Air Force Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916 (Authority decision, June 11, 1993)

Final FLRA decision. The Authority denies the union's request for reconsideration and leaves its earlier arbitration decision in place. 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 resolve an unfair labor practice.

Plain-English summary

An arbitrator had ordered Tinker Air Force Base to change an employee's tenure group and rerun a reduction in force, with possible reinstatement and backpay. The Authority set aside that part of the award in an earlier decision because it conflicted with the Federal Personnel Manual, while leaving a separate finding about the agency's failure to negotiate intact. AFGE Local 916 sought reconsideration, arguing that the agency's regulation might have affected the employee's retention rights. The Authority found that the union could have raised those arguments earlier and had shown only disagreement with the previous ruling, not extraordinary circumstances. It denied reconsideration and clarified that the agency was not now obliged to reinstate the employee.

Decision snapshot

• Authority: Reconsideration under 5 C.F.R. § 2429.17.
• Outcome: Reconsideration denied; the earlier ruling setting aside the tenure group and rerun remedy stands.
• Key point: Arguments available during the original exceptions proceeding did not justify reconsideration.

Full text (FLRA public release)

[ v47 p861 ]
47:0861(81)AR

The decision of the Authority follows:

47 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

0-AR-2359

(47 FLRA 488 (1993))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

June 11, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on the Union's request for reconsideration of the Authority's decision in 47 FLRA 488 (1993). The Agency did not file an opposition to the request. We conclude that the Union has failed to establish that extraordinary circumstances exist which warrant reconsideration of our decision. Accordingly, we will deny the Union's request.

II. Arbitrator's Award and the Decision in 47 FLRA 488

As set forth in more detail in 47 FLRA 488, the Arbitrator sustained a grievance alleging that the Agency improperly terminated the grievant's employment as the result of a reduction-in-force (RIF). The Arbitrator concluded that the Agency incorrectly determined the grievant's tenure group status (1) and that the Agency violated section 7114 of the Federal Service Labor-Management Relations Statute (the Statute) when it failed to negotiate with the Union over the issuance of an Air Force regulation which supplemented Federal Personnel Manual (FPM) Supplement 351-1. As his award, the Arbitrator, as relevant here, directed the Agency to place the grievant in a different tenure group and, on that basis, rerun the RIF.(2) The Arbitrator further directed that, if the rerun of the RIF resulted in retention of the grievant, the Agency was to provide the grievant backpay.

In 47 FLRA 488, we sustained, in part, the Agency's exceptions to the Arbitrator's award. In particular, we set aside the portion of the award directing the Agency to place the grievant in a different tenure group and rerun the RIF, as contrary to FPM Supplement 351-1. We denied the Agency's exceptions to the portion of the award finding that the Agency improperly failed to negotiate over the Agency regulation. We noted, in this connection, that neither party argued that the disputed regulation affected the outcome of the case.

III. Request for Reconsideration

Although the Union's arguments are not clear, it appears that the Union is arguing that the Agency failed to conduct the RIF in accordance with law. In this regard, the Union contends that, although the Agency admitted its violation of section 7114 of the Statute, the Agency argued to the Arbitrator that it conducted the RIF "in compliance with all laws, rules, and regulations." Request at 2 (emphasis omitted). The Union also argues that the disputed Agency regulation is contrary to FPM Supplement 351-1. The Union contends that, although the disputed regulation was not specifically applied to the grievant, its application to other employees may have affected the grievant's retention rights. Finally, the Union claims that the Authority's decision has resulted in confusion as to whether the Agency must reinstate the grievant.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision.

We conclude that the Union has not established extraordinary circumstances, within the meaning of section 2429.17. In this regard, the Union had ample time to raise its arguments in response to the Agency's exceptions to the award. We conclude that the Union's arguments constitute mere disagreement with our findings and conclusions in 47 FLRA 488, and are an attempt to relitigate the merits of the case. As such, these arguments do not demonstrate extraordinary circumstances warranting reconsideration of our decision. Accordingly, we will deny the request for reconsideration. See, for example, U.S. Department of the Army, Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 45 FLRA 883, 885 (1992).(3)

V. Order

The Union's request for reconsideration is denied.

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

1. The definition of "tenure group" and
   related terms used in this decision are found in 47 FLRA at 489 n.1.

2. As his award regarding the violation
   of section 7114 of the Statute, the Arbitrator declared the disputed regulation "non-valid for the purpose of this case." Award at 9.

3. We note that the Authority clearly
   set aside "[t]he portion of the award directing the Agency to place the grievant in tenure group I and to rerun the RIF . . . ." 47 FLRA at 497. As the Arbitrator expressly conditioned any reinstatement of the grievant on the results of the repeated RIF, it is clear that the Agency is not now obligated to reinstate the grievant.