American Federation of Government Employees, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, U.S. Marine Corps (Authority decision, August 29, 1995)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying reconsideration of a negotiability decision. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Council 240 asked the Authority to reconsider an earlier ruling that a proposed extended leave provision for Marine Corps employees was nonnegotiable. The union identified an error in the earlier decision's statement about substituting paid leave during Family and Medical Leave Act leave. The Authority agreed that civil service employees may choose that substitution and corrected the statement, but said the error had not affected its negotiability ruling. It rejected the union's other arguments about the agency's discretion to deny leave and found no extraordinary circumstances warranting reconsideration. The request was denied.

Decision snapshot

• Authority: Reconsideration under 5 C.F.R. § 2429.17; leave substitution under 5 U.S.C. § 6382(d).
• Outcome: Request for reconsideration denied; earlier nonnegotiability ruling remains in place.
• Key point: The Authority corrected an incidental statement about paid leave without changing the outcome.

Full text (FLRA public release)

[ v51 p49 ]
51:0049(5)NG

The decision of the Authority follows:

51 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

COUNCIL OF MARINE CORPS LOCALS

COUNCIL 240

(Union)

and

U.S. DEPARTMENT OF THE NAVY

U.S. MARINE CORPS

WASHINGTON, D.C.

(Agency)

0-NG-2207

(50 FLRA No. 83 (1995))

_____

ORDER DENYING REQUEST FOR
RECONSIDERATION

August 29, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on the Union's request for reconsideration of the Authority's decision in American Federation of Government Employees, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, U.S. Marine Corps, Washington, D.C., 50 FLRA No. 83 (1995) (Marine Corps). Because the Union fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we deny the request.

II. Decision in 50 FLRA No. 83

In Marine Corps, the Authority found nonnegotiable a provision that would have applied the provisions of the Family and Medical Leave Act (FMLA) to employees who are required to care for medical emergencies for certain persons who are not covered by the FMLA. The Authority found that, under section 7106(b)(3) of the Statute, the provision did not constitute an appropriate arrangement because it excessively interfered with management's right to assign work under section 7106(a)(2)(B). The Authority stated that the provision established "an absolute requirement that the Agency grant extended periods of LWOP in certain circumstances" and that it would result in "remov[ing] the Agency's discretion to deny leave based on its workload considerations." Slip op. at 5.

III. Request for Reconsideration

The Union asserts that the Authority misapplied and misinterpreted the provisions of the FMLA. First, the Union claims that the Authority erroneously stated, in footnote 1 of the decision, that civil service employees may be required to substitute accrued leave for any part of the 12-week leave period granted under the FMLA. The Union states that, under 5 U.S.C.
§ 6382(d), civil service employees may elect, but may not be required, to substitute such accrued leave. The Union acknowledges that footnote 1 of the decision is dicta, but asserts that it may be erroneously relied on in future cases.

Second, the Union disputes the Authority's statement that, under the provision, management would be required to grant an extended amount of leave without regard to workload or other considerations. The Union states that, under 5 U.S.C. § 6382(b), an employer retains the discretion to approve or deny, for workload reasons, an employee's request to take leave intermittently or on a reduced leave schedule and that, under 29 U.S.C.
§ 2614(b)(1), an employer may deny a request for leave where it would cause "substantial and grievous economic injury to the operations of the employer." Request at 5.

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Rules and Regulations, a party seeking reconsideration after the Authority has issued a final decision bears a heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, for example, U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84 (1995) (Scott Air Force Base) (identifying a limited number of situations in which extraordinary circumstances have been found to exist). We find no extraordinary circumstances in this case.

The Union is correct in stating that, under the FMLA, civil service employees cannot be required to substitute annual or sick leave for any or all of the 12-week period provided for under the FMLA.(*) Moreover, OPM regulations specify that "[a]n agency may not require an employee [of the civil service] to substitute paid time off . . . for any or all of the period of leave taken [under the FMLA]." 5 C.F.R. § 630.1205(d).

The Authority's statement to the contrary, in Marine Corps, slip op. at 2, n.1, was in error and we take this opportunity to correct it. However, as the Union acknowledges, that statement was dicta; it was not a factor in finding the provision nonnegotiable. Accordingly, this argument fails to establish extraordinary circumstances warranting reconsideration of the Authority's decision.

With regard to the Union's second argument, the Union errs in asserting that an employer may deny leave provided for by the FMLA for reasons of economic injury under 29 U.S.C. § 2614(b)(1). Section 2614(b)(1) pertains to an agency's denial of reinstatement of an employee returning from leave, not to the grant of leave itself. Similarly, the Union's reliance on 5 U.S.C. § 6382(b) is misplaced. Under that section, an agency and an employee may agree that the employee will be permitted to take leave intermittently or on a reduced leave schedule. However, section 6382(b) does not affect the FMLA's requirement that an agency grant an eligible employee up to 12 work weeks of leave at any time, leave which is not taken intermittently or on a reduced schedule. Accordingly, this argument does not establish extraordinary circumstances.

Based on the foregoing, we find that the Union has failed to establish extraordinary circumstances warranting reconsideration of the Authority's decision.

V. Order

The Union's request for reconsideration is denied.

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

*/ The Union cites 5 U.S.C.
§ 6382(d), which provides that civil service employees may elect to substitute accrued leave for any portion of their 12-week period of leave.