36:0155(18)CU/AR - - SBA and AFGE Local 2532 and Council 228 - - 1990 FLRAdec RP/AR - - v36 p155



[ v36 p155 ]
36:0155(18)AR
The decision of the Authority follows:


36 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. SMALL BUSINESS ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2532 AND COUNCIL 228

(Labor Organization/Petitioner)

3-CU-80025

34 FLRA 392

and

0-AR-1489

32 FLRA 847

ORDER GRANTING MOTION FOR RECONSIDERATION

June 25, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion filed by the Petitioner under section 2429.17 of the Authority's Rules and Regulations. The motion seeks "reconsideration of the impact" of our decision in 34 FLRA 392 (1990) on the Authority's prior decision in U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988). Our decision in 34 FLRA 392 denied an application for review of the Regional Director's Decision and Order on Petition for Clarification of Unit (CU). The decision in 32 FLRA 847 set aside an arbitration award involving the same parties. In essence, the motion, which requests reconsideration of the two decisions, seeks to reinstate that arbitration award.

For the reasons that follow, we will order that the original grievance that was the subject of the decision in 32 FLRA 847 be reinstated and, if not satisfactorily settled, be subject to arbitration.

II. Background

On December 17, 1987, Arbitrator Jerome H. Ross issued his opinion and findings in a grievance submitted on behalf of an employee of the Agency's Office of Civil Rights Compliance (OCRC). The Arbitrator determined that the grievant was included in the unit, and sustained the grievance to the following extent:

(1) The letter of reprimand and the counseling referral letter shall be immediately removed from the grievant's official personnel file and other Agency records.

(2) The grievant's . . . [annual performance] rating for FY 1986 shall be changed to Fully Satisfactory;

(3) The grievant shall be immediately returned to check-off status.

(4) The Agency shall reimburse the Union for the lost dues of the grievant from November 1986 to November 1987.

In its decision in 32 FLRA 847, which issued on August 17, 1988, the Authority set aside the award and, announcing a new rule of law, concluded that an arbitrator is not empowered to decide a question of a grievant's bargaining unit status. Id. The Authority noted, however, that when parties to a grievance are faced with a grievability question regarding the unit status of the grievant and an arbitrator, therefore, is precluded from addressing the merits of a grievance, the parties "can place the grievance in abeyance pending the filing of a clarification of unit petition." Id. at 854.

In May 1988, prior to the Authority's decision setting aside the Arbitrator's award in 32 FLRA 847, the Union filed a CU petition, asserting, among other things, that the OCRC is included in its nationwide consolidated unit. The Union did not raise the existence of the CU petition in the arbitration case, consistent with the then-existing state of the law. On March 31, 1989, the Regional Director issued his Decision and Order on Petition for Clarification of Unit, finding, among other things, that the OCRC employees are in the existing unit.

The Union filed an application for review of the Regional Director's decision with the Authority. The application for review did not raise the unit placement determination regarding OCRC employees. On January 19, 1990, the Authority denied the application for review in 34 FLRA 392.

III. Motion Now Before the Authority

Now before the Authority is the Union's "Motion for Reconsideration of the Authority's decision in Case No. O-AR-1489 (32 FLRA No. 125), and 3-CU-80025 (34 FLRA No. 73)." The Union seeks to have the Authority modify its decision in the arbitration case to "conform" it with the order in the CU decision, so that the Arbitrator's award can be "reinstated."

A. Union's Position

The Union seeks reconsideration of the Authority's reversal of the Arbitrator's award. The Union notes that its motion for reconsideration of the Authority's decision in the CU case was timely filed and that the CU decision was "a final decision . . . that essentially implemented the Regional Director's determination that [the grievant] and other OCRC employees are in the unit of recognition." Motion for Reconsideration at 3.

In support of its motion for reconsideration of the arbitration decision under section 2429.17 of the Rules and Regulations, the Union asserts that extraordinary circumstances exist. It makes several arguments.

First, the Union notes that in the arbitration case, the Authority set aside the Arbitrator's award on the basis of what the Union characterizes as a new rule, reversing previous cases. A CU petition was then pending before the Authority, "a petition that ultimately lead [sic] to the Authority's conclusion that OCRC employees (including the grievant) were in the unit of recognition [emphasis in original]." Motion for Reconsideration at 3.

The Union also asserts that the Authority's delay in issuing its denial of the Union's application for review of the Regional Director's decision, due to the two vacancies that existed in the Authority's membership, is an extraordinary circumstance sufficient to support the requested reconsideration.

B. Agency's Position

The Agency argues that the motion should be denied for several reasons. First, it argues that the motion is untimely. The Agency argues that although the motion would be timely if it were designed to reconsider the Authority's denial of the application for review of the CU decision, in fact the motion is "solely concerned with the Authority's 1988 decision," which set aside the arbitrator's award in the original grievance arbitration. Agency Opposition to Motion for Reconsideration at 6. According to the Agency, the Union could have filed a motion requesting a delay in final action on the grievance arbitration until issuance of the final decision on the CU petition.

The Agency also argues that extraordinary circumstances are not shown. The Agency contends that resolution of the grievance during the pendency of the CU petition is not a denial of due process; the Union could have gained a postponement, as noted above. Further, the Agency asserts that neither reversal of precedent nor the absence of a quorum in the membership of the Authority is an extraordinary circumstance.

