45:1075(109)CA - - Panama Canal Commission, Balboa, Republic of Panama and Panama Area Metal Trades Council, National Maritime Union and INTL. Organization of Masters Mates and Pilots - - 1992 FLRAdec CA - - v45 p1075



[ v45 p1075 ]
45:1075(109)CA
The decision of the Authority follows:


45 FLRA No. 109

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PANAMA CANAL COMMISSION, BALBOA

REPUBLIC OF PANAMA

(Respondent/Agency)

and

PANAMA AREA METAL TRADES COUNCIL

NATIONAL MARITIME UNION AND

INTERNATIONAL ORGANIZATION OF MASTERS

MATES AND PILOTS

(Charging Parties/Union)

6-CA-80337

(43 FLRA 1483 (1992))

ORDER DENYING MOTION FOR RECONSIDERATION

AND REQUEST FOR STAY

September 3, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Respondent's motion for reconsideration and request for a stay of our decision in 43 FLRA 1483 (1992). The General Counsel filed an opposition to the motion. The Union filed a response supporting the motion in part and opposing the motion in part.

For the following reasons, we conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Respondent's motion for reconsideration and request for a stay.

II. The Decision in 43 FLRA 1483

In 43 FLRA 1483, the complaint alleged that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally terminating the contractual right of nonprofessional and professional non-preference eligible excepted service (NEES) employees to appeal adverse actions under the Respondent's administrative appeals procedures. For reasons set out in more detail below, we found that the Respondent did not violate section 7116(a)(1) and (8) of the Statute by refusing to comply with section 7121(e)(1) of the Statute but that the Respondent violated section 7116(a)(1) and (5) of the Statute by repudiating certain contractual provisions.

A. Section 7116(a)(1) and (8)

We determined that the Respondent did not violate section 7116(a)(1) and (8) of the Statute by failing to comply with section 7121(e)(1) of the Statute. We found that section 7121(e)(1) applies only in situations where employees have the right to challenge adverse actions through both a negotiated grievance procedure and a statutory appellate procedure. Based on the Civil Service Due Process Amendments, 5 U.S.C. §§ 4303, 7511, 7701 (Supp. II 1990) (the Amendments) and on the reasoning of court and Authority decisions, we concluded that the NEES employees in this case may not grieve adverse actions through a negotiated grievance procedure.

In reaching this conclusion, we noted that, as the Amendments specifically excluded employees of the Panama Canal Commission from the extension to NEES employees of rights provided to competitive service employees for appealing adverse actions, 5 U.S.C. § 7511(b)(8) (Supp. II 1990), the employees' status was identical to that of NEES employees before passage of the Amendments. We also examined various court decisions, issued before passage of the Amendments, involving whether NEES employees were entitled to challenge adverse actions through a negotiated grievance procedure. See Department of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990) (Department of the Treasury); and U.S. Department of Health and Human Services v. FLRA, 858 F.2d 1278 (7th Cir. 1988) (HHS). We noted that in Department of the Treasury and HHS, the courts found that Congress intentionally denied NEES employees the rights afforded to other Federal employees for appealing adverse actions, including access to appeal those actions through the negotiated grievance procedure. Further, we stated that in National Labor Relations Board and National Labor Relations Board Professional Association, 35 FLRA 1116 (1990) (NLRB), the Authority adopted the courts' position that NEES employees were precluded by law from challenging adverse actions through the negotiated grievance procedure. We also noted that in Panama Canal Commission and International Association of Firefighters, Local 13, 35 FLRA 1140 (1990) (Firefighters, Local 13), the Authority found that NEES employees of the Panama Canal Commission were precluded by law from appealing adverse actions through the negotiated grievance procedure.

Consistent with these decisions, we found that the Panama Canal Commission employees in this case had no right to grieve adverse actions through a negotiated grievance procedure. We stated that we reached this conclusion "regardless of whether the adverse actions against the NEES employees in this case arise under title 5 or under another personnel system . . . ." 43 FLRA at 1504. Because we concluded that the NEES employees in this case did not have the right to grieve adverse actions, we further concluded that section 7121(e)(1) of the Statute did not apply and that the Respondent's actions did not constitute a refusal to comply with section 7121(e)(1) of the Statute.

Accordingly, we concluded that the Respondent did not violate section 7116(a)(1) and (8) of the Statute as alleged.

