44:0950(78)AR - - VA Medical Center, Atlanta, GA and NFFE Local 2102 - - 1992 FLRAdec AR - - v44 p950
[ v44 p950 ]
The decision of the Authority follows:
44 FLRA No. 78
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(44 FLRA 427 (1992))
ORDER DENYING REQUEST FOR RECONSIDERATION
April 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before us on a request for reconsideration of 44 FLRA 427 (1992) filed by the Agency under section 2429.17 of our Rules and Regulations. The Union filed an opposition to the request. Because the Agency fails to establish that extraordinary circumstances exist warranting reconsideration of our decision, we will deny the request.
II. The Decision in 44 FLRA 427
In 44 FLRA 427, we rejected the Agency's contention that an arbitrator's award was deficient because it was contrary to 38 C.F.R. § 1.303(b)(1). The Arbitrator found that the Agency violated 38 C.F.R. § 1.303(b)(1) in its establishment of parking fees for its Atlanta facility. The Agency had argued, among other things, that the award was contrary to this regulation because the award imposed a ceiling on the parking fees. We examined the language of
38 C.F.R. § 1.303(b)(1) and the record evidence and concluded that the Agency had not established that the award was deficient.
As to the Agency's contention that the award imposed a ceiling on the parking fees, we noted that the Arbitrator expressly stated that:
[I]n accordance with [38 C.F.R. § 1.303], the rate for parking at the [Agency] shall be not less than the lowest rate charged at any VA medical facility. Should that rate be lower than the current rate at the [Agency], employees shall be reimbursed back to June 17, 1991, provided that proper parking receipts are available.
44 FLRA at 433 (quoting Award at 27). We found nothing in the award that imposed a ceiling on the parking rates that the Agency may establish. Rather, we found that the award required, in accordance with 38 C.F.R. § 1.303(b)(1), that "the rate for parking at the Agency's facility 'shall not be less than the lowest rate charged at any VA medical facility.'" Id. Thus, we found that the award simply set a floor for parking rates at the Agency's facility.
III. Positions of the Parties
A. Agency's Request for Reconsideration
The Agency states that in its exceptions it argued that the award conflicted with 38 C.F.R. § 1.303(b)(1) because it "set a ceiling on parking fees." Request for Reconsideration (Request) at 1. The Agency notes that the Authority rejected this contention and found that the "award did not set a ceiling but, consistent with the VA regulation, established a floor of the lowest rate." Id. According to the Agency, this holding "misconstrues the effect of the arbitration award." Id.
The Agency notes that the award states that the parking rate shall be not less than the lowest rate consistent with the regulation. However, the Agency contends that the award also states that if "the lowest" rate is lower than the current rate at the Agency's facility, employees shall be reimbursed. Id. The Agency asserts that the effect of this part of the award "is to establish parking rates at the same rate as VA's lowest rate, thus imposing a ceiling, as well as a floor, of the lowest VA rate." Id. at 1-2. According to the Agency, "[t]his defeats the flexibility of any reasonable rate above the floor authorized by the regulation." Id. at 2. The Agency states that "[i]f, as the Authority ruled, the arbitration award did not set a ceiling, but only a floor, allowing [the Agency] to establish any rate above the floor, [the Agency] would have no objection to the award." Id. at n.1.
B. Union's Opposition
The Union contends that the Agency's request is nothing more than an attempt to relitigate the merits of the case. According to the Union, the phrase "'not less than' in the regulation plainly includes 'equal to.'" Opposition at 2. Therefore, in the Union's view, "an award setting rates for [the Atlanta facility] at an amount equal to the lowest rate charged at the VA medical facility with the lowest established parking fees is wholly consistent with the Agency's regulations." Id. The Union further argues that the parties jointly granted the Arbitrator the authority to establish parking rates in accordance with law and regulation. The Union notes that the Arbitrator retained jurisdiction and informed the parties that if they could not agree on a rate, he would "set the rate himself[.]" Id. at 3. Therefore, the Union asserts that the Agency's request should be denied.
IV. Analysis and Conclusions
Section 2429.17 of our 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 44 FLRA 427.
The Agency's assertion that our decision misconstrues the award provides no basis for reconsidering the decision in 44 FLRA 427. As we found in 44 FLRA 427, nothing in the award imposes a ceiling on the parking rates that the Agency may establish. The award provides that the rate for parking at the Agency's facility shall be not less than the lowest rate charged at any VA medical facility. The award further provides that if the rate that is established in accordance with 38 C.F.R. § 1.303(b)(1) for parking at the Agency's facility is lower than the current rate at the Agency's facility, employees shall be reimbursed back to June 17, 1991, provided that proper parking receipts are available. Consequently, we conclude that the Agency has failed to establish that extraordinary circu