38:1480(118)AR - - HHS, SSA, Kansas City, MO and AFGE Local 1336 - - 1991 FLRAdec AR - - v38 p1480



[ v38 p1480 ]
38:1480(118)AR
The decision of the Authority follows:


38 FLRA No. 118

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

KANSAS CITY, MISSOURI

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1336

(Union)

0-AR-1639

(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 abrogation of the Agency's statutory rights. The Agency also argues that we failed to give due consideration to the FPM provisions on priority consideration and that the award fails to draw its essence from the collective bargaining agreement. These arguments constitute nothing more than disagreement with our decision and an attempt to relitigate the merits of the case. As such, these arguments provide no basis for reconsidering our decision in 37 FLRA 816 because they do not constitute extraordinary circumstances. See, for example, U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Local 171, 38 FLRA 541 (1990). Furthermore, because the Agency did not contend in its exceptions in 37 FLRA 816 that the award did not draw its essence from the agreement, this argument is untimely and can provide no basis for reconsideration.

Moreover, nothing in U.S. Customs Service warrants consideration of the Agency's essence argument. The Agency had the opportunity to contend in its exceptions that the award did not draw its essence from the agreement, but failed to do so. Indeed, this ground for review has long been recognized by the Authority and the test for essence has remained unchanged. Although we acknowledged in U.S. Customs Service that whether an award draws its essence from the collective bargaining agreement would be an appropriate basis for challenging an arbitrator's interpretation and application of the provision of the collective bargaining agreement enforced by the arbitrator, nothing we stated in that case substantively changed this ground for review of an arbitration award. Thus, although we reiterated in 37 FLRA 816 the suggestion that an essence argument might be an appropriate ground for review in such cases, we find no basis for considering such an argument when it is raised for the first time in a motion for reconsideration.

We also conclude that the Agency's argument that we should not have applied the approach of U.S. Customs Service in 37 FLRA 816 provides no basis for reconsidering our decision. The Authority routinely resolves cases based on the state of the law at the time cases are decided. For example, Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988). Furthermore, it is well established that an agency's ability to revise approaches on particular issues is an essential component of the administrative decisionmaking process. See, for example, Maxwell Company v. NLRB, 414 F.2d 477, 479 (6th Cir. 1969). Courts readily acknowledge that an agency is free to alter its past rulings and practices. For example, Local 32, American Federation of Government Employees v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985). The extent of the mandate of the courts is only that "an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed[.]" Id. (quoting Greater Boston Television Corporation v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970)). In our view, the Agency is simply arguing that we lack the power to resolve exceptions to arbitration awards in the manner set forth in U.S. Customs Service. We reject this claim for all the reasons stated when we adopted the new approach.

Accordingly, we wi