B. Section 7116(a)(1) and (5)

In determining whether the Respondent's unilateral termination of the disputed portions of three contractual provisions constituted unlawful repudiation in violation of section 7116(a)(1) and (5) of the Statute, we first examined whether the disputed portions of the provisions were consistent with law. We found that the disputed portions of the provisions did not conflict with section 7121(a)(1) of the Statute. In this regard, we stated that section 7121(a)(1) did not apply in this case because that section concerns matters which, unlike the adverse actions in this case, fall within the coverage of a negotiated grievance procedure. Noting that the disputed portions of the contractual provisions were not inconsistent with section 7121(a)(1) of the Statute and that there was no assertion or other basis on which to conclude that the disputed portions were unlawful, we concluded that the disputed portions of two of the three provisions were lawful and enforceable.1/

Having found that the disputed portions of two of the contractual provisions were consistent with law, we next examined whether the Respondent repudiated the disputed portions of those provisions in violation of section 7116(a)(1) and (5) of the Statute. Applying the framework set forth in Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211 (1991), we concluded that the Respondent's unilateral termination of the disputed portions of the two provisions constituted unlawful repudiation. In reaching this conclusion, we stated that the parties did not dispute that:

the portions of the parties' agreement[s] allowing NEES professional and nonprofessional employees to elect to appeal adverse actions through the administrative appeals procedures were previously agreed to by the parties and were provisions of the parties' collective bargaining agreements.

43 FLRA at 1508. We stated further that the parties did not dispute that the Respondent unilaterally terminated the provisions as to NEES employees and had refused to allow NEES employees to appeal adverse actions through the administrative appeals procedures. As the Respondent had failed and refused to comply with unambiguous contractual provisions and as the Respondent's actions constituted "more than a mere breach of the terms of the parties' agreements," we concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute. Id.

To remedy the unfair labor practices, we ordered the Respondent to reinstate, retroactive to the date of repudiation, the right of NEES employees to appeal adverse actions through the administrative appeals procedures. We also ordered the Respondent to allow NEES employees who were denied the right to file an appeal through the administrative appeals procedures to have the opportunity to file such an appeal.

III. The Respondent's Motion for Reconsideration

The Respondent requests that we reconsider our finding that NEES employees of the Panama Canal Commission are precluded by law from grieving adverse actions through the parties' negotiated grievance procedure. The Respondent argues that "the Authority failed to address" the finding by the court in Department of the Treasury that "Congress envisioned NGP [negotiated grievance procedure] rights for employees in other personnel systems." Motion for Reconsideration at 3. The Respondent also argues that the Authority's finding is inconsistent with National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25 (1991) (Provision 6) (Naval Air Station) and U.S. Department of Defense Dependents Schools, Germany Region and Overseas Education Association, 38 FLRA 1432 (1991) (DODDS, Germany), where the Authority did not conclude that NEES employees were precluded by law from challenging adverse actions through the negotiated grievance procedure. The Respondent notes the Authority's citation in the instant case to U.S. Department of Defense Dependents Schools, Alexandria, Virginia and Overseas Education, 41 FLRA 982 (1991) (OEA), but contends that OEA is inconsistent with Department of the Treasury. According to the Respondent, if "NEES employees in an other personnel system are prohibited from challenging an adverse action via the NGP, the second sentence [of section 7121(e)(1)] is rendered meaningless because it only applies to NEES employees." Motion for Reconsideration at 7.

The Respondent further requests that we reconsider our finding that the disputed portions of the contractual provisions are lawful and enforceable. The Respondent argues that the issue of the enforceability of the provisions was "not contemplated and therefore not addressed by the parties" because "[n]either the Authority nor any court had ever held" that NEES employees in other personnel systems were precluded from using the negotiated grievance procedure to contest adverse actions. Id. at 2, 8. The Respondent asserts that despite "the [A]gency's request for oral argument and a subsequent telephonic offer of supplemental briefs," the issue of the enforceability of the provisions "was resolved without the benefit of facts or arguments from the parties." Id. The Respondent maintains that its motion should be granted in these circumstances so that the Authority may "receive input from the parties on this issue." Id. at 2.

