American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland (Authority decision, January 12, 1990)

Final FLRA decision. The Authority denies the agency's requests for reconsideration and a stay of an arbitration award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

An arbitrator ordered the Health Care Financing Administration to promote an employee when a suitable vacancy arose after finding that it had failed to give her required priority consideration. The Authority had already denied the agency's exceptions. The agency sought reconsideration, arguing that the Authority overlooked evidence and that a prospective promotion was unlawful. The Authority found that it had considered the evidence and that the agency was trying to relitigate the dispute. It also reaffirmed that a prospective promotion can be ordered when the required findings support it. It denied reconsideration and a stay, leaving the earlier decision and award in place.

Decision snapshot

• Authority: Reconsideration for extraordinary circumstances under 5 C.F.R. § 2429.17.
• Outcome: Reconsideration and stay denied; prospective promotion award remains in place.
• Key point: Repeating arguments about the evidence and remedy did not establish extraordinary circumstances.

Full text (FLRA public release)

[ v34 p301 ]
34:0301(56)AR

The decision of the Authority follows:

34 FLRA No. 56

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1923

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES HEALTH CARE FINANCING ADMINISTRATION BALTIMORE, MARYLAND

0-AR-1530
(33 FLRA 88)

ORDER DENYING REQUESTS FOR RECONSIDERATION OF DECISION AND STAY OF AWARD

January 12, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before us on the request of the Health Care Financing Administration (the Agency) for reconsideration of the Authority's decision in 33 FLRA 88 (1988). The Agency also requests a stay of the Arbitrator's award to which exceptions were filed in 33 FLRA 88. The Union filed an opposition to the request for reconsideration. For the following reasons, we deny the Agency's requests.

II. The Authority's Decision in 33 FLRA 88

In 33 FLRA 88, the Authority denied the Agency's exceptions to the Arbitrator's award. The Arbitrator found that the Agency violated the collective bargaining agreement by failing to notify the grievant of her entitlement to priority consideration for a vacancy for which she was not selected. The Arbitrator ordered that the grievant be promoted to GS-13 as soon as an appropriate vacancy occurs in the Agency. On request of the Union, the Arbitrator clarified the award to restate the findings on which he based the award of a promotion.

The Authority determined that the Agency failed to establish that the central fact underlying the Arbitrator's finding, that the Agency violated the collective bargaining agreement, was erroneous and that but for the erroneous finding, the Arbitrator would have reached a different result. The Authority also determined that the Agency failed to establish that either the award or the award as clarified by the Arbitrator was contrary to law or regulation. The Authority concluded that, in both the original award and the award as clarified, the Arbitrator made the findings necessary to award a prospective promotion consistent with management's right to make selections for appointments under section 7106(a)(2)(C) of the Federal Service Labor - Management Relations Statute and Federal Personnel Manual chapter 335, subchapter 1-4, Requirement 4.

III. The Agency's Request For Reconsideration

A. The Agency's Position

The Agency contends that "the Authority did not previously direct its attention to certain critical portions of the supporting documents provided to it by the Agency with its exceptions, the absence of which consideration allowed for an incomplete assessment" of the matters before the Authority. Motion for Reconsideration at 1. The Agency maintains that the Authority did not consider evidence which refutes the finding that the selecting official would have selected the grievant if the grievant had exercised her right to priority consideration. The Agency also contends that the Authority erroneously denied its exception to the Arbitrator's order of a prospective promotion. The Agency maintains that contrary to the Authority's decision, "(t)here is no statutory or regulatory basis for an award of a prospective promotion(.)" Id. at 9 (emphasis in original).

B. The Union's Position

The Union contends that the Agency has not established that there are extraordinary circumstances which warrant reconsideration.

IV. Discussion

Section 2429.17 of the Authority's Regulations, 5 C.F.R. 2429.17, permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. The Agency fails to establish "extraordinary circumstances" within the meaning of section 2429.17.

In its decision in 33 FLRA 88, the Authority fully considered the Agency's exceptions and supporting documents. The Agency's assertion that the Authority did not "direct its attention to certain critical portions" of documents which supported the Agency's exceptions constitutes nothing more than disagreement with the Authority's decision and an attempt to relitigate the matter. This assertion provides no basis for granting the Agency's request for reconsideration.

Secondly, we reject the Agency's assertion that an arbitrator may not properly order a prospective promotion. In U.S. Department of Commerce, National Bureau of Standards, Washington, D.C. and AFGE Local 2186, Boulder, Colorado, 3 FLRA 615 (1980), the Authority requested an advisory opinion from the Office of Personnel Management (OPM) concerning interpretation of OPM regulations as they applied to an arbitral award of a prospective promotion. OPM advised that "management's right to select or not to select a particular candidate for a position cannot be abridged unless a competent authority determines that there is a direct causal connection between an agency's unwarranted action and the failure to select a specific employee." 3 FLRA at 616. Consistent with the advice received from OPM in National Bureau of Standards, the Authority requires arbitrators to make the same findings to support either a retroactive or a prospective promotion.

In 33 FLRA 88, the Authority concluded that "the Arbitrator made the findings necessary to award a promotion to the grievant." 33 FLRA at 94. The Agency's argument to the contrary also constitutes nothing more than disagreement with the Authority's decision and an attempt to relitigate the merits of this case. Like the Agency's first assertion, this Agency argument again provides no basis for granting the Agency's request for reconsideration.

The Agency has not established extraordinary circumstances to warrant our reconsideration of the Authority's previous decision. Accordingly, we will deny the Agency's request. Similarly, we will deny the request for a stay of the Arbitrator's award.

V. Order

The Agency's requests for reconsideration of the Authority's decision in 33 FLRA 88 and for a stay of the Arbitrator's award are denied.