57 FLRA No. 17

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on the Agency's motion for reconsideration of the Authority's decision in Association of Civilian Technicians, Wichita Air Capitol Chapter, 56 FLRA 1027 (2000) (Wichita Air Chapter). The Union filed an opposition to the Agency's motion.

      For the reasons that follow, we deny the Agency's motion.

II.     Decision in Wichita Air Chapter

      In Wichita Air Chapter, the Authority found that a provision establishing a crediting plan to be used in the process of selecting among candidates for bargaining unit positions was not contrary to law. Prior to issuing its decision, and in view of the fact that the parties disputed the meaning of the provision, the Authority ordered the parties to supplement the record with an explanation of how they had interpreted the provision when they bargained on, and agreed to, it. Considering the parties supplemental submissions, and the record as a whole, the Authority adopted an interpretation of the provision and resolved the negotiability dispute. In particular, the Authority noted that the parties agreed that there was no dispute as to bargaining history. The Authority also noted that the Agency provided no evidence that the interpretation of the provision it had adopted in disapproving the provision was the same interpretation it adopted when it bargained on, and agreed to it, at the local level.

      Moreover, the Authority noted that the Union's interpretation of the disputed provision in this case was consistent with the interpretation it had adopted for a substantially similar proposal in Association of Civilian Technicians, Heartland Chapter, 56 FLRA 236 (2000) (Heartland Chapter). [n2] Although the proposal in Heartland Chapter contained an additional subsection, the Authority noted that the subsection, differentiating the proposal in Heartland Chapter from the provision in this case, had been adopted by the Union to clarify for and confirm to the Authority that "the wording meant exactly what the Union claimed it meant." Wichita Air Chapter, 56 FLRA at 1028.

      Based on the record, the Authority found that the crediting plan established by the provision "does not preclude the Agency from developing a different crediting plan using different weights for the KSAs [knowledge, skills, and abilities] identified and providing rating and ranking information derived thereunder to the selecting official at the same time and for the same candidates as the information developed under the provision." Wichita Air Chapter, 56 FLRA at 1029. As such, the Authority found that the provision did not conflict with an Agency regulation for which a compelling need was alleged to exist and that the provision was not barred by § 7117(b) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2424.50 of the Authority's Regulations. The Authority also found, consistent with the analysis in Heartland Chapter, that the provision did not affect management's right to select under § 7106(a)(2)(C) of the Statute. Consequently, the Authority ordered the Agency to rescind its disapproval of the provision.

III.     Agency's Motion for Reconsideration

      The Agency requests reconsideration on the basis that the Authority: (1) "misread/misapplied the Agency's statement in the Post-Petition Conference"; and (2) "departed from its precedent in determining the meaning of contractual language without clearly articulating its reason for doing so." Motion for Reconsideration at 1 (Motion). [ v57 p51 ]

      As to the first ground for reconsideration, the Agency contends that the Authority mistakenly stated, in Wichita Air Chapter, that the Agency did not challenge the Union's explanation of the provision during the Post-Petition Conference. In support of its contention, the Agency cites the Record of the Post-Petition Conference as stating: "In the Agency's view, since the provision is silent on this point, the provision contains the only plan that the Agency could use to fill positions covered by the provision." Motion at 2, citing the Record of the Post-Petition Conference at 2. The Agency contends that the quoted statement demonstrates that it claimed that the provision would "preclude any other crediting plans from being used to rank candidates." Motion at 2.

      With respect to the second ground for reconsideration, the Agency claims that the Authority "departed from its precedent which provides that a union statement clarifying a matter about which a proposal is silent will be adopted provided the statement comports with the wording of the proposal." Id. at 3. The Agency notes that in Heartland Chapter, the Union withdrew the disputed provision and modified it by developing a proposal that made clear its intent not to preclude the use of other crediting plans. The Agency asserts that the Union could have done, but did not do, the same thing in this case. According to the Agency, the "wording of th[e] provision as it stands . . . would lead a third party to interpret the [provision] as indicating that th[e] crediting plan [set forth therein] is the exclusive means of filling vacancies." Motion at 4. The Agency concludes that "[t]he Authority's decision in this case is inconsistent with the plain and unambiguous meaning of the provision." [n3] Id.

