45:0522(44)CA - - AFGE Local 1923 and HHS, SSA, Baltimore, MD - - 1992 FLRAdec CA - - v45 p522



[ v45 p522 ]
45:0522(44)AR
The decision of the Authority follows:


45 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

0-AR-2211

(45 FLRA 106 (1992))

ORDER DENYING MOTION FOR RECONSIDERATION

July 16, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion for reconsideration of 45 FLRA 106 (1992) filed by the Union under section 2429.17 of the Authority's Rules and Regulations. The Agency did not file an opposition to the motion. Because the Union fails to establish that extraordinary circumstances exist warranting reconsideration of the decision, we will deny the Union's motion.

II. The Decision in 45 FLRA 106

In 45 FLRA 106, we set aside the Arbitrator's award because we concluded that it was deficient under section 7122(a) of the Statute. As set forth in more detail in our decision, the Arbitrator found that the Agency violated the parties' collective bargaining agreement and the Fair Labor Standards Act (FLSA) by assigning the grievants to a certain work shift without providing them overtime compensation. Although the Arbitrator found that the grievants "'did not work more than five [8-hour] days consecutively or more than five days in any administrative week[,]'" he sustained the grievance and awarded backpay for uncompensated overtime. 45 FLRA at 111 (quoting Award at 20).

We found that, under 29 U.S.C ° 207(a)(1) and 5 C.F.R. ° 551.501(a) and (b), no entitlement to overtime pay arises unless an employee works more than 40 hours in a 7-day administrative workweek. In view of the aforementioned arbitral finding regarding the grievants' administrative workweek, we concluded that the Arbitrator's award of backpay for overtime was contrary to the FLSA and applicable regulations and we set aside the award.

III. Union's Request for Reconsideration

The Union argues that extraordinary circumstances exist warranting reconsideration of the decision in 45 FLRA 106. In particular, the Union contends that the decision is inconsistent with American Federation of Government Employees v. Office of Personnel Management, 821 F.2d 761 (D.C. Cir. 1986) (AFGE v. OPM). The Union also contends that, by setting aside the award, the decision fails to provide a remedy for the contract violation found by the Arbitrator.

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 Union has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 45 FLRA 106.

We reject the Union's argument that our decision conflicts with AFGE v. OPM. In that case, the court addressed the relationship between regulations issued by the Office of Personnel Management (OPM) and the Department of Labor (DOL) under the FLSA and found, as relevant here, that such regulations must be consistent. AFGE v. OPM, 821 F.2d at 770. In 45 FLRA 106, we found no conflict between the relevant OPM and DOL regulations. The Union's contention that our decision conflicts with AFGE v. OPM constitutes mere disagreement with our conclusion that the relevant regulations are consistent and our finding that the grievants were not entitled to overtime pay under the FLSA.

We also reject the Union's argument that the decision should be reconsidered because, by setting aside the award, we have deprived the Union of a remedy for the Agency's violation of the parties' agreement. The Arbitrator's award did not address separately such violation and, as the award conflicted with law, we set it aside. In this regard, the Union's reliance on United States Customs Service, Southwest Region, El Paso, Texas and National Treasury Employees Union, 44 FLRA 1128 (1992), is misplaced. In that case, we determined that an award of backpay was appropriate because the agency committed an unjustified personnel action that resulted in a reduction in employees' earnings. In this case, there is no basis on which to conclude that the Agency improperly reduced the grievants' compensation.

We find that the Union's motion for reconsideration is merely an attempt to relitigat