32:1261(171)AR - - HUD and AFGE Local 476 - - 1988 FLRAdec AR - - v32 p1261
[ v32 p1261 ]
The decision of the Authority follows:
32 FLRA No. 171
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 476, AFL-CIO
Case No. 0-AR-1482
(32 FLRA 196)
ORDER DENYING MOTION FOR RECONSIDERATION
I. Statement of the Case
This matter is before the Authority on a motion filed by the Union seeking reconsideration of our decision of May 31, 1988 in 32 FLRA 196, and an opportunity to file other documents in connection with the reconsideration request. The Union is also requesting a waiver of the expired time limit established by section 2429.17 of our Rules and Regulations for filing a motion for reconsideration.
For the reasons discussed below, we grant the request for a waiver of the expired time limit for filing the motion for reconsideration. However, we find that the Union has failed to establish extraordinary circumstances warranting reconsideration of our decision and, therefore, the motion is denied.
The decision in 32 FLRA 196 involved a grievance which alleged that under established performance standards, the grievant was entitled to an outstanding rating rather than the satisfactory rating he had received. The Arbitrator denied the grievance, finding that the Agency had a reasonable basis for giving the grievant a satisfactory rating. In reaching this result, the Arbitrator noted that the performance standard for job element number one ("[p]repares appropriate written/oral responses to correspondence") had two requirements for an outstanding rating: (1) that an employee meet the satisfactory criteria almost all the time (approximately 92 percent) and (2) that written material rarely be returned for substantive rewrite and that such material reflect a particular style and approach. The Arbitrator found that while the grievant met the satisfactory criteria about 92 percent of the time, the grievant had been put on notice that his work product did not conform to the desired style and approach.
The Union excepted to the award on the basis that it was contrary to section 7106(a)(2)(B) of the Statute. The Union argued that the Arbitrator exceeded his authority by substituting his judgment of the grievant's performance for an objective and quantitative assessment and by failing to apply the elements and standards established by management.
We found that the Arbitrator did not fail to apply the performance standards established by management. Rather, the Arbitrator discussed the established standard and reviewed management's application of that standard to the grievant's performance. Accordingly, we found that the Union failed to demonstrate that the award was contrary to section 7106(a)(2)(B) of the Statute or was otherwise deficient on any of the grounds set forth in section 7122(a) of the Statute.
III. Union's Request for Waiver of Expired Time Limit and Motion for Reconsideration
A. Waiver of Expired Time Limit
The Union acknowledges that the Authority's decision in 32 FLRA 196 was served on it on May 31, 1988. However, the Union indicates that its representative of record was out of town during the period between May 20 and June 16, 1988, attending to a family medical matter, and did not become aware of the Authority's decision until her return to work on June 17. The grievant, who was not served with the Authority's decision, was recovering from surgery which occurred on May 18, 1988 and, likewise, was not aware of the decision until June 17. The Union claims that as a small local, it lacks the organizational resources that the Agency has and that but for the circumstances beyond its control, the filing deadline would have been met. The Union also notes that since it previously had agreed to the Agency's request for an extension of time in which to file its brief with the Arbitrator, fairness and equity support its waiver request.
B. Motion for Reconsideration
The Union claims that extraordinary circumstances exist warranting reconsideration of the Authority's decision. First, the Union argues that the Arbitrator altered the content of the performance standard by considering information that was irrelevant to the standard. More specifically, the Union contests the evaluation of evidence relied on by the Arbitrator and claims that the Arbitrator suppressed certain information by not directly addressing it in his award. Second, the Union argues that the award does not flow from the testimony and facts presented and, again, that the award altered the content of the performance standards.
The Union now requests that the Authority sustain the grievance or, alternatively, retain jurisdiction and remand the case to another arbitrator or the Agency for a determination consistent with the job element, performance standard and facts involved.
IV. Analysis and Conclusions
A. Waiver of Expired Time Limit
The Union admits that the Authority's decision in 32 FLRA 196 was served on the Union on May 31, 1988. In order to be considered timely, a motion for reconsideration would had to have been filed with the Authority by June 15, 1988. The Union's motion was not filed until June 27, 1988. However, we conclude that there are extraordinary circumstances under section 2429.23(b) of our Rules and Regulations to waive the time limit for filing the motion for reconsideration.
The Union has indicated that its representative of record was out of town for an extended period of time. In fact, the representative was away before the Authority's decision was served and did not return to work until after the deadline for filing a motion for reconsideration had already expired. Nothing in the record indicates that the Union's representative was aware of the Authority's decision before the time limit for filing a motion for reconsideration expired. Compare Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA No. 166 (1988) (request for waiver of expired time limit denied where agency counsel was aware of decision prior to expiration of time limit and there was no showing that he was not able to timely file a motion for reconsideration). Due to the nature of the Union representative's absence, a family medical matter, and noting that the motion for reconsideration was filed within a reasonable amount of time after the representative became aware of the Authority's decision, we find that a waiver of the expired time limit is justified.
B. Motion for Reconsideration
Section 2429.17 of our Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsiderat