44:0954(79)AR - - IAF Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama - - 1992 FLRAdec AR - - v44 p954
[ v44 p954 ]
The decision of the Authority follows:
44 FLRA NO. 79
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS
PANAMA CANAL COMMISSION
GENERAL SERVICES BUREAU
BALBOA, REPUBLIC OF PANAMA
(43 FLRA 1012 (1992))
ORDER DENYING MOTION FOR RECONSIDERATION
AND REQUEST FOR STAY
April 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on a motion filed by the Agency seeking reconsideration of our decision in 43 FLRA 1012 (1992). The Agency also requests a stay in implementing the decision. The Union did not file an opposition to the Agency's motion for reconsideration and request for a stay. Because the Agency fails to establish that extraordinary circumstances exist warranting reconsideration of our decision, we will deny the Agency's motion for reconsideration and request for a stay.
II. The Decision in 43 FLRA 1012
In 43 FLRA 1012, we found, as relevant to the Agency's motion for reconsideration, that the Arbitrator properly awarded backpay for a period of approximately 10 years to certain firefighters for overtime compensation under the Fair Labor Standards Act. We rejected the Agency's contention that the statute of limitations contained in 31 U.S.C. § 3702(b), known as the Barring Act, prevented the Arbitrator from awarding backpay to the grievants for a period longer than 6 years prior to the filing of the grievance on November 25, 1989. We determined that the 6-year statute of limitations in 31 U.S.C. § 3702(b) applies only to claims brought before the Comptroller General and, because the issue in this case did not concern a claim brought before the Comptroller General, we concluded that the Barring Act did not apply. We cited the statement by the Claims Court in Acton v. United States, 21 Cl. Ct. 214, 223 (1990), reversed and remanded on other grounds, 932 F.2d 1464 (Fed. Cir. 1991), that the 6-year statute of limitations in the Barring Act "only applies to claims brought before the Comptroller General." We found that the Arbitrator issued his award in response to a grievance filed by the Union pursuant to the negotiated grievance procedure and we noted the Arbitrator's recognition that the grievance included matters that had been raised by the Union for approximately 10 years. We concluded that the Arbitrator had acted within his authority in determining that the grievance covered matters that the Union had grieved in a timely manner and that his backpay remedy pursuant to the Back Pay Act, 5 U.S.C. § 5596, was not limited by the 6-year statute of limitations in 31 U.S.C. § 3702(b).
III. Agency's Motion for Reconsideration
The Agency contends that the portion of our decision in 43 FLRA 1012 in which we held that the 6-year statute of limitations did not apply to the Arbitrator's award is contrary to 31 U.S.C. § 3702(b) and to 4 C.F.R. § 31.5(a). As noted by the Agency, 4 C.F.R. § 31.5(a) provides:
(a) Statutory limitations relating to claims generally. All claims against the United States Government, except as otherwise provided by law, are subject to the 6-year statute of limitations contained in 31 U.S.C. § 3702(b). To satisfy the statutory limitation, a claim must be received by the General Accounting Office, or by the department or agency out of whose activities the claim arose, within 6 years from the date the claim accrued. The burden of establishing compliance with the statute of limitations rests with the claimant.
The Agency contends that we misapplied the decision of the Claims Court in Acton v. United States and asserts that that decision means only that the 6-year statute of limitations does not apply to claims brought before the Claims Court. The Agency maintains that the Barring Act and 4 C.F.R. § 31.5(a) apply to any claims against the United States, whether filed with the Comptroller General or with an agency, and that the Comptroller General's interpretation of the Barring Act and the regulations is entitled to deference. The Agency states that it contacted a representative of the Office of General Counsel of the General Accounting Office, who advised the Agency that "to the extent he understood the Authority's holding, it was inconsistent with 4 CFR Part 31 (1991) generally and 4 CFR 31.5 (effective date June 15, 1989) specifically." Motion for Reconsideration at 2.
The Agency maintains that the claims of the firefighters in this case constitute claims against the United States that are subject to the 6-year statute of limitations. The Agency argues that, regardless of the Arbitrator's finding that the matter had been in contention for approximately 10 years, no claims were filed with the Agency until the filing of the grievance on November 25, 1989, and, therefore, the 6-year statute of limitations bars the payment of any portion of the claims that arose prior to November 25, 1983.
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 43 FLRA 1012.
Specifically, most of the Agency's arguments concerning 31 U.S.C. § 3702(b) raised in its motion for reconsideration were also raised by the Agency in 43 FLRA 1012 and were considered by us in making our decision. See 43 FLRA at 1027-28. We note that the Agency did not cite 4 C.F.R. § 31.5(a) in its exceptions, although those regulations were in force at the time and could have been cited. We find nothing in those regulations that establishes that the extent of the remedy that the Arbitrator provided was erroneous. Further, the Agency has cited no cases, and we are aware of none, in which an arbitrator's award under section 7121 of the Statute has been found deficient on the ground that it provided backpay relief for a period longer than 6 years prior to the date that a claim was filed. See Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166 (1987), decision on remand Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1103 (1990) (denying agency's exception that award of backpay for period longer than 6 years was contrary to the Back Pay Act).
We note that 4 C.F.R. § 31.5(a) provides that the 6-year statute of limitations in 31 U.S.C. § 3702(b) applies to "[a]ll claims against the United States Government, except as otherwise provided by law[.]" The claims involved in this case were resolved under the parties' negotiated grievance and arbitration procedures pursuant to 5 U.S.C. § 7121 and the backpay remedy was made under the authority of the Back Pay Act and Office of Personnel Management regulations implementing the Back Pay Act. We further note that the Comptroller General gives deference to awards issued under grievance and arbitration procedures established pursuant to the Statute. The Comptroller General's regulations provide:
Payments made pursuant to an arbitration award which is final and binding under 5 U.S.C. 7122(a) or (b) will be considered conclusive on [the General Accounting Office] in its settlement of the accounts involved, and the Comptroller General will not review or comment on the merits of such an award. However, payments made pursuant to such an award do not constitute precedent for payment in other instances not covered by the award.
4 C.F.R. § 22.7(a).
The dispute in this matter concerned the decision of the Arbitrator resolving a grievance which the Arbitrator accepted as timely filed. The Arbitrator determined that the grievant firefighters were entitled to backpay for the approximately 10-year period claimed as the result of the Agency's unjustified and unwarranted personnel practice in failing to pay the grievants the overtime compensation to which they were entitled. We found that the Arbitrator's award, including the period for payment of backpay, was in compliance with the Back Pay Act. Consequently, the matter before the Arbitrator concerned a claim "otherwise provided by law" for purposes of 4 C.F.R. § 31.5 and the Arbitrator's final and binding award is not subject to review by the Comptroller General pursuant to 4 C.F.R. § 22.7(a).
We conclude that the Agency's arguments in its motion for reconsideration constitute nothing more than disagreement with our findings and conclusions in 43 FLRA 1012 and are merely an attempt to relitigate the merits of our decision. As such, these arguments do not constitute extraordinary circumstances warranting reconsideration of our decision. See, for example, U.S. Department of the Air Force, Headquarters, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Fed