34:0301(56)AR - AFGE, LOCAL 1923 and HHS, HEALTH CARE FINANCING ADMINISTRATION BALTIMORE, MARYLAND -- 1990 FLRAdec AR



[ v34 p301 ]
34:0301(56)AR
The decision of the Authority follows:


34 FLRA No. 56

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                          LOCAL 1923

                             and

         U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
             HEALTH CARE FINANCING ADMINISTRATION
                     BALTIMORE, MARYLAND

                           0-AR-1530
                          (33 FLRA 88)

ORDER DENYING REQUESTS FOR RECONSIDERATION OF DECISION AND STAY
			   OF AWARD

     			January 12, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This case is before us on the request of the Health Care
Financing Administration (the Agency) for reconsideration of the
Authority's decision in 33 FLRA  88 (1988). The Agency also
requests a stay of the Arbitrator's award to which exceptions
were filed in 33 FLRA  88. The Union filed an opposition to the
request for reconsideration. For the following reasons, we deny
the Agency's requests.

II. The Authority's Decision in 33 FLRA  88

     In 33 FLRA  88, the Authority denied the Agency's exceptions
to the Arbitrator's award. The Arbitrator found that the Agency
violated the collective bargaining agreement by failing to notify
the grievant of her entitlement to priority consideration for a
vacancy for which she was not selected. The Arbitrator ordered
that the grievant be promoted to GS-13 as soon as an appropriate
vacancy occurs in the Agency. On request of the Union, the
Arbitrator clarified the award to restate the findings on which
he based the award of a promotion. 

     The Authority determined that the Agency failed to establish
that the central fact underlying the Arbitrator's finding, that
the Agency violated the collective bargaining agreement, was
erroneous and that but for the erroneous finding, the Arbitrator
would have reached a different result. The Authority also
determined that the Agency failed to establish that either the
award or the award as clarified by the Arbitrator was contrary to
law or regulation. The Authority concluded that, in both the
original award and the award as clarified, the Arbitrator made
the findings necessary to award a prospective promotion
consistent with management's right to make selections for
appointments under section 7106(a)(2)(C) of the Federal Service
Labor - Management Relations Statute and Federal Personnel Manual
chapter 335, subchapter 1-4, Requirement 4.

III. The Agency's Request For Reconsideration

     A. The Agency's Position

     The Agency contends that "the Authority did not previously
direct its attention to certain critical portions of the
supporting documents provided to it by the Agency with its
exceptions, the absence of which consideration allowed for an
incomplete assessment" of the matters before the Authority.
Motion for Reconsideration at 1. The Agency maintains that the
Authority did not consider evidence which refutes the finding
that the selecting official would have selected the grievant if
the grievant had exercised her right to priority consideration.
The Agency also contends that the Authority erroneously denied
its exception to the Arbitrator's order of a prospective
promotion. The Agency maintains that contrary to the Authority's
decision, "(t)here is no statutory or regulatory basis for an
award of a prospective promotion(.)" Id. at 9 (emphasis in
original).

     B. The Union's Position

     The Union contends that the Agency has not established that
there are extraordinary circumstances which warrant
reconsideration.

IV. Discussion

     Section 2429.17 of the Authority's Regulations, 5 C.F.R.
2429.17, permits a party that can establish "extraordinary
circumstances" to move for reconsideration of a decision of the
Authority. The Agency fails to establish "extraordinary
circumstances" within the meaning of section 2429.17. 

     In its decision in 33 FLRA  88, the Authority fully
considered the Agency's exceptions and supporting documents. The
Agency's assertion that the Authority did not "direct its
attention to certain critical portions" of documents which
supported the Agency's exceptions constitutes nothing more than
disagreement with the Authority's decision and an attempt to
relitigate the matter. This assertion provides no basis for
granting the Agency's request for reconsideration.

     Secondly, we reject the Agency's assertion that an
arbitrator may not properly order a prospective promotion. In
U.S. Department of Commerce, National Bureau of Standards,
Washington, D.C. and AFGE Local 2186, Boulder, Colorado, 3 FLRA 
615 (1980), the Authority requested an advisory opinion from the
Office of Personnel Management (OPM) concerning interpretation of
OPM regulations as they applied to an arbitral award of a
prospective promotion. OPM advised that "management's right to
select or not to select a particular candidate for a position
cannot be abridged unless a competent authority determines that
there is a direct causal connection between an agency's
unwarranted action and the failure to select a specific
employee." 3 FLRA  at 616. Consistent with the advice received
from OPM in National Bureau of Standards, the Authority requires
arbitrators to make the same findings to support either a
retroactive or a prospective promotion.

     In 33 FLRA  88, the Authority concluded that "the Arbitrator