Additionally, the Respondent contends that the disputed portions of the contractual provisions are unenforceable. The Respondent argues that Agency memoranda, alleged drafts of the disputed contractual provisions, and other exhibits attached to its motion "clearly demonstrate" that at the time the agreements were negotiated, the parties believed that "the NGP was available to [Agency] NEES employees to appeal adverse actions." Id. at 11-12. Moreover, the Respondent asserts that, in effect, the Authority determined "that the parties negotiated with respect to the [A]gency procedure" and that the disputed portions of the contractual provisions "constitute an independent contractual right of access to the [A]gency procedure." Id. at 11. The Respondent disputes these determinations. According to the Respondent, it could not have negotiated an independent contractual right of access to its administrative procedure consistent with section 7121(a)(1) of the Statute because neither agreement excludes adverse actions from its coverage and "section 7121(a)(1) establishes the NGP as the exclusive procedure for all matters which the parties have not excluded from coverage of the NGP . . . ." Id. at 12.

The Respondent further argues that to the extent that the Authority found that the disputed portions of the contractual provisions had been negotiated, "it is surprising that the Authority did not find [the Agency] procedure to also be an NGP, and as such, precluded by law." Id. at 10. According to the Respondent, if allowing NEES employees in other personnel systems to challenge adverse actions through the negotiated grievance procedure is inconsistent with Congress' comprehensive scheme, then these NEES employees should not obtain this right through an agency grievance procedure.

Finally, the Respondent requests that we reconsider the remedy in this case. The Respondent argues that the remedy should be applied prospectively rather than retroactively because the issue of whether the Respondent's "NEES bargaining unit employees were precluded as a matter of law from grieving adverse actions under the NGP was not resolved until the issuance of the Authority's decision in the instant case." Id. at 12-13. The Respondent also argues that there is no basis for making access to its administrative appeals procedures retroactive because the right of NEES employees in this case "to appeal adverse actions under the [A]gency procedure was only established in the instant case" and "does not derive from any contractual provision[.]" Id. at 13. Further, the Respondent contends that a prospective remedy would "relieve[] the [A]gency" of having to retroactively deny NEES employees' access to the negotiated grievance procedure for contesting adverse actions by "invalidat[ing] past decisions of arbitrators" rendered pursuant to the negotiated grievance procedure. Id. Moreover, in view of "the potential number of appeals which may result from the Authority's decision," the Respondent requests that the Order in this case be stayed pending our ruling on this motion. Id. at 14.

IV. Positions of the Union and the General Counsel

A. Union

The Union supports the Respondent's motion to the extent that the motion requests reconsideration of our finding that NEES employees of the Panama Canal Commission may not appeal adverse actions through the negotiated grievance procedure. The Union opposes the Respondent's motion in all other respects. The Union also opposes the Respondent's request for a stay.

The Union argues that there is no basis for the Respondent's claim that the parties did not negotiate a contractual right of access to the Respondent's administrative appeals procedures. The Union asserts that the "clear terms" of the disputed portions of the provisions indicate that "Commission employees have a contractual guarantee of access to the administrative appeals procedure." Union's Response at 5. The Union further asserts that the Respondent's Director of Industrial Relations "acknowledged this guarantee in his two letters . . . repudiating the disputed [portions of the] contractual provisions." Id. The Union notes the Respondent's reference to exhibits attached to the Respondent's motion and contends that "these exhibits are not part of the record of [this] case." Id. at n.3. The Union claims that if the exhibits "prove anything at all, it is that the parties did, indeed, negotiate the issue of access [to] the administrative appeals procedure." Id. at 5 (emphasis in original).

Further, the Union disputes the Respondent's contention that NEES employees who cannot appeal adverse actions through the negotiated grievance procedure must also be barred from using the administrative appeals procedures. The Union also disputes the Respondent's contention that the parties, consistent with section 7121(a)(1) of the Statute, could not have negotiated an independent contractual right of access to the administrative appeals procedures by NEES employees. According to the Union, the administrative appeals procedures constitute appellate procedures within the meaning of section 7121(e)(1) of the Statute and, therefore, "it is entirely proper for Commission employees to be accorded a contractual right to appeal their adverse actions through . . . the administrative procedure." Id. at 7.

Finally, the Union rejects the Respondent's argument that the remedial order should be prospective only. The Union argues that a retroactive order is proper because the "collective bargaining agreements each contain a clear contractual guarantee of access to the administrative [appeals] procedure." Id. at 8. The Union further argues that, contrary to the Respondent's assertion, employees "who successfully appealed [adverse actions] through the negotiated grievance procedure should not be stripped of their victories." Id. at 9. Rather, the Union maintains that those employees should not "be forced to suffer" because they "were given no choice" but to appeal their cases through the process which the Respondent made available to them or "forego their rights altogether." Id. at 8, 9.

