40:1032(91)AR - - Army, New Cumberland Army Depot, New Cumberland, PA and AFGE, Local 2004 - - 1991 FLRAdec AR - - v40 p1032
[ v40 p1032 ]
The decision of the Authority follows:
40 FLRA No. 91
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before us on a request for reconsideration of 40 FLRA 186 (1991) filed by the Union under section 2429.17 of the Authority's Rules and Regulations. The Agency filed an opposition to the request. Because the Union fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we will deny the Union's request.
II. The Authority's Decision in 40 FLRA 186
In 40 FLRA 186, we rejected the Union's contention that the Arbitrator's award of Environmental Differential Pay (EDP) retroactive to April 7, 1988, rather than October 5, 1978, violated 5 U.S.C. § 5343(c)(4), 5 C.F.R. § 532.511(a)(1), and the Back Pay Act, 5 U.S.C. § 5596. We decided as follows:
Nothing in the Back Pay Act, 5 U.S.C. § 5343(c)(4), 5 C.F.R. § 532.511(a)(1), or appendix J of FPM Supplement 532-1 specifies the appropriate period of time for which an EDP payment is due. Moreover, the Union has not demonstrated that any other statute or regulation required that EDP be made retroactive to October 5, 1978. Consequently, the Union has not demonstrated that the grievants were entitled by law or regulation to EDP retroactive to October 5, 1978.
40 FLRA at 193.
III. The Union's Request for Reconsideration
The Union contends that the Arbitrator "improperly conclude[d]" that the grievants' entitlement to retroactive EDP before April 7, 1988, the date on which the grievance was filed, "was forfeited" by not filing a grievance before such time. Request for Reconsideration at 8. The Union asserts that, because the Arbitrator determined "that the grievants' work involved unusually severe hazards," the Back Pay Act and 5 U.S.C. § 5343(c)(4) require that EDP be paid for the time that the grievants' work involved such hazards. Id.
IV. The Agency's Opposition
The Agency argues that "[t]he arguments raised by the [U]nion in its motion for reconsideration were previously raised in its initial exception to the arbitrator's award . . . [and] considered and rejected by the Authority in [40 FLRA 186]." Opposition at 1-2. Thus, according to the Agency, as the Union's "motion is simply an attempt to relitigate its initial exception[,]" the Union has not established extraordinary circumstances warranting reconsideration of 40 FLRA 186. Id. at 3.
V. 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 Author