38:1480(118)AR - - HHS, SSA, Kansas City, MO and AFGE Local 1336 - - 1991 FLRAdec AR - - v38 p1480
[ v38 p1480 ]
The decision of the Authority follows:
38 FLRA No. 118
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
KANSAS CITY, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(37 FLRA 816)
ORDER DENYING MOTION FOR RECONSIDERATION
January 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on a motion for reconsideration of our decision in 37 FLRA 816 (1990) filed by the Agency. The Agency also requested that the decision be stayed pending disposition of its motion.(*) The Union filed an opposition to the Agency's motion. Because the Agency fails to establish that extraordinary circumstances exist that would warrant reconsideration of our decision, we will deny the motion.
II. The Decision in 37 FLRA 816
As set forth more fully in our decision in 37 FLRA 816, the Arbitrator had found that the Agency violated the parties' collective bargaining agreement by not properly giving the grievant priority consideration for a promotion. The Arbitrator concluded that the grievant would have been promoted but for the failure of management to give him bona fide consideration for noncompetitive selection under his priority consideration. The Arbitrator ordered that, within 90 days of the date of his award, the grievant be promoted and receive the higher rate of pay appropriate for the position. The Arbitrator did not order backpay.
Based on our decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we denied the Agency's exception contending that the award was contrary to management's right to select under section 7106(a)(2)(C) of the Federal Service Labor-Management Relations Statute (the Statute). In U.S. Customs Service, we reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a) of the Statute. We held that in such circumstances we will examine the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Accordingly, we held that we will not find that such an award is contrary to law and we will deny the exception.
In 37 FLRA 816 we concluded that the Agency had failed to establish that the award was contrary to section 7106(a)(2)(C) of the Statute. We determined that the provision of the collective bargaining agreement enforced by the Arbitrator clearly constituted an arrangement for employees adversely affected by management's right to select. We further determined that the provision as interpreted and applied by the Arbitrator clearly did not abrogate the exercise by management of its right to select. In this respect, we noted that the provision as interpreted and applied by the Arbitrator only requires management to select an employee exercising a right to priority consideration when management determines that the application meets the minimum standards that management has set for adequate performance of the job. We found that although this interpretation limits management from selecting from any appropriate source in those instances where a qualified employee exercises priority consideration, this interpretation preserves management's right to determine the minimum standard for adequate performance and prevents the promotion of an unqualified employee.
We also noted that Federal Personnel Manual (FPM) chapter 335, subchapter 1-5(c) provides that agencies have the discretion to except from their merit promotion plans consideration of employees not given proper consideration in a competitive promotion action and that under Authority precedent this discretion may be exercised through negotiations. Because we found that the provision as interpreted by the Arbitrator was enforced consistent with section 7106(a)(2)(C), we also concluded that the Agency had failed to establish that the award was contrary to management's right to select under FPM chapter 335, subchapter 1-4, requirement 4.
Accordingly, we denied these exceptions. However, we did conclude that the Arbitrator's remedy ordering the grievant to be promoted within 90 days of the date of the award was contrary to section 7106(b)(1), and we modified the award to provide that the grievant be promoted to the next available GS-9 claims authorizer position with backpay, if appropriate.
III. Positions of the Parties
The Agency contends that reconsideration should be granted because the Authority abused its discretion in U.S. Customs Service by establishing a new standard for review of arbitration awards. The Agency further contends that, assuming the new standard is a proper approach, the Authority erred by applying the approach in this case because the collective bargaining agreement provision is not an arrangement. The Agency, in addition, contends that, assuming the approach was appropriate in this case, the Authority erred in failing to find that, as interpreted by the Arbitrator, the provision abrogates management's right to select under section 7106(a)(2)(C).
The Agency also contends that reconsideration should be granted because the Authority failed to give due consideration to the FPM provisions on priority consideration and because the award fails to draw its essence from the collective bargaining agreement. Moreover, the Agency maintains that its essence arguments should be considered because these arguments only became important after U.S. Customs Service.
The Agency also contends that reconsideration should be granted because it was unfairly prejudiced by the Authority's adoption, without notice, of a new approach to the review of arbitration awards when it is contended that the award is contrary to section 7106. The Agency argues that by not limiting the new approach to prospective application, the Authority effectively denied the Agency its statutory right to file exceptions under section 7122(a) of the Statute.
The Union contends that the motion for reconsideration should be denied. The Union argues that the Authority acted in accordance with law and the intent of Congress and that the Agency was not prejudiced by the resolution of its exceptions.
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. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 37 FLRA 816.
The Agency argues, alternatively, that we abused our discretion in establishing a new standard for review of arbitration awards, that we erred by finding an arrangement, and that we erred by failing to find an abrogatio