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30 FLRA NO. 7
30 FLRA 29

12 NOV 1987


AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 1760

                   Union

      and


DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION

                   Agency

Case No. O-NG-1181
(28 FLRA NO. 26)

DECISION AND ORDER ON MOTION FOR RECONSIDERATION

     This matter is before the Authority pursuant to the Agency's
request for reconsideration of the Authority's Decision and Order
on Negotiability Issues in 28 FLRA  No. 26, dated July 23, 1987.
In that decision, we determined that Provisions 1 through 6 were
within the duty to bargain and that Provision 7 was outside the
duty to bargain. The Agency also requests that we order a stay of
our decision in 28 FLRA  No. 26 pending our review of the
Agency's request for reconsideration. The Union opposed the
Agency's requests. For the reasons discussed below, we grant in
part the Agency's request for reconsideration and deny it in
part.

     In its request for reconsideration, the Agency first
contends that the Authority's decision in this case is based on a
nonfact and constitutes an erroneous interpretation of the record
evidence. In support of this contention, the Agency argues that
the Union's appeal resulted from the Agency's allegations of
nonnegotiability rather than, as stated in the decision, an
Agency head disapproval of a locally negotiated agreement.

     The Agency is correct in noting that the nature of this case
before the Authority was incorrectly set forth in our
decision. Accordingly, under section 2429.17 of our Regulations,
we grant this aspect of the Agency's request for reconsideration
and modify our Decision and Order as follows: (1) the Statement
of the Case is revised to 'show that the Union appealed to the
Authority from an Agency allegation of nonnegotiability rather
than from an Agency head disapproval of a locally negotiated
agreement; (2) "Provisions" 1 through 6 in the decision are
redesignated as "Proposals" 1 through 6; and (3) the Union's
petition for review as to the second sentence of Proposal 4 and
Proposal 5 is dismissed because the Agency has not alleged that
these proposals are inconsistent with law, rule or regulation and
thus there is no negotiability dispute concerning these proposals
as to which we can accept jurisdiction. Should the Agency
subsequently allege that the proposals are inconsistent with law,
rule or regulation, the Union is not foreclosed by our decision
from petitioning the Authority for review of the Agency's
allegations. See American Federation of Government Employees,
Local 12, AFL - CIO and Department of Labor, 26 FLRA  768
(1987).

     As its second contention, the Agency argues that the
Authority's decision is based on record evidence which was not
submitted in accordance with the Authority's Regulations. In
support of this contention, the Agency first notes that although
the decision states that the Union's petition sought review of
two additional provisions, the petition which was served on the
Agency did not contain those additional proposals. We correct the
record to reflect that those two proposals were contained in the
Union's request for an allegation of nonnegotiability from the
Agency, but were not part of the Union's petition for review.

     In connection with its second contention, the Agency also
references the Authority's ruling as to the timeliness of the
Union's petition for review. Our decision as to the timeliness of
the petition was based on the determination that the evidence
submitted by both parties on that issue was conflicting, and that
in those circumstances the date of the Agency's allegation of
nonnegotiability was used as the date of service of the Union's
petition for review. See section 2424.3 and sections 2429.21 and
2429.22 of the Authority's Rules and Regulations. Based on that
date, the petition for review was timely filed.

     As to the Agency's remaining contentions, we find that the
Agency has not established &extraordinary circumstances' within
the meaning of section 2429.17 of our Regulations 
necessary to warrant granting reconsideration. Rather, the
arguments presented by the Agency simply constitute disagreement
with the merits of the negotiability determinations made in the
decision and are an attempt to relitigate the substance of those
determinations. Accordingly, the remaining portion of the
Agency's request for reconsideration is denied.

     The substantive negotiability determinations made in the
decision are unaffected by the granting in part of the Agency's
request for reconsideration. The Order in this case is modified
to read as follows:

     The Agency must upon request, or as otherwise agreed to by
the parties, bargain concerning Proposals 1-3, the first sentence
of Proposal 4 and Proposal 6. The petition for review as to the
second sentence of Proposal 4, Proposal 5 and Proposal 7 is
dismissed.

     The Agency's motion for a stay is dismissed as moot.

     Issued, Washington, D.C., November 12, 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY

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