73 FLRA No. 158 Decisions of the Federal Labor Relations Authority 809

73 FLRA No. 158

UNITED STATES 

DEPARTMENT OF THE ARMY

ARIZONA DEPARTMENT OF 

EMERGENCY & MILITARY AFFAIRS

ARIZONA ARMY NATIONAL GUARD

(Agency)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

CHAPTER 61

(Union)

0-AR-5860

(73 FLRA 617 (2023))

_____

ORDER DENYING 

MOTION FOR RECONSIDERATION

February 28, 2024

_____

Before the Authority: Susan Tsui Grundmann, Chairman,

and Colleen Duffy Kiko, Member

I. Statement of the Case

The Union requests reconsideration of the 

Authority’s decision in U.S. Department of the Army, 

Arizona Department of Emergency & Military Affairs, 

Arizona Army National Guard (Arizona Army National 

Guard).1

 The Union’s motion for reconsideration 

(motion) merely attempts to relitigate Arizona Army 

National Guard’s conclusions and raises arguments the 

Union could have made, but did not make, in its underlying 

opposition. Thus, the Union does not establish 

extraordinary circumstances warranting reconsideration, 

and we deny the motion.

1 73 FLRA 617 (2023). 2 Id. at 617. 3 32 U.S.C. § 709(b)(2). 4 Id. § 709(f)(1)(A). 5 73 FLRA at 617 (“The one exception to the requirement 

for prompt termination upon loss of military membership 

is in pending disability[-]retirement claims. Under these 

circumstances, a technician who has lost military 

membership may be retained until the [Office of Personnel 

II. Background and Authority’s Decision in 

Arizona Army National Guard

The facts, summarized here, are set forth in 

greater detail in Arizona Army National Guard.

2

The Agency employs technicians, who are 

required to maintain membership in the Arizona National 

Guard as a condition of employment.3

 Under 32 U.S.C. 

§ 709, technicians who lose military membership “shall be 

promptly separated from . . . technician (dual[-

]status) employment by the adjutant general of the 

jurisdiction concerned.”4

 Prior to the underlying dispute, 

the Agency followed Technician Personnel Regulation 

(TPR) 715,5 a National Guard Bureau (bureau) regulation, 

which permitted the Agency to continue to employ 

technicians who lost military membership, and filed 

disability-retirement claims, until those claims were 

processed.6

 However, the bureau rescinded TPR 715, and 

the parties engaged in impact-and-implementation 

bargaining over the rescission. The parties reached 

agreement on an August 10, 2021 memorandum, which 

contained a provision (the provision) that allowed 

technicians who lose military membership due to medical 

disability to “request a four[-]month extension (renewable, 

if required) to accommodate [the Office of Personnel 

Management (OPM)] disability determination.”7

Subsequently, the Agency notified the Union that 

it was rescinding the provision because it was contrary to 

32 U.S.C. § 709.8

 The Union filed a grievance, alleging 

the Agency violated the parties’ collective-bargaining 

agreement (CBA) and § 7116 of the Federal Service 

Labor-Management Relations Statute (the Statute) by 

rescinding the provision. The grievance went to 

arbitration. The Arbitrator found 32 U.S.C. § 709 does not 

define the term “promptly,” so the parties were free to 

negotiate that term’s meaning.9

 As such, the Arbitrator 

concluded that the rescinded provision – allowing 

technicians to remain employed for four-month, renewable 

periods pending OPM’s disability-retirement 

determinations – was not contrary to 32 U.S.C. § 709’s 

requirement that the Agency “promptly separate[]” 

them.10 The Arbitrator concluded the Agency violated the 

Statute and the CBA by rescinding the provision.

Management] adjudication is received.” (quoting 

TPR 715)). 6 Id.

7 Exceptions, Ex. 2, Memorandum (Memorandum) at 1.

8 Compare Memorandum at 1, with Exceptions, Ex. 3, 

Revised Memorandum at 1.

9 Award at 7-8. 10 Id.
810 Decisions of the Federal Labor Relations Authority 73 FLRA No. 158

The Agency filed exceptions with the Authority, 

arguing the award was contrary to law.11 Specifically, the 

Agency argued it was permitted to rescind the provision 

because the provision was contrary to 32 U.S.C. 

§ 709(f)(1)(A).12 The Union filed an opposition. 

In evaluating the Agency’s exception, the 

Authority stated it will not find unlawful repudiation 

where the repudiated provision is contrary to law.

13 The 

Authority found that 32 U.S.C. § 709 does not define 

“promptly,” and that the Arbitrator and the parties did not 

cite – and the Authority did not find – regulations, case 

precedent, or legislative history defining that term in the 

context of § 709.

