38:0541(49)AR - - Justice, Bureau of Prisons, Federal Correctional Institution, El Reno, OK and AFGE Local 171 - - 1990 FLRAdec AR - - v38 p541



[ v38 p541 ]
38:0541(49)AR
The decision of the Authority follows:


38 FLRA No. 49

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

EL RENO, OKLAHOMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 171

(Union)

0-AR-1826

37 FLRA 559 (1990)

ORDER DENYING REQUEST FOR RECONSIDERATION

November 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before us on the Agency's request for reconsideration of the Authority's decision in 37 FLRA 559 (1990). The Union did not file an opposition to the Agency's request.

For the following reasons, we will deny the Agency's request.

II. The Authority's Decision in 37 FLRA 559

In 37 FLRA 559, we addressed the Agency's exceptions to the award of Arbitrator Charles J. Morris resolving a grievance over the payment of Environmental Differential Pay (EDP) for exposure to asbestos. We concluded that the award was ambiguous with respect to whether the requirements applicable to the payment of EDP under Federal Personnel Manual (FPM) Supplement 532-1, Subchapter S8-7, Appendix J had been satisfied. Accordingly, we decided as follows:

[T]he award is remanded to the parties for the purpose of requesting that the Arbitrator clarify his award to address fully, and in accordance with this decision, whether the grievants were working in areas where airborne concentrations of asbestos fibers may have exposed them to potential illness or injury, whether protective devices and safety measures practically eliminated that potential, and, if the grievants are entitled to EDP, the period of time of that entitlement.

37 FLRA at 565.

III. The Agency's Request for Reconsideration

The Agency asserts that reconsideration or clarification of the Authority's decision in 37 FLRA 559 is warranted because the Authority "appears to be advising the [A]rbitrator that, regardless of whether or not he finds that [the] parties had negotiated an exposure standard pursuant to OPM's regulations, he may, himself, decide what the appropriate exposure level should be . . . ." Request at 4. The Agency states that it "will concede, for the purposes of [its] request, that the parties could have directly negotiated and agreed to identify or set the level of exposure at which . . . employees will be entitled to EDP . . . ." Id. at 11 (emphasis in original). The Agency asserts, however, that the parties did not so agree and, as such, EDP properly may be awarded only on the basis of "management's unilaterally established 0.2 f/cc standard . . . ." Id. at 20.

According to the Agency, "remanding the award to the parties with instructions to seek a clarification of the award will be unlikely to lead to [a] valid ruling by the [A]rbitrator . . . ." Id. (emphasis in original). Therefore, the Agency argues that "the only appropriate ruling here is to set aside the award." Id.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations 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.

The arguments presented by the Agency in support of its request for reconsideration constitute nothing more than disagreement with the Authority's decision in 37 FLRA 559 and an attempt to relitigate the merits of the case. As such, these arguments do not constitute extraordinary circumstances. See, for example, Michigan Air National Guard, Selfridge ANG Base Michigan and The Association of Civilian Technicians, Michigan State Council, 34 FLRA 890, 892 (1990). Moreover, we note that the Agency may present any of its arguments to the Arbitrator and also is free to file exceptions to any clarified award under section 7122 of the Federal Service Labor-Management Relations Statute.

V. Order

As the Agency has not established extraordinary circumstances, within the meaning of section 2429.17 of the Authority's Rules and Regulations, the Agency's request for recon