26:0084(9)AR - HHS, SSA and AFGE -- 1987 FLRAdec AR



[ v26 p84 ]
26:0084(9)AR
The decision of the Authority follows:


 26 FLRA No. 9
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL SECURITY
 ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-1262 
                                             (24 FLRA No. 11)
 
                 ORDER DENYING MOTION FOR RECONSIDERATION
 
                         I.  STATEMENT OF THE CASE
 
    The case is before the Authority on a motion filed by the Agency
 seeking reconsideration of the Authority's decision of November 19,
 1986, dismissing the Agency's exceptions to the Arbitrator's awards of
 September 11 and 12, 1986, as untimely filed.
 
                              II.  BACKGROUND
 
    In its decision, the Authority determined that under section 7122(b)
 of the Federal Service Labor-Management Relations Statute and sections
 2425.1, 2429.21 and 2429.22 of the Authority's Rules and Regulations,
 any exceptions to the Arbitrator's bench awards of September 11 and 12,
 1986 had to be filed with the Authority within 30 days of the dates
 those awards were rendered, that is, no later than the close of business
 on October 10 and 14, 1986, respectively.  In reaching that
 determination, the Authority rejected the Agency's assertion that
 because no representative of the Agency was present at the hearing, the
 time limit for filing exceptions should begin to run from the date the
 transcript of the proceeding was mailed to the Agency.  The Authority
 found that it was well settled based upon precedent, particularly in
 cases involving other related bench rulings between these same parties,
 that bench awards are final when rendered and ripe for filing exceptions
 with the Authority at that time.  The Authority also found that the
 record clearly indicated that while the Agency did not participate in
 the September 11 and 12 hearings, it voluntarily chose not to do so and,
 thus, acted at its own peril.  The Authority therefore concluded that
 the time limit for filing exceptions expired on October 10 and 14 and
 that the Agency's exceptions filed on October 30, 1986, were untimely.
 Accordingly, the Authority dismissed the exceptions.
 
                           III.  AGENCY'S MOTION
 
    In its motion for reconsideration, the Agency alleges that the
 Authority's decision is based on erroneous findings and interpretations
 of the facts in the case.  In support of this allegation, the Agency
 argues that the Authority erred in concluding that the Agency
 voluntarily chose not to participate in the arbitration proceeding on
 September 11 and 12, 1986, asserting that the Arbitrator denied the
 Agency its right to be represented.  The Agency further alleges that the
 Authority erred in its interpretation of its rules in finding that the
 Agency's exceptions were untimely filed.  In support of this allegation,
 the Agency asserts that the time for filing the exceptions began to run
 from the date the transcript of the proceeding was mailed to the Agency
 and not from the date of the awards.  Additionally, the Agency asserts
 that the Authority should not have dismissed its exceptions because the
 bench awards in dispute in this case were not final when rendered.  The
 Agency claims that "newly discovered material evidence" establishes that
 the bench decisions were interlocutory and, therefore, that the time
 limits for filing exceptions under section 7122(a) of the Statute had
 not yet begun to run.  In support of this allegation, the Agency argues
 that a statement in a letter from the Arbitrator to the Federal
 Mediation and Conciliation Service, dated November 13, 1986, establishes
 that the disputed bench decisions were not final.  The Agency further
 asserts that it could not have filed complete exceptions until it
 received the transcript.
 
                       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 a decision of the Authority.  However, in this case,
 we conclude that the Agency has not established "extraordinary
 circumstances" within the meaning of section 2429.17.  Rather, the
 arguments presented by the Agency constitute nothing more than
 disagreement with the merits of the Authority's decision and an attempt
 to relitigate the matter.
 
    With respect to the Agency's assertion that the Authority erred in
 finding that the Agency voluntarily chose not to participate in the
 hearing, portions of the transcript of the hearing quoted by the Agency
 in its motion for reconsideration support the Authority's finding. The
 Agency official who sought to attend the hearing expressly withdrew from
 the hearings as a representative of the Agency in the proceeding.  The
 Arbitrator denied the official's request to attend as an observer, based
 on the ground rules established by the parties and practice followed in
 earlier proceedings in this dispute which required the exclusion of all
 individuals except a lead representative and technical advisor for each
 party.  Thus, contrary to the Agency's assertion, it was afforded an
 opportunity to be represented in the proceeding but it refused to
 participate.  The Agency can not now complain that it was not
 represented in the hearing.  American Federation of Government Employees
 and Social Security Administration, 25 FLRA No. 12 (1987), slip op. at
 3.  The Agency's disagreement with the Authority provides no basis for
 reconsidering the decision in this case.
 
    As to the Agency's assertion that the Authority erred in finding that
 the Agency's exceptions were untimely under the Authority's Rules and
 Regulations, such assertion can not be sustained.  It is readily
 apparent from the cases cited in the order dismissing the Agency's
 exceptions that the Agency knew or should have known at the time of the
 proceeding before the Arbitrator on September 11 and 12, 1986, that the
 time limits for filing exceptions to a bench award begins to run from
 the date the award is rendered and not from the date the transcript of
 the hearing is mailed to the parties.  U.S. Department of Health and
 Human Services, Social Security Administration and American Federation
 of Government Employees, AFL-CIO, 22 FLRA No. 16 (June 13, 1986);  U.S.
 Department of Health and Human Services, Social Security Administration
 and American Federation of Government Employees, AFL-CIO, 23 FLRA No. 19
 (August 15, 1986).  The Agency's disagreement with the Authority's
 interpretation and application of its Rules and Regulations provides no
 basis for reconsidering the decision.
 
    With respect to the Agency's assertion that the Arbitrator's bench
 decisions were interlocutory, such assertion must be rejected for two
 reasons.  First, it is clear that the Arbitrator's statement relied upon
 by the Gency is not "newly discovered material evidence." The Arbitrator
 stated that he intends to incorporate his initial awards in the matter
 together with all his final bench decisions and written rulings into one
 omnibus award as soon as the regional hearings on the individual claims
 and grievances are completed.  As the Arbitrator expressly states in
 that declaration and as the Union establishes in its opposition to the
 Agency's motion, the Arbitrator previously announced that same intention
 to the parties.  Second, the Arbitrator's statement does not establish
 that the bench decisions are interlocutory.  On the contrary, the
 Arbitrator expressly describes the bench awards in his statement as
 final.  Moreover, as indicated above, it has been well established since
 the early stages of this protracted dispute between the parties that the
 Arbitrator's bench decisions are final when rendered for purposes of
 filing exceptions with the Authority.  The Agency's assertion regarding
 the Arbitrator's November 13, 1986, letter does not afford any basis for
 reconsidering the Authority's decision.
 
    Finally, we note that even having elected not to participate in the
 September 11 and 12 proceedings, the Agency was not prevented from
 filing timely, legally sufficient exceptions.  The Agenc