41:1429(111)AR - - VA Medical Center, Allen Park, MI and AFGE Local 933 - - 1991 FLRAdec AR - - v41 p1429
[ v41 p1429 ]
The decision of the Authority follows:
41 FLRA No. 111
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on requests filed by the Union and the Agency seeking reconsideration of our decision in 38 FLRA 688 (1990). There is no provision in the Authority's regulations for filing oppositions to requests for reconsideration of Authority decisions. However, in response to the Union's request, each party was allowed to file a supplemental brief in opposition to the other party's request for reconsideration.(*)
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. Because the Union and the Agency have not established extraordinary circumstances within the meaning of section 2419.17 to warrant reconsideration of our decision, we deny the requests.
II. The Decision in 38 FLRA 688
In 38 FLRA 688, the Arbitrator sustained a grievance over the Agency's alleged violation of the parties' collective bargaining agreement by refusing to pay a GS-3 employee, who was temporarily assigned to a GS-6 supervisory position, at the GS-6 pay rate for the time that she performed the higher-graded duties. The Arbitrator rejected the Agency's argument that the time-in-grade restrictions of Federal Personnel Manual (FPM) chapter 300, subchapter 6 prevented the grievant's advancement over three grade levels. The Arbitrator concluded that under the relevant provision of the parties' agreement, the grievant was entitled to a temporary promotion to GS-6 and the Agency was estopped from raising the time-in-grade restrictions of subchapter 6 of the FPM. He awarded the grievant backpay with interest for the work performed at the higher grade. He also ordered the Agency to pay reasonable attorney fees.
The Authority denied the Agency's exceptions to the award of backpay and interest. The Authority concluded that by ruling that the Agency was estopped from applying the time-in-grade restrictions, the Arbitrator effectively found that the Agency had waived the time-in-grade restrictions in the case of the grievant. With respect to the Agency's exception to the award of attorney fees, the Authority found that the award of attorney fees was contrary to the Back Pay Act because it was not supported by a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement. The award was modified by striking the portion pertaining to attorney fees.
III. The Agency's Request for Reconsideration
A. Positions of the Parties
The Agency contends that the Authority's decision in 38 FLRA 688 is based on an erroneous interpretation of the Arbitrator's award and that the Authority abused its discretion by denying the Agency's exceptions. The Agency reasserts its position that the award is contrary to law.
The Agency contends that the Arbitrator never held that the Agency waived the time-in-grade restrictions in the FPM but rather held that the FPM restrictions did not apply in the case of a temporary, non-competitive assignment. The Agency claims that, contrary to the Authority's finding in 38 FLRA 688, its exceptions did address the Arbitrator's statement that the Agency was estopped from raising the FPM as a defense. The Agency argues that the Arbitrator's conclusion that Chapter 300, subchapter 6 of the FPM is ambiguous in relationship to the parties' agreement is not consistent with Authority precedent requiring that agreement provisions be applied in a manner consistent with the FPM.
The Agency claims that the Authority's finding that the Agency effectively waived the provisions of the FPM constitutes an abuse of the Authority's discretion because there is no evidence that the Union requested such a waiver. The Agency maintains that the Authority adopted the Union's interpretation of the award without examining the award itself and failed to examine the award for legal sufficiency.
In its opposition to the Agency's request for reconsideration, the Union maintains that the Authority correctly affirmed the Arbitrator's finding that the Agency was estopped from asserting the time-in-grade restrictions and that the Authority's decision properly affirmed the Agency's waiver of authority under the FPM. The Union also argues that the Authority fully addressed the Agency's arguments concerning time-in-grade restrictions and rejected them.
B. Analysis and Conclusions
As noted above, section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "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 688.
We conclude that the Agency's arguments constitute nothing more than disagreement with and an attempt to relitigate the merits of our decision in 38 FLRA 688. As such, these arguments do not constitute extraordinary circumstances warranting reconsideration of our decision. See, for example, U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 40 FLRA 1032 (1991).
We note that, subsequent to the decision in 38 FLRA 688, the Office of Personnel Management (OPM) issued formal rules revising the time-in-grade requirements contained in Part 300, subpart F of the Code of Federal Regulations. See 56 Fed. Reg. 23,001 (1991) (to be codified at 5 C.F.R. §§ 300.601-300.606). The effective date of the revisions was June 19, 1991. Revised section 300.603(b)(7) contains the exclusion from the time-in-grade restrictions that permits agency heads to redelegate authority to waive based on hardship or inequity. One of the bases on which an agency head may waive the time-in-grade restrictions is as follows:
(7) Advancement to avoid hardship to an agency or inequity to an employee in an individual meritorious case but only with the prior approval of the agency head or his or her designee. However, an employee may not be promoted more than three grades during any 52-week period on the basis of this paragraph.
