39:0274(19)AR - - Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division - - 1991 FLRAdec AR - - v39 p274



[ v39 p274 ]
39:0274(19)AR
The decision of the Authority follows:


39 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PANAMA CANAL COMMISSION

(Agency)

and

INTERNATIONAL ORGANIZATION OF MASTERS, MATES

AND PILOTS, MARINE DIVISION

(Union)

0-AR-1623

38 FLRA 16

ORDER DENYING MOTION FOR RECONSIDERATION

January 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of our decision in Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, 38 FLRA 16 (1990). 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 38 FLRA 16

As set forth in greater detail in our decision in 38 FLRA 16, the Arbitrator found that the Agency had violated the parties' collective bargaining agreement by placing vessel pilots who had failed to begin work assignments on time in an absent-without-leave (AWOL) status. The Arbitrator determined that Article 17, Section 7(g) of the parties' agreement: (1) required the Agency to grant leave or leave without pay to pilots who are late or absent from their work assignments; and (2) prevented the Agency from placing the affected pilots in an AWOL status. The Arbitrator, therefore, concluded that the Agency, by placing grievants who had overslept in an AWOL status, had acted improperly.

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 which contended that the award was contrary to management's right to assign work under section 7106(a)(2)(B) 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 38 FLRA 16, we concluded that the Agency had not established that the award was contrary to section 7106(a)(2)(B) of the Statute. We determined that the provision of the collective bargaining agreement enforced by the Arbitrator--Article 17, Section 7(g)--constituted an arrangement for employees adversely affected by management's right to assign work. We further determined that the provision as interpreted and applied by the Arbitrator did not abrogate the exercise by management of its right to assign work. We noted, in this regard, that the "award enforcing Article 17, Section 7(g) only precludes the Agency from denying leave to the affected pilots in the circumstances of this case. Preventing the Agency from denying leave or leave without pay to the affected pilots would not prevent the Agency from denying leave to employees, including the pilots in this case, in other circumstances." 38 FLRA at 21. Accordingly, we denied the Agency's exceptions.

III. Positions of the Parties

A. Agency

The Agency contends that the impact of the Authority's decision in U.S. Customs Service constitutes "extraordinary circumstances" sufficient to warrant reconsideration of the Authority's decision in 38 FLRA 16. The Agency argues that the approach used in U.S. Customs Service had not been established at the time arbitration occurred in 38 FLRA 16. The Agency also argues that the record in 38 FLRA 16 does not contain the information necessary to permit application of the test in U.S. Customs Service. Finally, the Agency argues that neither the parties nor the Arbitrator addressed the issue of whether the disputed provision constituted an "arrangement" in the manner established in U.S. Customs Service.

The Agency contends that the Authority should remand the case to the parties for further proceedings consistent with U.S. Customs Service. According to the Agency, if evidence is permitted on remand in accordance with the decision in U.S. Customs Service, such evidence will demonstrate that the provision either did not constitute an "arrangement," or that the provision abrogates its right to assign work.

B. Union

The Union contends that the Agency's motion for reconsideration should be denied. The Union argues that the Authority's decision in 38 FLRA 16 is consistent with law. Moreover, the Union argues that, contrary to the Agency's assertion, evidence was presented to, and considered by, the Arbitrator concerning whether Article 17, Section 7(g) constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work.

IV. Analysis and Conclusions

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 Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 38 FLRA 16.

The Agency's motion for reconsideration is premised on its argument that the decision in U.S. Customs Service should not have been applied in the circumstances of our decision in 38 FLRA 16. According to the Agency, the parties should now be permitted to make arguments on remand consistent with the requirements of U.S. Customs Service. We disagree.

In U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 38 FLRA No. 118 (1991) (Social Security Administration), we reviewed an agency's motion for reconsideration that was based, among other things, on the argument that the Authority had improperly applied the decision in U.S. Customs Service to the circumstances in 37 FLRA 816. In that case, we held that the agency had not established extraordinary circumstances sufficient to warrant reconsideration of the decision in 37 FLRA 816. In reaching that conclusion, we noted that the Authority "routinely resolves cases based on the state of the law at the time cases are decided[]" and we specifically rejected the agency's argument that we did not have the authority to apply the decision in U.S. Customs Service to our decision in 37 FLRA 816. Social Security Administration, 38 FLRA No. 118, slip op. at 5.

In this case, the Agency argues that the approach used in U.S. Customs Service should not have been applied in 38 FLRA 16. We find, consistent with the decision in Social Security Administration, that: (1) application of the decision in U.S. Customs Service to our decision in 38 FLRA 16 constitutes an application of the law in effect at the time the case was heard; and (2) the Agency has not established the existence of "extraordinary circumstances" sufficient to warrant reconsideration of our decision in 38 FLRA 16. Moreover, we find that the Agency's argument concerning the need to determine the possible effects of evidence submitted on remand in accordance with U.S. Customs Service likewise does not establish the existence of extraordinary circumstances.

Accordingly, we will deny the Agency's motion for reconsideration.

V. Order

The Agency's motion for reco