National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia (Authority decision, June 28, 1999)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

The union sought reconsideration of an Authority decision upholding an arbitrator’s dismissal of a grievance and arbitration request as untimely. It argued that the agency had raised arbitrability too late and that the result created an improper rule about issuing grievance decisions. The Authority held that the union repeated arguments already considered or failed to explain an error in the earlier decision. The arbitrator had resolved only arbitrability, so that was the proper scope of the Authority’s review. The union established no extraordinary circumstances, and reconsideration was denied.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a); 5 C.F.R. § 2429.17.
• Outcome: Reconsideration denied; prior denial of arbitration exceptions remains in effect.
• Key point: Reargument and disagreement with the earlier result did not establish extraordinary circumstances.

Full text (FLRA public release)

[ v55 p521 ]

55 FLRA No. 90

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R4-45

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

FORT LEE, VIRGINIA

(Agency)

0-AR-3101

(54 FLRA 1376 (1998))

_____

ORDER DENYING MOTION FOR

RECONSIDERATION

June 28, 1999

Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This case is before the Authority on the Union's motion for reconsideration of the Authority's Decision in National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 54 FLRA 1376 (1998). The Agency filed an opposition to the motion.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that the Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.

II. Decision in 54 FLRA 1376

In 54 FLRA 1376, the Authority concluded that the Union failed to establish that the Arbitrator's award was deficient under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute). The award denied a grievance as not arbitrable based on the Arbitrator's findings that the grievance and the Union's request for arbitration were not timely filed. In particular, the Arbitrator found that the grievance was "clearly untimely," and that the Union's request for arbitration was untimely because the parties' collective bargaining agreement "explicit[ly]" states that the time for invoking arbitration tolls the "issuance" date of an Agency's final grievance decision letter, not the date the letter is received. Award at 4-5, 10.

The Union excepted to both findings on the grounds that the award was "clearly erroneous," did "not draw its essence from the contract," and "erroneously interpret[ed] laws, rules and regulations[.]" Exceptions at 7-8. The claim that the award failed to draw its essence from the parties' agreement was the only ground for which the Union provided arguments. In this regard, the Union claimed that the grievance was timely filed because the Union filed the grievance when the Agency actually violated the parties' agreement, rather than in anticipation of that violation. The Union also claimed that arbitration was timely invoked and that the Agency's claim to the contrary should have been barred because it was not timely raised by the Agency under the parties' agreement.

On review, the Authority considered the Union's exceptions, and concluded that the award was not deficient. Accordingly, the Authority denied the Union's exceptions.

III. Motion for Reconsideration

In its motion for reconsideration, the Union contends that the Authority should reconsider 54 FLRA 1376 based on the following three "extraordinary circumstances":

(1) The case was decided solely on the issue of
. . . the timeliness of the grievance.

(2) The contract explicitly requires the [A]gency
raise the issue of non-arbitrability "no later than
the final decision being issued." . . . The [A]gency
did not raise arbitrability prior to the final decision
being issued and therefore the Arbitrator's Award
is absolutely contrary to the parties' negotiated
agreement.

(3) The Arbitrator's Award, if allowed to stand,
would create a bizarre rule regarding the "issuing"
of a [final Agency] decision.

Motion to Reconsider at 1.

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy bur- [ v55 p522 ] den of establishing that extraordinary circumstances exist to justify this unusual action. See U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 85 (1995) (Scott Air Force Base). In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that the Authority erred in its remedial order, process, conclusion of law, or factual finding. Attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. Id. at 86-87. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees, Local 1857, 48 FLRA 543, 545 (1993) (Defense Logistics Agency).

The Union's first claim -- that the "case" was decided solely on the issue of arbitrability -- does not provide a basis for the Authority to grant the Union's motion for reconsideration. Motion to Reconsider at 1. The only issue before the Authority in 54 FLRA 1376 was the Arbitrator's arbitrability determination because that was the only issue resolved by the Arbitrator in his award and the only ground on which the Union challenged the award. Thus, it was appropriate for the Authority to resolve the exceptions solely on that ground.

The Union's second claim -- that the Agency's assertion regarding the arbitrability of the grievance was not timely raised under the parties' agreement -- is a reiteration of the Union's exception to the award in 54 FLRA 1376. As such, it does not establish extraordinary circumstances warranting reconsideration of 54 FLRA 1376. See Defense Logistics Agency, 48 FLRA at 545.

The Union's final claim -- that allowing the Arbitrator's award to stand would create a "bizarre rule regarding the `issuing' of a decision" -- also does not provide a basis for the Authority to grant the Union's motion for reconsideration. Motion to Reconsider at 1. The Union has not offered any explanation as to how the Authority erred in its decision denying the exceptions, its process, or its conclusions of law in 54 FLRA 1376. In addition, as arbitration awards are not precedential, the Union has not established that the award would create a "rule." As such, the Union has not demonstrated extraordinary circumstances warranting review of the Authority's decision. See U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office and National Federation of Federal Employees, BIA Council, 54 FLRA 9, 12-13 (1998).

Based on the foregoing, the Union has failed to establish the extraordinary circumstances necessary to warrant reconsideration of the decision published at 54 FLRA 1376. Accordingly, we deny the Union's motion for reconsideration. See id.; U.S. Department of Health and Human Services, Social Security Administration, New York Region and American Federation of Government Employees, Local 3369, 52 FLRA 989, 991 (1997).

V. Order

The Union's motion for reconsideration is denied. [n1]

Footnote # 1 for 55 FLRA No. 90

In light of our decision, we do not address the Agency's
request to file an opposition to the Union's motion.