IV.     Analysis and Conclusions

      Under § 2429.17 of the Authority's Regulations, a party seeking reconsideration of a final decision or order of the Authority bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995). The Authority has found that extraordinary circumstances exist, and has granted reconsideration, in a limited number of situations, including where the Authority had erred in its remedial order, process, conclusion of law, or factual finding. A moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. Id. at 85-87.

      The Agency's motion fails to establish extraordinary circumstances warranting reconsideration of Wichita Air Chapter. As to the Authority's alleged mischaracterization of the Agency's position at the Post-Petition Conference in Wichita Air Chapter, we note that the Agency did acknowledge at the conference that the disputed provision was silent on whether it did or did not preclude the use of other crediting plans. Indeed, in our decision in Wichita Air Chapter, we noted that the parties disputed the meaning and effect of the provision. Nevertheless, the issue as to the interpretation of the provision concerns the parties' understanding of that provision when they agreed to it in bargaining, not the Agency's position at the Post-Petition Conference. In this regard, the Agency provided no evidence to contradict the Union's claims as to the meaning of the provision as agreed to by the parties. The Authority's alleged mischaracterization of the Agency's position at the Post-Petition Conference does not affect in any way the validity of the Authority's conclusions about the interpretation of the provision.

      The Agency's second ground for reconsideration is based on a misunderstanding of the Authority's practice. The practice referenced by the Agency concerns the manner in which the Authority has addressed silence as to a particular matter in a bargaining proposal. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association, 51 FLRA 733, 737-38 (1996). On occasion, when confronting questions as to the interpretation of a provision agreed to by the parties and disapproved on agency head review under § 7114(c), the Authority has referred the question of interpretation to an Administrative Law Judge. [n4] See ACT, Heartland Chapter, 56 FLRA 236. Where the Authority can determine the meaning of a provision, however, the Authority proceeds to resolve whether the provision was properly disapproved. See Association of Civilian Technicians, Volunteer Chapter 103, 55 FLRA 562, 565 n.10 (1999) (Chair Segal dissenting).

      Finally, with respect to the Agency's argument concerning third party interpretations of the provision, [ v57 p52 ] as the Union points out, the Authority noted in Wichita Air Chapter that the meaning it adopted for the provision would apply in other disputes, such as arbitration proceedings, where the construction of the provision is at issue. See id. at 1029 n.7. Therefore, the Agency's claim in this respect lacks substance.

      Because the Authority was able to determine the meaning of the provision, based on the record as a whole and including the Union's consistent position as to its intent, the Authority did not depart from its customary practice in resolving whether the provision was properly disapproved by the Agency. The Agency's contention in this regard does not establish extraordinary circumstances warranting reconsideration of the Authority's decision in Wichita Air Chapter.

V.     Order

      The Agency's motion for reconsideration is denied.

   Member Pope did not participate in this decision.

   Although two different units are involved in Wichita Air Chapter and Heartland Chapter, they are both locals of the Association of Civilian Technicians, which advanced the proposal, and had the same representation in the respective negotiability proceedings.

   We note that, in response to the Agency's arguments, the Union asserts that: (1) the Authority's interpretation of the disputed provision reflects its own consistently maintained position as to the meaning of the provision; and (2) "[i]n any third-party proceeding, the [A]gency need only submit the Authority's decision . . . to conclusively show that the provision does not preclude any other crediting plans from being used to rank candidates." Opposition at 2.

   Generally speaking, the Authority uses the term "proposal" to refer to a matter proposed for bargaining and the term "provision" to refer to a matter that has been agreed to in bargaining.