56 Fed. Reg. at 23,003. The new language replaces and has substantially the same effect as the previous language of 5 C.F.R. § 300.603(d)(2). In this regard, OPM noted that it had adopted an agency suggestion that the language on agency redelegation of authority be retained and explained that its purpose in changing the language "was to make clear agency heads could redelegate this authority." See 56 Fed. Reg. at 23,001. We find that both the prior and the revised provisions support our decision in 38 FLRA 688 that the Arbitrator found an effective waiver of the time-in-grade restrictions by the Agency and that the award is consistent with the Federal Personnel Manual provisions that implement the time-in-grade restrictions.
Accordingly, we will deny the Agency's request for reconsideration.
IV. The Union's Request for Reconsideration
A. Positions of the Parties
The Union asks that the Authority reconsider that portion of the decision in 38 FLRA 688 that sets aside the award of attorney fees for lack of required support. The Union contends that the Arbitrator should be given an opportunity to clarify the award of attorney fees and that the Authority should remand the matter to the Arbitrator for that purpose.
The Union acknowledges that the Agency's exceptions included an argument that the award of attorney fees was improper. However, the Union asserts that the Agency did not except to the award of attorney fees "on the basis that the [A]rbitrator failed to articulate the relevant statutory criteria[,]" but rather on the basis that the award of attorney fees "was part of a broader back pay remedy which the Agency believed conflicted with the time-in-grade restrictions." Union's Request for Reconsideration at 5. The Union maintains that the Agency waived its right to object to the award of attorney fees based on the Arbitrator's failure to consider the statutory criteria because the Agency did not assert that argument in its exceptions. The Union contends that the Authority "should reconsider the attorney fee matter because the Union has never had an opportunity to present its position concerning the [A]rbitrator's failure to make the necessary findings." Id. at 4.
The Union asserts that it is entitled to attorney fees under the statutory criteria and claims that the Authority's decision striking the attorney fee award would result in an injustice. The Union contends that the Authority's practice of modifying or striking attorney fee awards that are not based on an articulated application of the pertinent statutory criteria is inapposite to this case and further contends that the Authority should reconsider that policy.
In its opposition, the Agency maintains that the Authority should not reverse its finding that the award of attorney fees is deficient. The Agency disputes the Union's claim that the Agency cannot object to the award of attorney fees because it failed to raise that argument in its exceptions. The Agency asserts that the Union should have recognized that the award did not comply with the legal prerequisites for awarding attorney fees and the absence of an argument by the Agency regarding the deficiency does not negate the existence of the deficiency. The Agency also asserts that the Union made an illegal ex parte contact with the Arbitrator when it requested him to clarify his award to articulate reasons for granting attorney fees. The Agency contends that it is not bound by any further findings by the Arbitrator because he no longer retained jurisdiction after he issued his award in this case.
B. Analysis and Conclusions
We reject the Union's contention that the Authority should reconsider the attorney fee matter because the Union never had an opportunity to present its position concerning the Arbitrator's failure to make the necessary findings under the Back Pay Act. As the Union acknowledges, the Agency excepted to the award of attorney fees. Moreover, as we stated in 38 FLRA 688, we have repeatedly held that an award of attorney fees under the Back Pay Act requires a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement. 38 FLRA at 699. See also U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Philadelphia Metal Trades Council, Local 93, 40 FLRA 1112 (1990), petition for review filed sub nom. Philadelphia Metal Trades Council v. FLRA, No. 91-3369 (3d Cir., June 13, 1991). In these circumstances, we find that the issue of the legal sufficiency of the award of attorney fees was properly before us and the Union had an opportunity to present its position on the issue.
We have also repeatedly stated that an award granting attorney fees without the proper support will be found deficient, the provision for attorney fees will be struck, and the issue will not be remanded to the parties for further proceedings. Id. In 38 FLRA 688 we concluded that the Arbitrator's order that the Agency must pay reasonable attorney fees did not meet the requirement for a fully articulated, reasoned decision supporting the determination that fees are warranted.
The Union's arguments constitute nothing more than disagreement with and an attempt to relitigate the merits of our decision regarding attorney fees in 38 FLRA 688. The Union does not establish the extraordinary circumstances necessary for reconsideration. See U.S. Department of Health and Human Services, Social Security Administration, Wichita, Kansas and American Federation of Gover