B. General Counsel

The General Counsel opposes the Respondent's motion for reconsideration. The General Counsel contends that the Respondent has not established extraordinary circumstances in this case because the Respondent's arguments constitute "mere disagreement with the Authority's Decision and Order." General Counsel's Opposition at 1. Moreover, the General Counsel maintains that the arguments raised by the Respondent concerning the enforceability of the disputed contractual provisions "were entirely available to [the] Respondent through the course of the proceeding" and, therefore, do not constitute extraordinary circumstances. Id.

Further, the General Counsel moves to strike the exhibits attached to the Respondent's motion because "they do not constitute evidence properly introduced or received into the record . . . ." Id. at 2 (citing U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524 (1990)).

V. 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. For the following reasons, we conclude that the Respondent has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 43 FLRA 1483.

A. First Alleged Ground for Reconsideration

According to the Respondent, "the Authority failed to address" the Respondent's argument that the court in Department of the Treasury found that "Congress envisioned NGP rights for employees in other personnel systems." Motion for Reconsideration at 3. Further, the Respondent argues that the Authority's conclusion is contrary to the Authority's decisions in DODDS, Germany and Naval Air Station.

The Respondent's argument with respect to Department of the Treasury constitutes nothing more than disagreement with our decision and an attempt to relitigate the merits of the case. In 43 FLRA 1483, we considered Department of the Treasury and stated that "nothing in the court's decision [in Department of the Treasury] compels a different result from NLRB in the circumstances of this case." 43 FLRA at 1504. Accordingly, the Respondent has not demonstrated extraordinary circumstances within the meaning of section 2429.17 of our Rules and Regulations. See, for example, U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 39 FLRA 1238 (1991) (Norfolk Naval Shipyard).

We reject the Respondent's argument that our conclusion in this case is contrary to the Authority's decisions in DODDS, Germany and Naval Air Station. In DODDS, Germany, an arbitrator rendered an award concerning the removal of an employee from employment in the personnel system under title 20, U.S. Code--another personnel system within the meaning of section 7121(e)(1) of the Statute. The Authority found that it had no jurisdiction over the case because it involved an award relating to a matter described in section 7121(f) of the Statute. Because the Authority had no jurisdiction, it did not address the agency's argument that the NEES employees in that case were precluded by law from appealing adverse actions through the negotiated grievance procedure. Moreover, even if DODDS, Germany were construed as holding that NEES employees in the title 20 personnel system may grieve adverse actions, we find that such a conclusion would be consistent with our decision here because, unlike the employees in the instant case, NEES employees in the title 20 system are not specifically excluded from the coverage of the Amendments.

In Naval Air Station, the Authority found negotiable a proposal allowing temporary and intermittent employees working for a nonappropriated fund (NAF) instrumentality to grieve certain adverse actions through a negotiated grievance procedure. Pursuant to 5 U.S.C. § 2105(c), NAF employees are not covered by personnel laws applying to competitive and excepted service employees, including laws dealing with adverse actions, except "as otherwise specifically provided in [title 5]." Section 7103(a)(3) of the Statute specifically provides that the terms of the Statute apply to NAF instrumentalities. Such terms include provisions for negotiated grievance procedures. Further, adverse action procedures for NAF employees are not provided by law, but are established by regulation of the employing agency. Therefore, as access to the negotiated grievance procedure for NAF employees is governed by the Statute and adverse action procedures are governed by agency regulations, NAF employees may negotiate access to appeal adverse actions through the negotiated grievance procedure to the extent not inconsistent with governing agency regulations. See Naval Air Station, 43 FLRA at 45-46.

Because of the unique nature of NAF employment, the fact that NAF employees are not covered by the Amendments does not mean that Congress specifically intended to deny those employees access to the negotiated grievance procedure. On the contrary, as we stated above, personnel laws relating to competitive or excepted service employees do not apply to NAF employees except by specific inclusion, whereas such laws generally apply to the excepted service employees in this case except by specific exclusion.

As stated above, NAF employees are specifically covered by the terms of the Statute governing negotiated grievance procedures and nothing indicates that such employees are precluded from grieving adverse actions. Moreover, there are no statutory appellate procedures under which NAF employees may appeal such actions. See American Federation of Government Employees, Local 1799 and Department of the Army, Aberdeen Proving Ground, Maryland, 22 FLRA 574 (1986) (Provision 1) (Aberdeen), order denying request for reconsideration 23 FLRA 926 (1986) (NAF employees could not choose to appeal adverse actions through the agency's internal administrative system because the system was not a statutory appellate procedure established by or pursuant to law). In these circumstances, we find that NAF employees may properly grieve adverse actions.

