Headquarters, National Guard Bureau, Nevada Air National Guard, and Nevada Army National Guard and Association of Civilian Technicians, Silver Barons and Silver Sage Chapters (Authority decision, July 24, 1998)

Final FLRA decision. The Authority grants reconsideration of an unfair labor practice decision because it had overlooked a timely brief, then reaffirms its prior decision and order. An aggrieved person may petition an appropriate United States court of appeals for review of a final Authority order within 60 days after issuance under 5 U.S.C. § 7123(a). A petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The National Guard Bureau and two Nevada Guard units faced unfair labor practice complaints over provisions imposed by the Federal Service Impasses Panel. The Authority's earlier decision found that the units had unlawfully refused to adopt an advisory arbitration provision, but rejected claims concerning an official time provision and headquarters' communications. The General Counsel requested reconsideration after showing that the Authority had mistakenly said no General Counsel brief had been filed, although one had been timely served. The Authority granted reconsideration, read the brief, and found that its arguments had already been addressed. It reaffirmed the earlier decision and order, leaving the split result in place.

Decision snapshot

• Authority: 5 C.F.R. § 2429.17; unfair labor practice provisions in 5 U.S.C. § 7116(a).
• Outcome: Reconsideration granted for a process error; prior decision and order reaffirmed, including the advisory arbitration violation and dismissed claims.
• Key point: Overlooking a timely brief justified reconsideration, but its arguments did not change the earlier result.

Full text (FLRA public release)

[ v54 p595 ]
54:0595(62)CA

The decision of the Authority follows:

54 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

HEADQUARTERS, NATIONAL GUARD BUREAU

WASHINGTON, D.C.

NEVADA AIR NATIONAL GUARD

RENO, NEVADA

(Respondents)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

SILVER BARONS CHAPTER

RENO, NEVADA

(Charging Party)

DE-CA-60314

HEADQUARTERS, NATIONAL GUARD BUREAU

WASHINGTON, D.C.

NEVADA ARMY NATIONAL GUARD

RENO, NEVADA

(Respondents)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

SILVER SAGE CHAPTER

RENO, NEVADA

(Charging Party)

DE-CA-60347

_____

DECISION AND ORDER ON
RECONSIDERATION

July 24, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on the General Counsel's motion for reconsideration of the Authority's decision in 54 FLRA 316 (1998) (Member Wasserman, dissenting in part). The Respondent did not file an opposition to the motion.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of the Authority's decision. For the reasons that follow, we grant the General Counsel's motion. On reconsideration, we reaffirm our decision in 54 FLRA 316.(1)

II. The Decision in 54 FLRA No. 39

This unfair labor practice case was decided by the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. The parties agreed that no material issue of fact exists. The Authority stated that both the Charging Parties and the Respondents filed briefs with the Authority. The Authority noted that the General Counsel did not file a brief.

In 54 FLRA No. 39, the Authority concluded that the Respondent Headquarters did not violate section 7116(a)(1) and (5) of the Statute, as alleged, by interfering with the local bargaining relationship between the Respondents Nevada Guards and their respective Unions. In particular, the Authority found nothing in two communications from the Respondent Headquarters to the Respondents Nevada Guards(2) that could be construed as directing the Nevada Guards to refuse to incorporate the Panel-imposed official time provision into their respective collective bargaining agreements. The Authority dismissed this portion of the complaint. See National Guards, 54 FLRA at 323.

With respect to the Respondents Nevada Guards' refusal to implement a Panel-imposed advisory arbitration provision, the Authority found that the General Counsel met its burden of making a prima facie showing that the Statute was violated when the Respondents Nevada Guards refused to incorporate the Panel-imposed provision in their collective bargaining agreement. The Authority also found that the Respondents failed to rebut this showing by establishing that the provision was unlawful. Under these circumstances, the Authority decided that the refusal constituted a violation of section 7116(a)(1), (5), (6), and (8) of the Statute and ordered the Respondents to incorporate the advisory arbitration provision into their collective bargaining agreements. See National Guards, 54 FLRA at 324.

