43:0314(32)AR - - DOI, Bureau of Reclamation, Great Plains Region and IBEW Local 1759 - - 1991 FLRAdec AR - - v43 p314

[ v43 p314 ]
The decision of the Authority follows:

43 FLRA No. 32









LOCAL 1759



(42 FLRA 902 (1991))


November 27, 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 the Authority's decision in 42 FLRA 902 (1991). Because the Agency fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we will deny the motion.

II. Arbitrator's Award and the Decision in 42 FLRA 902

The Arbitrator held that the Agency violated the parties' collective bargaining agreement by unilaterally eliminating a Wage Board (WB) Warehouseman position in the collective bargaining unit represented by the Union and assigning the duties of the WB position to a General Schedule (GS) Supply Clerk position outside the bargaining unit. The Arbitrator ordered the Agency to begin negotiations with the Union, in accordance with the parties' collective bargaining agreement, to return the activities of the WB Warehouseman to the bargaining unit. The Arbitrator awarded backpay to a retired WB employee because the Arbitrator found that the employee prematurely retired from his WB Warehouseman position because of the Agency's unwarranted action. Also, as an additional remedy, the Arbitrator awarded backpay to the Union.

We concluded that the Agency did not demonstrate that the Arbitrator's award was deficient because it: (1) failed to draw its essence from the parties' agreement; (2) was contrary to section 704 of the Civil Service Reform Act; or (3) was inconsistent with sections 7103(a)(14)(B), 7106, and 7121(c)(5) of the Statute. Therefore, we denied the Agency's exceptions that the award was deficient on those bases. We also determined that the Arbitrator's award of backpay to the retired WB employee was not deficient. We further determined that the Arbitrator's award of backpay to the Union was contrary to the Back Pay Act. Therefore, we set aside that portion of the award.

III. Agency's Motion for Reconsideration

The Agency contends that our decision in 42 FLRA 902 is contrary to "specific mandatory language in section 704 of the Civil Service Reform Act [codified at 5 U.S.C. § 5343 note] as interpreted by" the courts in Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Rio Grande Project); United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990); and United States Department of Interior, Bureau of Indian Affairs, Yakima Agency and Wapato Irrigation Project v. FLRA, 887 F.2d 172 (9th Cir. 1989); and by the Authority in International Brotherhood of Electrical Workers, Local 611 and U.S. Department of the Interior, Bureau of Reclamation, Rio Grande Project, 37 FLRA 670 (1990) (adopting, as law of the case, Rio Grande Project) and National Federation of Federal Employees, Bureau of Indian Affairs Council and Department of the Interior, Bureau of Indian Affairs, 31 FLRA 3 (1988) (Bureau of Indian Affairs). Motion at 1.

The Agency argues that "the Authority flouted established court precedent and its own case precedent by interpreting section 704(a) broadly and inconsistently to encompass subjects 'related to' other subjects which had been the 'subject of negotiations' between the parties prior to August 19, 1972." Id. at 6. The Agency contends that "the Authority's expansive interpretation of section 704(a) . . . is contrary to law and congressional intent and must be reconsidered, reversed and no longer followed." Id. at 10.

The Agency also contends that the Authority should set aside the Arbitrator's award of backpay. The Agency argues that the Arbitrator exceeded his authority by awarding backpay to a retired employee not included in the grievance.

The Agency also argues that the award of backpay is punitive and is not authorized by the Back Pay Act.

III. 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 42 FLRA 902.

In its motion for reconsideration, the Agency cites several cases in support of the argument that the Authority misinterpreted section 704(a) of the CSRA. However, we rejected that argument in 42 FLRA 902 and the cases cited by the Agency do not provide a basis to reconsider our conclusion. See 42 FLRA at 914-16. The Agency's contention that our decision in 42 FLRA 902 is contrary to established precedent constitutes mere disagreement with our conclusions as to the meaning of section 704(a) and our finding that the grievance concerned a matter that was the subject of negotiations between the parties prior to August 19, 1972, within the meaning of section 704(a). We note particularly that the Authority's decision in Bureau of Indian Affairs is distinguishable from 42 FLRA 902. In Bureau of Indian Affairs, we found that the agency was not required to bargain under section 704(a) concerning the transfer of an employee into a work unit from another organiz