U.S. Department of the Air Force, Headquarters, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916 (Authority decision, January 10, 1992)

Final FLRA decision. This order denies reconsideration of an Authority decision involving an arbitral award. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

The Authority had previously set aside an arbitration award granting a Tinker Air Force Base employee a promotion and back pay. It found that the employee's earlier formal equal employment opportunity complaint and later grievance concerned the same failure to promote him, so federal law barred the arbitrator from deciding the grievance. The union asked the Authority to reconsider, arguing that the grievance concerned training while the complaint concerned a disability matter. The Authority found that the union was repeating arguments about the merits and had shown no extraordinary circumstances. It denied reconsideration, leaving the earlier decision in place.

Decision snapshot

• Authority: Election of procedure under 5 U.S.C. § 7121(d); reconsideration under 5 C.F.R. § 2429.17.
• Outcome: Reconsideration denied; earlier decision setting aside the promotion award remains.
• Key point: Disagreement with an earlier decision does not establish extraordinary circumstances for reconsideration.

Full text (FLRA public release)

[ v43 p955 ]
43:0955(75)AR

The decision of the Authority follows:

43 FLRA No. 75

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

HEADQUARTERS, OKLAHOMA CITY AIR LOGISTICS
CENTER

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 916

(Union)

0-AR-2175

(43 FLRA 290 (1991))

ORDER DENYING REQUEST FOR
RECONSIDERATION

January 10, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before us on a request for reconsideration of 43 FLRA 290 (1991) filed by the Union under section 2429.17 of our Rules and Regulations. The Agency did not file an opposition to the request. Because the Union fails to establish that extraordinary circumstances exist warranting reconsideration of our decision, we will deny the request.

II. The Decision in 43 FLRA 290

In 43 FLRA 290, we found that a grievance concerning an employee's claim that he was not properly promoted to the WG 10 level was barred under section 7121(d) of the Federal Service Labor-Management Relations Statute (the Statute) by an equal employment opportunity (EEO) complaint that had been filed earlier by the grievant.(*)

We noted there were differences between the grievance and the EEO complaint in that the grievance argued that the grievant's eligibility for promotion stemmed from his completion of certain training which had qualified him to do WG-10 work, while the EEO complaint appeared to focus on a later injury and consequent limited duty restrictions. However, we found that these differences did not obscure the fact that the same matter was involved in both proceedings: the alleged prohibited personnel practice of failing to promote the grievant to the WG-10 level. Accordingly, we concluded that the EEO complaint and the grievance concerned the same matter.

As the formal EEO complaint was filed prior to the grievance, we found that the conditions of section 7121(d) had been met and the Arbitrator was, therefore, precluded under section 7121(d) of the Statute from resolving the grievance submitted to him. Accordingly, we set aside the Arbitrator's award finding that the Agency violated the parties' agreement by failing to promote the grievant and directing the Agency to promote the grievant to WG-10 and to pay him backpay.

III. The Union's Request for Reconsideration

The Union maintains that the Authority's decision is "deficient" because it is "contrary" to section 6.01 of the parties' agreement, which provides that the agreement's grievance procedure is the exclusive procedure for the resolution of matters involving, among other things, working conditions or the interpretation of the agreement itself. Request for Reconsideration at

1. The Union argues that training, promotion and fair treatment are grievable
   matters covered by the parties' agreement. The Union asserts that the grievance before the Arbitrator involved the provisions of the Agency's vocational technical training program for employees, while the grievant's EEO complaint concerned a disability matter. The Union maintains, therefore, that the Authority "ignored" the parties' agreement and that the Authority's decision is therefore "arbitrary and capricious." Id. at 2.

IV. Analysis and Conclusions

Section 2429.17 of our Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Union has not established "extraordinary circumstances" within the meaning of section 2429.17 to warrant reconsideration of our decision of 43 FLRA 290.

The arguments presented by the Union in support of its request for reconsideration constitute nothing more than disagreement with our decision in 43 FLRA 290 and are an attempt to relitigate the merits of the case. As such, these arguments do not constitute extraordinary circumstances warranting reconsideration of our decision, and we will deny the request. See, for example, U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 40 FLRA 1032 (1991).

V. Order

The Union's request for reconsideration is denied.

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

*/ Section 7121(d) of the Statute
provides in pertinent part:

(d) An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first.