35:1020(111)AR - - Patent Office Professional Association and Patent and Trademark Office - - 1990 FLRAdec AR - - v35 p1020



[ v35 p1020 ]
35:1020(111)AR
The decision of the Authority follows:


35 FLRA No. 111

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Union)

and

U.S. PATENT AND TRADEMARK OFFICE

(Agency)

0-AR-1556

(34 FLRA 883)

ORDER DENYING REQUEST FOR RECONSIDERATION

May 8, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Union's request for reconsideration of the Authority's decision in 34 FLRA 883. The Agency did not file an opposition to the request. As the Union fails to establish extraordinary circumstances to warrant reconsideration of our decision, we will deny the request.

II. Our Decision in 34 FLRA 883

In 34 FLRA 883, we denied the Union's exceptions to the Arbitrator's award. The Arbitrator had determined that under the statutory and regulatory scheme relating to the denial of a within-grade increase, an employee must request reconsideration by the agency of the determination that the employee is not performing at an acceptable level of competence (the negative determination) before filing a grievance over the denial of the within-grade increase. Because the grievant had not requested reconsideration of the negative determination, the Arbitrator concluded that he was without jurisdiction to decide the merits of the grievance. Accordingly, the Arbitrator dismissed the grievance.

We concluded that the Union's exceptions to the award failed to establish that the award was contrary to law. We found that the Arbitrator properly determined that he was without jurisdiction to decide the merits of the grievance. We held that under the statutory and regulatory scheme of 5 U.S.C. § 5335(c) and 5 C.F.R. § 531.410(d), an employee who has been denied a within-grade increase on the basis that the employee was not performing at an acceptable level of competence must be properly notified of the obligation to request reconsideration of the negative determination and must timely request such reconsideration before filing a grievance challenging the denial of the within-grade increase.

III. The Union's Request For Reconsideration

The Union maintains that the Authority's decision in 34 FLRA 883 essentially holds that a final agency decision is a condition precedent to a grievance. The Union asserts that there are extraordinary circumstances warranting reconsideration because this requirement for a final agency decision is illogical, is contrary to the intent of section 7121 of the Federal Service Labor-Management Relations Statute (the Statute), is destructive of labor relations, and would make nongrievable the majority of matters currently presented to the grievance procedure.

The Union claims that, under the Authority's decision, an employee can lose the right to grieve if an agency refuses to render a reconsideration decision. The Union also claims that the requirement of a final agency decision as a prerequisite to a grievance is illogical and should be repudiated because the grievance procedure is designed to produce a management decision within the agency. The Union further claims that by requiring a reconsideration decision, the possibility of a meaningful grievance is eliminated contrary to the requirement of section 7121(b)(2) of the Statute that grievance procedures provide for expeditious processing. In the Union's view, if a reconsideration decision is truly the final agency decision, logically there can be no further modification of that decision inside the agency.

The Union contends that the "only rational way out of [the] dilemma" presented by the Authority's decision is for the Authority to reconsider its decision and conclude that the reconsideration provisions of 5 U.S.C. § 5335(c) are replaced by, and are not a prerequisite for, the negotiated grievance procedure. Union's Request at 3.

IV. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Union has not established extraordinary circumstances within the meaning of section 2429.17.

In our view, the Union has misconstrued the decision in 34 FLRA 883. We decided only that under the statutory and regulatory scheme of 5 U.S.C. § 5335(c) and 5 C.F.R. § 531.410(d), an employee who has been denied a within-grade increase on the basis that the employee was not performing at an acceptable level of competence must be properly notified of the obligation to request reconsideration of the negative determination and the employee must then timely request reconsideration of the negative determination before filing a grievance challenging the denial of the within-grade increase. We reached our conclusion based on the intent of Congress to achieve uniformity and consistency in this area. Because a reconsideration decision, a final agency action, is required before nonbargaining unit employees can file a grievance, we concluded, as had OPM, that it is required for bargaining unit employees as well. We did not hold, in general, as claimed by the Union, tha