Pension Benefit Guaranty Corporation (Agency) and National Association of Government Employees, Local R3-77 (Union) (Authority decision, March 17, 2005)

FLRA interlocutory decision. The Authority denies reconsideration of an administrative dismissal of exceptions as interlocutory. The dismissal remains without prejudice. This order does not decide the arbitrator's official time issue or make the underlying arbitration award final, so this banner does not present a judicial-review period or arbitration exclusion under 5 U.S.C. § 7123(a) as finally determined.

Plain-English summary

An arbitrator retained jurisdiction to decide a union official time issue after receiving further submissions. The agency filed exceptions before that final decision, and the Authority's Case Control Office dismissed them without prejudice as interlocutory. The union later said it had withdrawn the official time request and asked the Authority to change the dismissal to one with prejudice as moot. The Authority denied reconsideration because the union had told the agency about the withdrawal but had not informed the Authority while the exceptions were pending. The order leaves the earlier dismissal without prejudice.

Decision snapshot

• Authority: 5 C.F.R. § 2429.17.
• Outcome: Reconsideration denied; interlocutory exceptions remain dismissed without prejudice.
• Key point: The union could not use reconsideration to raise a withdrawal it had not presented to the Authority during the earlier review.

Full text (FLRA public release)

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60 FLRA No. 142

PENSION BENEFIT

GUARANTY CORPORATION

(Agency)

and

NATIONAL ASSOCIATION

OF GOVERNMENT EMPLOYEES

LOCAL R3-77

(Union)

0-AR-3852

_____

ORDER DENYING MOTION

FOR RECONSIDERATION

March 17, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members

I. Statement of the Case

This case is before the Authority on a request for reconsideration filed by the Union under § 2429.17 of the Authority's Regulations and the Federal Service Labor-Management Relations Statute (the Statute). The Agency did not file an opposition. The Authority, through its Case Control Office, dismissed without prejudice the Agency's exceptions to the award of Arbitrator Leon B. Applewhaite as interlocutory.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision or order. The Union seeks reconsideration of the Authority's August 20, 2004 order to dismiss the Agency's exceptions without prejudice and asks the Authority to dismiss the exceptions with prejudice because the issue is moot.

For the reasons that follow, we find that the Union has not established that extraordinary circumstances exist. Accordingly, we deny the Union's request to dismiss the exceptions with prejudice.

II. Background

The Union filed a grievance which was submitted to arbitration. The Arbitrator issued an award directing, among other things, the Union to provide him information on use of official time within 30 days, and the Agency to respond within 30 days after that. The Arbitrator retained jurisdiction to make a final decision on the official time issue. See Award at 35, ¶ 8.

The Union submitted additional information on use of official time to the Arbitrator, following which the Agency filed exceptions to the Arbitrator's award regarding the official time issue. The Union filed an opposition, claiming that the exceptions were interlocutory.

Shortly thereafter, the Union wrote the Arbitrator stating that it was withdrawing and rescinding its submission on use of official time. The Union indicated that it would not seek additional official time above what the Agency actually provided. Subsequently, the Union served a copy of its withdrawal on the Agency.

The Union failed to send a copy of its withdrawal to the Authority and, approximately one week after the date of the withdrawal, the Authority's Case Control Office Director issued an order dismissing without prejudice the exceptions in this case as interlocutory. The Union now seeks to have that determination overturned and have the Authority find that the exceptions should be dismissed with prejudice because the issue is moot.

III. Motion for Reconsideration

The Union argues that when an issue addressed by an arbitrator becomes moot, there is no longer any basis to consider exceptions. The Union contends that it is not seeking additional official time. According to the Union, the Agency only excepted to the Union's claim for additional official time. Consequently, the Union asserts that the issue is moot, the Agency's exceptions are moot, and the Authority no longer has jurisdiction. Therefore, the Union requests that the Agency's exceptions be dismissed with prejudice.

The Agency did not file an opposition.

IV. Analysis and Conclusions

The Union's Motion for Reconsideration fails to establish that extraordinary circumstances exist within the meaning of § 2429.17. Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision or order. The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision or order under § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 56 FLRA 935 (2000) (IRS). [ v60
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The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations: (1) where an intervening court decision or change in the law affected dispositive issues; (2) where evidence, information or issues crucial to the decision had not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995). The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 60 FLRA 88, 89 (2004). In addition, the Authority has refused to grant reconsideration of issues that could have been raised, but were not raised in the Authority's review of an award upon a party's exceptions. See id.; United States Dep't of Health & Human Servs., Office of the Assistant Sec'y for Mgmt. & Budget, Office of Grant & Contract Fin. Mgmt., Div. of Audit Resolution, 51 FLRA 982, 984 (1986).

In this case, the Union submitted its withdrawal of its official time issue to the Agency but failed to send a copy of its withdrawal to the Authority. Accordingly, because the Union could have raised, but did not raise this issue with the Authority while the case was pending before the Authority, we will not consider it now in a motion for reconsideration.

V. Order

The Union's motion for reconsideration is denied.