The Agency argues, in addition, that "retrospective" application is not warranted by the facts, that it would "result in administrative chaos if widely applied," and that the Arbitrator's decision was based on an error of law. Id. at 10.

Finally, the Agency states that the case is "largely moot," because, it asserts, the only issue of relief remaining is reimbursement to the Union of the grievant's unpaid dues, a sum of $230, which it asserts is de minimis. Id. at 12. In this regard, the Agency observes that as a result of the decision in the CU case, the grievant is now on check-off status; the 1986 performance evaluation was retained by the Agency for 3 years and is no longer part of the grievant's file; and the letter of reprimand and counseling referral letter as a matter of course are no longer in the grievant's file.

IV. Analysis and Conclusions

The Union has requested reconsideration of the Authority's decision setting aside the Arbitrator's award in 32 FLRA 847. For the following reasons we will grant the motion.

A. We Will Waive the Time Limit for Reconsideration

Section 2429.17 of the Rules and Regulations provides that after a final decision or order of the Authority has been issued, a party who can establish extraordinary circumstances may file a motion for reconsideration within 10 days. Section 2429.23(a) provides that the Authority may extend the time limit for good cause shown, and section 2429.23(b) provides that the Authority may waive an expired time limit in extraordinary circumstances. We find such extraordinary circumstances in this case.

In 32 FLRA 847, the arbitration case, the Authority overruled earlier case law, and held that an arbitrator is not empowered to decide a grievant's unit status. In that decision, the Authority suggested that, when the parties to a grievance are faced with a grievability question regarding the unit status of the grievant, the parties "can place the grievance in abeyance pending the filing of a clarification of unit petition." Id. at 854. We recognize that the Union failed to file a motion for reconsideration of the Authority's dismissal of the arbitration award at earlier possible times, such as upon the issuance of the decision in that case, and later, after the Regional Director's decision on the CU petition. However, at the time of the Authority's decision in the arbitration case, the CU petition had already been filed and was pending. Although it would have been more prudent to act promptly to move for reconsideration of the Authority's arbitration decision, the Union's decision to await the outcome of the pending CU proceeding to settle the unit status question of the grievant is understandable. At that point, the Union's interest apparently was not in questioning the Authority's new rule that an arbitrator could not make a unit status determination, but rather in the success of its CU petition. It was only after the Authority affirmed the Regional Director's decision in January 1990 that the full effect of the earlier arbitration decision was apparent to the Union.

In subsequent decisions where we have set aside an arbitrator's award because it resolved a unit status question, we have mitigated the effect of the new rule of law announced in 32 FLRA 847 on cases that arose before the Authority's decision by directing the parties to place the grievance in abeyance pending the outcome of a CU petition if one is subsequently filed. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Los Angeles District and National Treasury Employees Union, Los Angeles Joint Council, 34 FLRA 1161 (1990). In view of this policy and all the circumstances, we deem it appropriate to waive the time limit and to reconsider the Authority's decision in 32 FLRA 847.

We reject as inapposite, in this connection, the Agency's argument against "retrospective" application of our decision in the CU case. The Agency is concerned about the possible widespread retroactive application of a rule of law. In contrast, the aspect of our decision in the CU case that is being applied to the prior decision is a finding of fact--the unit status of the employee who was the grievant in the prior case--that has relevance only to the determination in that case. The new rule of law announced in the Authority's decision setting aside the arbitration award is only to be applied prospectively. As noted above, in all subsequent decisions in cases that arose before the Authority's decision in 32 FLRA 847, where we have set aside an arbitrator's award because it resolved a unit status question, we have required that grievances be held in abeyance pending the outcome of pending CU petitions. We thereby assured that the situation that has prompted this motion for reconsideration will not recur. Therefore, granting the motion for reconsideration would not "result in administrative chaos if widely applied," as asserted by the Agency, because it neither applies a new rule of law to prior decisions, nor will it be "widely applied." Agency Opposition at 10.

B. The Arbitrator's Award Cannot be Revived

The Arbitrator's award was based on a threshold finding that the grievant was included in the certified unit. As noted above, the Authority reversed earlier case law and held, for reasons discussed in its decision, 32 FLRA at 852-54, that an arbitrator is not empowered to decide a grievant's unit status. There is nothing in the Union's arguments in support of its motion for reconsideration to cause us to reconsider that approach. As the Arbitrator was not empowered to resolve the conflicting assertions as to the grievant's unit status, neither the grievant's unit status nor the merits of the grievance before him were grievable. Therefore, his award was issued without jurisdiction and cannot be revived.

C. We Will Order the Grievance Reinstated

However, in all the circumstances, including the current Authority policy and practice of directing the parties to put the grievance in abeyance if a CU petition is filed, we will order that the grievance be reinstated. If the grievance is not satisfactorily settled by the parties, it shall be subject to binding arbitration which may be invoked by the Union in accordance with section 7121 of the Statute and the parties' collective bargaining agreement. Whether the case is "largely" moot with only a de minimis issue remaining, as claimed by the Agency, is an issue for resolution through the grievance and arbitration process.

VI. Order

Having granted the motion for reconsideration, we conclude that the Arbitrator's award in 32 FLRA 847 was properly set aside. However, because of the extraordinary circumstances described, the grievance will be reinstated and, if not satisfactorily settled, may be subject to arbitration.




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