American Federation of Government Employees, Local 1760 and Department of Health and Human Services, Social Security Administration (Authority decision, November 12, 1987)

Final FLRA decision. The Authority grants reconsideration in part, corrects its earlier negotiability order, and dismisses part of the union's petition for lack of a ripe dispute. 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).

Plain-English summary

The Social Security Administration asked the Authority to reconsider a ruling on seven union proposals. The Authority agreed it had incorrectly described the case as review of an agency head's disapproval of a local agreement, when the union had appealed the agency's allegations of nonnegotiability. It corrected that description and dismissed review of two proposal portions for which the agency had made no nonnegotiability allegation. The other substantive negotiability rulings stayed in place: the agency had to bargain over Proposals 1 through 3, the first sentence of Proposal 4, and Proposal 6. The Authority denied the remaining reconsideration arguments and dismissed the stay request as moot.

Decision snapshot

• Authority: Reconsideration under 5 C.F.R. § 2429.17.
• Outcome: Reconsideration granted in part; bargaining ordered on five proposal portions; review of the others dismissed.
• Key point: Without an agency allegation of nonnegotiability, there was no dispute for the Authority to review on two proposal portions.

Full text (FLRA public release)

[ v30 p29 ]

30:0029(7)NG

The decision of the Authority follows:

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