, and notified the Union that it planned to unilaterally implement its last, best proposal as the parties’ new CBA.  The Union filed a ULP charge, alleging the Agency’s notification was a failure to bargain in good faith.  An Administrative Law Judge found the Union acted unlawfully as the Agency had alleged, and the Agency implemented its last, best proposal – a document that the Authority referred to in SPORT, and which we mostly refer to here, as “the 2017 CBA.”[3]  The Union amended its ULP charge to allege the unilateral implementation of the 2017 CBA was unlawful, but later withdrew that charge.

 

The Union continued to challenge the 2017 CBA’s validity by filing numerous ULP charges, grievances, and appeals, which were all denied or withdrawn.  In 2020, the Agency notified the Union that it planned to impose a new agreement to replace the 2017 CBA.  The Union filed a new ULP charge in Case No. SF-CA-21-0002, alleging the 1994 CBA was still in effect and the Agency was refusing to comply with it.  To resolve that charge, a Federal Labor Relations Authority (FLRA) Regional Director (the RD) and the Agency reached a settlement agreement, to which the Union was not a party.  Among other things, the Agency agreed to restore the conditions of employment established by the 2017 CBA and arbitration awards interpreting that CBA.  The Union appealed the settlement agreement to the FLRA’s Office of the General Counsel, arguing the 1994 CBA was still in effect.  The FLRA’s Acting General Counsel (Acting GC) denied that appeal.

 

The Agency implemented the settlement agreement, and the Union filed a grievance that went to arbitration.  The Arbitrator determined that, in SF‑CA‑21‑0002, the RD found “the 2017 [CBA] ended the 1994 CBA”; the Acting GC “reaffirmed the 2017 [CBA]”; and, “[h]ence, the 2017 CBA is the valid agreement” and “the 1994 CBA is not valid.”^[4]  The Arbitrator found the grievance was not arbitrable.

 

The Union filed exceptions to the award.  The Union claimed the Agency’s 2023 reimplementation of the 2017 CBA “ha[d] not been heard in any forum.”[5]  The Authority rejected that claim, finding “[i]t was the subject of the ULP charge, the settlement agreement, and the subsequent appeal to the Acting GC in SF-CA-21-0002.”[6]  The Authority determined that, “[a]s a result of that legal process, the conditions of employment established by the 2017 CBA (and arbitration awards applying that CBA) [were] in effect.”[7]

 

In addition, the Union – citing NTEU v. FLRA (NTEU)[8] – claimed the 1994 CBA, not the 2017 CBA, was in effect due to a continuance clause in the 1994 CBA.  The Authority found NTEU “stands for the proposition that, as a general matter, a party’s invocation of a CBA’s continuance clause results in the CBA remaining in effect until the parties negotiate a successor CBA.”[9]  “However,” the Authority continued, “NTEU did not hold that a continuance clause extends an existing CBA indefinitely, regardless of subsequent events.”[10]  The Authority found that “subsequent events – including litigation – [had] demonstrated the 1994 CBA [was] no longer in effect.”[11]  Therefore, the Authority found the Union’s reliance on NTEU misplaced.

 

The Authority, with Chairman Grundmann concurring, denied the Union’s exceptions.  On March 28, 2024, the Union filed the motion.

 

III.         Analysis and Conclusion:  We deny the motion.

 

The Union argues the Authority should reconsider SPORT for two reasons.[12]  Section 2429.17 of the Authority’s Regulations permits a party to move for reconsideration of an Authority decision.[13]  A party seeking reconsideration bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action.[14]  Errors in the Authority’s remedial order, process, conclusions of law, or factual findings may justify granting reconsideration.[15]  However, mere disagreement with, or attempts to relitigate, the Authority’s conclusions are insufficient to establish extraordinary circumstances.[16]  Further, arguments or alleged Authority errors that have no effect on the outcome of the underlying Authority decision do not provide a basis for granting reconsideration.[17]

 

First, the Union argues the Authority misapplied NTEU.[18]  The Union argues that, under NTEU, a CBA with a continuance clause extends indefinitely until the parties negotiate and implement a successor agreement.[19]  The Union contends the decision in NTEU requires the Authority to find the 1994 CBA is still in effect because the parties never negotiated a successor agreement.[20]

 

The Union’s arguments merely attempt to relitigate the conclusions the Authority reached in SPORT regarding NTEU and ignore the Union’s litigation history over the same issue.[21]  As such, they do not establish extraordinary circumstances warranting reconsideration of SPORT.[22]

 

Second, the Union challenges the Authority’s characterization of the Agency’s 2017 last, best proposal as a “CBA.”[23]  According to the Union, the 2017 CBA is not actually a CBA within the meaning of § 7103(a)(8) of the Federal Service Labor‑Management Relations Statute (the Statute)[24] because:  the Agency unilaterally wrote and implemented it; it is unsigned; and even its own terms require execution – an event that never occurred – before it can take effect.[25]

 

 The only question before the Authority in SPORT was whether the Union demonstrated the Arbitrator erred in finding the Union’s grievance non-arbitrable.  Although the Authority referred to the last, best offer implemented by the Agency in 2017 as the “2017 CBA,”[26] it neither ruled on whether this document constitutes a CBA within the meaning of § 7103(a)(8) of the Statute nor based its decision upon such a determination.  Rather, the Authority found “the Agency’s 2023 reimposition of” that document had been resolved through prior litigation and that, “[a]s a result of that legal process, the conditions of employment established by the 2017 CBA (and arbitration awards applying that CBA) [were] in effect.”[27]  The Union has not demonstrated how this reference affected the Authority’s decision in SPORT.  As such, the argument provides no basis for granting reconsideration.[28]

 

Finally, the Union requests clarification of a statement included in SPORT’s concurring opinion.[29]  Even assuming that the Union may file a motion for clarification of Authority decisions,[30] separate opinions are not part of an Authority majority decision.[31]  The Union provides no argument that the Authority’s decision in SPORT is unclear.  Therefore, we deny the Union’s request for clarification.

 

IV.         Order

 

We deny the Union’s motion for reconsideration and clarification.

 

 

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