14 Thus, the Authority found it 

appropriate to consider dictionary definitions of the term.15 

Because the dictionary defines “promptly” as “without 

delay,”16 the Authority found 32 U.S.C. § 709(f)(1)(A) 

requires technicians who lose military membership to be 

separated without delay.17 As such, the Authority found 

the rescinded provision – which effectively allowed 

indefinite deferral of separation in renewable, four-month 

increments, until OPM made a disability-retirement 

determination – contradicted § 709(f)(1)(A)’s requirement 

that the Agency promptly remove technicians who lose 

military membership.18 The Authority concluded the 

rescinded provision was contrary to 32 U.S.C. 

§ 709(f)(1)(A), so the Agency’s recission of it was not an 

unlawful repudiation.19 Accordingly, the Authority 

granted the Agency’s exception and vacated the 

Arbitrator’s award.20

On July 31, 2023, the Union filed this motion.

III. Analysis and Conclusion: We deny the motion 

for reconsideration.

The Union argues that, in Arizona Army National 

Guard, the Authority erred in its legal conclusions.21 

Section 2429.17 of the Authority’s Regulations permits a 

party to move for reconsideration of an Authority 

11 Ariz. Army Nat’l Guard, 73 FLRA at 618. 12 Id. 13 Id. (citing U.S. Dep’t of the Navy, Supervisor of 

Shipbuilding, Conversion & Repair, Newport News, Va., 

65 FLRA 1052, 1054 (2011)). 14 Id. 15 Id. 16 Id. (citing Promptly, Merriam-Webster.com Dictionary, 

Merriam-Webster, 

https://www.merriam-webster.com/dictionary/promptly

(last visited February 13, 2024)).

17 Id. 18 Id. 19 Id. at 618-19. 20 Id. at 619. 21 Mot. at 1-13.

decision.22 A party seeking reconsideration bears the 

heavy burden of establishing that extraordinary 

circumstances exist to justify this unusual action.23 Errors 

in the Authority’s remedial order, process, conclusions of 

law, or factual findings may justify granting 

reconsideration.24 However, mere disagreement with, or 

attempts to relitigate, the Authority’s conclusions are 

insufficient to establish extraordinary circumstances.25 

Additionally, the Authority has declined to grant 

reconsideration based on arguments that could have been, 

but were not, raised in the original proceedings.26

The Union notes that, in its exceptions, the 

Agency argued it reevaluated its interpretation of 

32 U.S.C. § 709(f)(1)(A) and rescinded the provision after 

the bureau rescinded TPR 715 because, at that point, there 

was no longer “any regulatory basis” for the Agency to 

continue complying with the provision.27 According to the 

Union, the Authority erred in finding the provision 

contrary to law, because the rescission of TPR 715 cannot 

have changed the meaning of § 709(f)(1)(A).28 In this 

regard, the Union contends that, if § 709(f)(1)(A)’s “plain 

meaning” is clear, then the presence or absence of any 

regulation is irrelevant.29 

The Union’s arguments do not demonstrate the 

Authority erred as a matter of law. The Agency – which 

is required to follow bureau regulations – followed 

TPR 715 while it existed. However, after TPR 715 was no 

longer in place, and the parties agreed to the provision, the 

Agency concluded the provision was contrary to 32 U.S.C. 

22 5 C.F.R. § 2429.17. 23 NTEU, Chapter 14, 73 FLRA 718, 719 (2023) 

(Chapter 14). 24 Id. 25 U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., Poplar 

Bluff, Mo., 73 FLRA 628, 629 (2023). 26 Chapter 14, 73 FLRA at 719-720 (declining to consider 

arguments raised for the first time in a motion for 

reconsideration); U.S. Dep’t of Transp., FAA, 58 FLRA 

389, 390 (2003) (declining to consider, in resolving a 

request for reconsideration, issues that were not raised in 

an underlying opposition to exceptions).

27 Mot. at 3. 28 Id. at 2-4. 29 Id. at 2-3.
73 FLRA No. 158 Decisions of the Federal Labor Relations Authority 811

§ 709. The Authority agreed with that conclusion.30 To 

the extent the Union’s argument contends otherwise, we 

reject it as mere disagreement with the Authority’s legal 

conclusion.

The Union also argues the Authority erred 

because TPR 715 defined “promptly,”31 the Agency did 

not dispute the lawfulness of TPR 715,32 and TPR 715 is a 

reasonable interpretation of § 709(f)(1)(A).33 As stated 

above, TPR 715 was rescinded. Therefore, it cannot 

provide a regulatory basis for interpreting § 709(f)(1)(A). 