Finally, with respect to the Respondents Nevada Guards' refusal to implement a Panel-imposed official time provision, the Authority determined that the provision was essentially identical to the proposal the Authority examined in Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301 (1998) (New Hampshire National Guard).(3) Because the Respondents challenged, and the Charging Parties responded, to the Panel-imposed official time provision on essentially the same grounds as those the Authority considered in New Hampshire National Guard, the Authority concluded, for the reasons set forth in New Hampshire National Guard, that the Panel-imposed official time provision was contrary to law and that the Respondents refusal to comply with the Panel's order did not violate the Statute. In reaching this conclusion, the Authority reaffirmed its holding in New Hampshire National Guard that the use of official time for union officials to lobby Congress is not prohibited by either 18 U.S.C.
§ 1913 or section 8001 of the 1996 DOD Appropriations Act. The Authority also reaffirmed its holding in New Hampshire National Guard that section 8015 of the 1996 DOD Appropriations Act expressly prohibits the use of official time for this purpose. Accordingly, the Authority dismissed this portion of the complaint. See National Guards, 54 FLRA at 325.

III. Motion for Reconsideration

In its motion for reconsideration, the General Counsel asserts that, contrary to the Authority's statement in footnote 2 of its decision in 54 FLRA 316, it did file a brief with the Authority. In support of its assertion, the General Counsel has provided a copy of its brief, including the certificate of service and a signed return receipt indicating that the brief was timely filed with the Authority. Because the Authority, "by its own admission, did not consider the . . . General Counsel's brief in reaching its decision
. . . the General Counsel moves for reconsideration of the Authority's decision." Motion for Reconsideration at 2.

In its brief, the General Counsel argues that the Respondent Headquarters interfered with the bargaining relationship between the Respondents Nevada Guards and their respective unions in violation of section 7116(a)(1) and (5) of the Statute by advising the facilities that the Panel-imposed official time provision was contrary to law. The General Counsel states that, although the Respondent Headquarters did not explicitly direct the Nevada Guards to refuse to abide by the Panel decision, the communications from the Respondent Headquarters to the Nevada Guards "were undoubtedly written with the intent that the local facilities would follow them." Motion for Reconsideration, Attachment 1 at 21 (General Counsel's Brief).

The General Counsel also asserts in its brief that the Respondents Nevada Guards violated section 7116(a)(1), (5), (6), and (8) of the Statute by refusing to incorporate the Panel-imposed official time and advisory arbitration provisions into their respective collective bargaining agreements. With respect to the official time provision, the General Counsel states that the Authority specifically concluded in Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3231, 11 FLRA 7 (1983) that 18 U.S.C. § 1913 does not prohibit union officials from using official time to lobby Congress. See id. at 17. Thus, the General Counsel asserts that the Respondents Nevada Guards' argument that the official time provision is contrary to law has been "raised and rejected by the Authority." Id. at

18. With respect to the advisory arbitration provision, the General Counsel
    notes that the Respondents Nevada Guards' only claim is that the provision "is not illegal, it is just unreasonable." Id

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 86-87 (1995) (Scott Air Force Base). In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that the Authority erred in its remedial order, process, conclusion of law, or factual finding.

In National Guards, 54 FLRA at 317 n.2, the Authority stated that "the General Counsel did not file a brief." The General Counsel has provided the Authority with a copy of its certificate of service, including a signed return receipt, indicating that a brief in this matter was served on the Authority on October 7, 1996. See Motion for Reconsideration, Attachment

2. As such, the General Counsel has established that the Authority erred in its
   process. See United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 29 FLRA 482, 483-84 (1987); Portsmouth Naval Hospital, Portsmouth, Virginia, 28 FLRA 1007 (1987). Accordingly, we grant the General Counsel's Motion for Reconsideration.

We have given full consideration to the General Counsel's brief. Each of the arguments advanced by the General Counsel was addressed in 54 FLRA 316, and we find no additional information in the General Counsel's brief that would have altered our final decision in this case. Accordingly, we reaffirm our Decision and Order in this matter.

V. Order

On review, we reaffirm our Decision and Order in 54 FLRA 316.

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

1. Member Wasserman joins in the
   Authority's decision granting the General Counsel's motion for reconsideration. However, Member Wasserman reaffirms his separate opinion, dissenting in part, in Headquarters, National Guard Bureau, Washington, D.C., Nevada Air National Guard, Reno, Nevada, 54 FLRA 316 (1998) (National Guards).

2. The term "Nevada Guards" refers to
   the Nevada Air National Guard and the Nevada Army National Guard.

3. In New Hampshire National
   Guard the Authority concluded that the use of official time for union officials to lobby Congress was not prohibited by either 18 U.S.C. § 1913 or section 8001 of the 1996 Department of Defense (DOD) Appropriations Act. However, the Authority found in New Hampshire National Guard that section 8015 of the 1996 DOD Appropriations Act expressly prohibits the use of official time for this purpose.