Department of Health and Human Services, Regional Personnel Office, Seattle, Washington and Jeffrey A. Saul (Authority decision, August 17, 1993)

Final FLRA decision. The Authority denies the agency's request to reconsider its unfair labor practice ruling and leaves that ruling in place. An aggrieved person may seek judicial review of a covered final order within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The Department of Health and Human Services personnel office in Seattle had refused to credit an applicant's federal union experience when assessing his qualifications for a position. The Authority had found that refusal to be an unfair labor practice. The agency requested reconsideration, arguing that its approach maintained neutrality toward union activity. The Authority held that the agency was repeating arguments about the merits, not showing the extraordinary circumstances required for reconsideration. It denied the request, leaving the earlier ruling in place.

Decision snapshot

• Authority: Reconsideration under 5 C.F.R. § 2429.17; underlying unfair labor practice under 5 U.S.C. § 7116(a)(1) and (2).
• Outcome: Agency's reconsideration request denied; prior decision remains in effect.
• Key point: Disagreement with an earlier decision does not establish extraordinary circumstances for reconsideration.

Full text (FLRA public release)

[ v48 p245 ]
48:0245(20)CA

The decision of the Authority follows:

48 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGIONAL PERSONNEL OFFICE

SEATTLE, WASHINGTON

(Respondent/Agency)

and

JEFFREY A. SAUL, AN INDIVIDUAL

(Charging Party)

SF-CA-20065

(47 FLRA 1338 (1993))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

August 17, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on the Respondent's request for reconsideration of our decision in 47 FLRA 1338 (1993). The General Counsel has filed an opposition to the Respondent's request. The Charging Party did not file a response to the request.

For the following reasons, we conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Respondent's request for reconsideration.

II. Our Decision in 47 FLRA 1338

In 47 FLRA 1338, the Authority found that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to credit the Charging Party's Federal union experience in determining his qualifications for a position. In so doing, we rejected the Respondent's argument that it prohibited consideration of such experience to ensure compliance with section 7116(a)(2) of the Statute. We noted, in this regard, that there was no evidence that "the Respondent refused to credit any relevant experience or category of relevant experience, other than Federal union activity." Id. at 1342. We also noted that a policy "which makes no distinctions based on union activity appears to promote management neutrality with regard to its treatment of employees who do, and do not, choose such actions." Id. at 1343.

III. Request for Reconsideration

The Respondent contends that the Authority should reconsider its decision in 47 FLRA 1338 because the Authority did not address "two major elements of the agency's argument in defense of it actions." Request at 1. The Respondent claims that the Authority did not consider its arguments that:

(1) the agency is required to maintain strict neutrality with regard to an employee's protected activities so as not to encourage or discourage an employee in the exercise of such activity; and,

(2) "protected activity" does not equate to "outside activity," and an employee engaged in "protected" activity is not similarly situated to an employee engaged in "outside" activity.

Id. at 1-2 (emphasis in original).

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. The Respondent fails to establish such "extraordinary circumstances" in this case.

The arguments presented by the Respondent in support of its request for reconsideration constitute nothing more than disagreement with our decision in 47 FLRA 1338 and are an attempt to relitigate the merits of the case. As such, these arguments do not demonstrate extraordinary circumstances within the meaning of section 2429.17. See, for example, U.S. Department of Health and Human Services, Public Health Service, Indian Health Service, Indian Hospital, Rapid City, South Dakota, 38 FLRA 867, 869 (1990). Accordingly, we will deny the Respondent's request for reconsideration.

V. Order

The Respondent's request for reconsideration of the Authority's Decision and Order in 47 FLRA 1338 is denied.

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