In Arizona Army National Guard, the Authority relied on 

a dictionary definition of “promptly” because that term is 

undefined in § 709(f)(1)(A) and, among other things, 

regulations.34 The Union’s argument merely attempts to 

relitigate that conclusion and, as such, provides no basis 

for granting reconsideration.

Further, the Union asserts the Authority erred for 

the following reasons: (1) TPR 715 was lawful because it 

is consistent with OPM’s interpretation of 

disability-retirement statutes;35 (2) § 709(f)(1)(A) must be 

harmonized with the disability-retirement statutes if 

possible, and if not possible, the disability-retirement 

statutes prevail because they are more specific than 

§ 709(f)(1)(A);36 (3) TPR 715 and “OPM [r]etention 

[p]olicy” are reasonable because they implement 

“[c]ongressional [p]olicy” against unwarranted gaps in 

income reflected in the Severance Pay Statute;37 (4) the 

30 We note that, in finding the provision inconsistent with 

32 U.S.C. § 709, the Authority did not rely upon 

TPR 715’s rescission, but, rather, the absence of a 

definition of “promptly” in “regulations, case precedent, 

or legislative history” concerning § 709. Ariz. Army Nat’l 

Guard, 73 FLRA at 618. To the extent the Union’s 

arguments challenge the legal reasoning of “[t]he 

Agency’s position,” such arguments do not provide a basis 

for granting reconsideration of the Authority’s decision. 

Mot. at 2-4; see id. passim (alleging errors in “[t]he 

Agency’s position” throughout motion).

31 Mot. at 4-5. 32 Id. at 5. 33 Id. at 9-10. 34 73 FLRA at 618. 35 Mot. at 5-7. 36 Id. at 7-8. 37 Id. at 8-9. 38 Id. at 10. 39 Id. at 10-12. 40 971 F.3d 1377 (Fed. Cir. 2020). 41 Mot. at 12-13. 42 Indep. Union of Pension Emps. For Democracy & Just., 

72 FLRA 571, 572 (2021) (Chairman DuBester 

concurring) (declining to consider argument in motion for 

reconsideration that could have been, but was not, argued 

in the party’s underlying opposition to exceptions); U.S. 

elimination of TPR 715 was arbitrary and capricious;38

(5) 10 U.S.C. § 10216 does not require the repudiation of 

the negotiated provision;39 and (6) Dyer v. Department of 

the Air Force40 does not support the conclusion that the 

provision is contrary to § 709.41 However, the Union did 

not previously raise these arguments in Arizona Army 

National Guard, even though it had the opportunity to do 

so. Consequently, the Union cannot raise them now.42

As such, the Union has not demonstrated 

extraordinary circumstances warranting reconsideration of 

Arizona Army National Guard.

43

IV. Decision

We deny the Union’s motion for reconsideration.

Dep’t of VA, John J. Pershing VA Med. Ctr., Poplar Bluff, 

Mo., 72 FLRA 419, 420 (2021) (same). However, we note 

the Authority’s finding was consistent with its decision in 

Laborers International Union of North America, 

Local 1776, 73 FLRA 215, 217 (2022) (Member Kiko 

dissenting on other grounds), where the Authority found 

an agency did not commit an unlawful repudiation by 

implementing a similar policy in order to comply with 

10 U.S.C. § 10216. 43 Consistent with her concurrence in Laborers Int’l Union 

of N. Am., Loc. 1776, 73 FLRA 591, 595 (2023)

(Concurring Opinion of Member Kiko), Member Kiko 

reiterates that she respects the decision of the United States 

Supreme Court concerning whether Adjutants General are 

“subject to the authority of the [Federal Labor Relations 

Authority] when acting in their capacities as supervisors of 

[national guard] dual-status technicians.” Ohio Adjutant 

Gen.’s Dep’t v. FLRA, 598 U.S. 449, 461 (2023). 

Therefore, despite her previously expressed reservations 

on this issue, see, e.g., U.S. DOD, Ohio Nat’l Guard, 

71 FLRA 829, 833 (2020) (Member Abbott concurring in 

part) (Dissenting Opinion of Chairman Kiko), pet. for 

review denied sub nom. Ohio Adjutant Gen.’s Dep’t v. 

FLRA, 21 F.4th 401, 409 (6th Cir. 2021), aff’d, 598 U.S. 

449, 461 (2023), Member Kiko no longer raises 

jurisdictional objections to the Authority’s resolution of 

cases involving units of the national guard.