American Federation of Government Employees, Local 1164 (Union) and Social Security Administration, Worcester Field Office, Worcester, Massachusetts (Agency) (Authority decision, March 30, 2015)

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

The Social Security Administration changed interview assignments at its Worcester field office. The union proposed that employees not be held responsible for workload problems caused by the change. The Authority had ruled that the proposal interfered too much with management's ability to direct and discipline employees and assign work. The union sought reconsideration, arguing that the Authority had overlooked the proposal's limit to problems caused by management. The Authority found that it had already considered and rejected that argument. It denied reconsideration, leaving the earlier negotiability ruling in place.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2) and (b)(3); 5 C.F.R. § 2429.17
• Outcome: The union's motion for reconsideration was denied; the proposal remains outside the duty to bargain.
• Key point: Repeating an argument the Authority already considered does not meet the standard for reconsideration.

Full text (FLRA public release)

68 FLRA No. 72

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 1164

(Union)

and

SOCIAL SECURITY ADMINISTRATION

WORCESTER FIELD OFFICE

WORCESTER, MASSACHUSETTS

(Agency)

0-NG-3179

(67 FLRA 316 (2014))

_____

ORDER DENYING

MOTION FOR RECONSIDERATION

March 30, 2015

_____

Before the Authority: Carol Waller Pope, Chairman, and

Ernest DuBester and Patrick Pizzella, Members

I. Statement of the Case

This matter is before the Authority on the Union’s motion for reconsideration of the Authority’s decision in AFGE, Local 1164 (AFGE).[1] In AFGE, the Union filed a negotiability appeal (the petition) concerning the negotiability of a proposal intended to protect employees from “adverse actions and negative consequences” of the Agency’s decision to make changes to employees’ interviewing assignments.[2] The employees conduct interviews with individuals seeking Social Security and Supplemental Security Income benefits, and process documents that the individuals submit.

The Authority found that the proposal was not negotiable as an appropriate arrangement under § 7106(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute)[3] because the proposal excessively interfered with management’s rights. The Authority dismissed the petition for review. The Union then filed this motion for reconsideration.

The question before us is whether the Authority failed to consider one of the Union’s arguments regarding the proposal’s burdens on management’s rights and, if it did, whether the Authority should grant the Union’s motion for reconsideration. Because the Authority in AFGE rejected the argument to which the Union refers, and because a party’s attempt to relitigate a conclusion reached in an Authority decision does not provide a basis for reconsidering that decision, the answer is no.

II. Background

In AFGE, the Authority determined that the proposal – “[n]o employee shall be held responsible for any . . . workload problems caused by [m]anagement[’]s interviewing assignment changes”[4] – is not negotiable as an appropriate arrangement under § 7106(b)(3). In reaching its determination, the Authority applied the framework set forth in NAGE, Local R14-87 (KANG).[5]

The Authority assumed that the proposal was an “arrangement” under § 7106(b)(3) but, under the KANG test, found that the proposal was not “appropriate” because it excessively interfered with management’s rights. The proposal affected management’s rights to direct and discipline employees under § 7106(a)(2)(A) and to assign work under § 7106(a)(2)(B) of the Statute.[6]

The Authority found that the proposal’s burdens on the Agency’s exercise of these rights outweighed the proposal’s benefits to employees.[7] The Authority found the proposal’s burdens “significant” because: (1) “the proposal would completely preclude management from disciplining and holding employees accountable” for workload problems that are “associated with the Agency’s changes”; and (2) the proposal contains no exception that takes into account the seriousness of those workload problems.[8]

Weighing the proposal’s benefits and burdens, the Authority rejected the Union’s claim that “the proposal’s burdens on management are limited because the proposal allows management ‘discretion in performance appraisals, discipline, work assignment, etc.’ for performance deficiencies that are not related to the Agency’s changes.”[9] The Union argued, in the portion of its response to the Agency’s statement of position (response) that the Authority cited, that the proposal applied only to workload problems “caused by” or “attributable” to the Agency’s changes.[10] Conversely, the Union asserted, the proposal “would not provide protection . . . for workload problems caused by employees’ own acts, omissions, or errors not attributable to [the Agency’s] changes.”[11] But the Authority held that the discretion the proposal afforded the Agency regarding “unrelated” workload problems did not outweigh the complete “immunity afforded employees” concerning the workload problems to which the proposal applied.[12] Accordingly, the Authority held that the Union’s proposal is not an appropriate arrangement under § 7106(b)(3).[13]

Subsequently, the Union filed a motion for reconsideration of the Authority’s decision.

III. Analysis and Conclusions

The Union argues that the Authority erred because it did not consider one of the Union’s arguments regarding the proposal’s burdens on management’s rights and, if the Authority had considered the argument, it would have ruled differently.[14] Specifically, the Union contends that the Authority did not consider the Union’s argument that the proposal’s burdens on management’s rights are limited because the “proposal would provide immunity only for workload problems caused by management’s changes . . . and not for those workload problems caused or exacerbated by an employee’s own fault.”[15]

Section 2429.17 of the Authority’s Regulations permits a party to request reconsideration of an Authority decision.[16] But a party seeking reconsideration “bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action.”[17]

The Union’s reconsideration request is premised on the claim that the Authorityfailed to consider an argument concerning the proposal’s burdens on management’s rights. But the Authority considered and rejected the argument to which the Union refers when it concluded that the proposal was not an appropriate arrangement even though it “allows management ‘discretion in performance appraisals, discipline, work assignment, etc.’ for performance deficiencies that are not related to the Agency’s changes.”[18] The Union’s discussion in the portion of its response that the Authority cited in its decision, and in related portions of the response, makes this clear. In its response, the Union addressed the impact on management’s rights of whether a workload problem was “caused by” or “attributable to” the Agency’s changes, or whether it was “caused by” an employee and not “attributable to” the Agency’s changes.[19] Thus, the premise of the Union’s reconsideration request is wrong. Rather, the Union is attempting to relitigate conclusions that the Authority reached in AFGE. But an attempt to relitigate a conclusion reached in an Authority decision does not provide a basis for granting reconsideration of that decision.[20] Therefore, the Union’s arguments do not provide a basis for granting the Union’s motion.

IV. Decision

We deny the Union’s motion for reconsideration.

[1] 67 FLRA 316 (2014) (Member Pizzella concurring).

[2] Id. at 316 (quoting Pet. at 5) (internal quotation marks omitted).

[3] 5 U.S.C. § 7106(b)(3).

[4] AFGE, 67 FLRA at 316 (quoting Pet. at 4)

[5] 21 FLRA 24 (1986).

[6] AFGE, 67 FLRA at 319.

[7] Id.

[8] Id. at 318.

[9] Id. (quoting Resp. at 47).

[10] Resp. at 47.

[11] Id. at 42.

[12] AFGE, 67 FLRA at 318.

[13] Id.

[14] Mot. for Recons. at 2, 5.

[15] Id. at 5 (emphasis omitted).

[16] 5 C.F.R. § 2429.17.

[17] NAIL, Local 15, 65 FLRA 666, 667 (2011) (NAIL).

[18] AFGE, 67 FLRA at 318 (quoting Resp. at 47).

[19] Resp. at 47.

[20]See U.S. Dep’t of the Treasury, IRS, 67 FLRA 58, 60 (2012); NAIL, 65 FLRA at 667; SPORT Air Traffic Controllers Org., 64 FLRA 1142, 1143 (2010).