However, based on the court's decisions in Department of the Treasury and HHS, we conclude that the specific exclusion of Panama Canal Commission employees from the Amendments evidences an intent by Congress that those employees not have access to the negotiated grievance procedure to appeal adverse actions. The Agency has not addressed the fact that employees of the Panama Canal Commission are specifically excluded from the Amendments and, therefore, has offered no other interpretation of that exclusion.2/ Further, the Respondent has previously acknowledged that its administrative appeals procedures were "established by or pursuant to law" under Aberdeen. 43 FLRA at 1497, 1500.3/ Accordingly, for the foregoing reasons, we conclude that Naval Air Station is distinguishable from this case.

Finally, we note the Respondent's contention that our decision in 43 FLRA 1483 renders the second sentence of section 7121(e)(1) of the Statute "meaningless because [that provision] only applies to NEES employees." Motion for Reconsideration at 7. The Respondent's contention appears to assume that our decision in this case applies to all NEES employees whose adverse actions arise in other personnel systems. However, our decision applies only to NEES employees of the Panama Canal Commission. Nothing in our decision addresses whether other NEES employees whose adverse actions arise in other personnel systems, such as the title 20 employees in DODDS, are precluded from appealing adverse actions through the negotiated grievance procedure.

Accordingly, the Respondent's first alleged ground for reconsidering 43 FLRA 1483 provides no basis for reconsidering that decision.

B. Second Alleged Ground for Reconsideration

The Respondent further argues that we should reconsider our finding that the disputed portions of the contractual provisions are lawful and enforceable because the issue of the enforceability of the provisions was "not contemplated" by the parties. Motion for Reconsideration at 2. Citing exhibits attached to its motion, the Respondent maintains that, at the time the agreements were negotiated, the parties believed that "the NGP was available to [Agency] NEES employees to appeal adverse actions." Id. at 11-12. The Respondent also asserts that the contractual provisions are unenforceable because they: (1) could not have been negotiated consistent with section 7121(a)(1) of the Statute; or (2) constitute a second negotiated grievance procedure or should have been applied as if they did.

We find, contrary to the Respondent's argument, that the issue of the enforceability of the contractual provisions was "contemplated" by the parties. Id. at 2. We noted in 43 FLRA 1483 that by letters dated February 11, 1988, the Respondent unilaterally terminated the contractual right of its NEES employees to grieve adverse actions through the negotiated grievance procedure because, in its view, such action was required by section 7121(e) of the Statute and the Authority's decision in Aberdeen. See 43 FLRA at 1484-87. In other words, the Respondent believed that the contractual provisions were contrary to Authority case law and the Statute. We find that the Respondent raised the issue of the enforceability of the terminated contractual provisions and, thus, clearly "contemplated" that the Authority would examine that issue. Motion for Reconsideration at 2. Accordingly, the Respondent's failure to raise further arguments relating to the enforceability of the contractual provisions does not constitute extraordinary circumstances warranting reconsideration of this case.4/

We further find that the Respondent improperly relies on the exhibits attached to its motion to dispute the enforceability of the provisions by allegedly showing the intent of the parties at the time the provisions were negotiated. The Respondent does not contend, and the record does not indicate, that the exhibits were previously unavailable to the Respondent. Moreover, the exhibits address an issue that was raised by the Respondent at the outset of the proceedings in this case and, therefore, the exhibits could have been referenced and submitted during those proceedings. Accordingly, we will not consider the exhibits and find that the Respondent's failure to timely submit the exhibits or raise arguments related to them does not constitute extraordinary circumstances warranting reconsideration of this case.

Further, we reject the Respondent's argument that the disputed portions of the contractual provisions could not have been negotiated consistent with section 7121(a)(1) of the Statute. The Respondent's argument with respect to section 7121(a)(1) of the Statute constitutes nothing more than disagreement with our decision and an attempt to relitigate the merits of the case. As such, the Respondent has not demonstrated extraordinary circumstances within the meaning of section 2429.17 of our Rules and Regulations. See Norfolk Naval Shipyard. The argument that the disputed contractual provisions were inconsistent with section 7121(a)(1) was fully addressed in 43 FLRA 1483. See 43 FLRA at 1506-07.

With respect to whether the contractual provisions providing access to the administrative appeals procedures may constitute a negotiated grievance procedure, we note that in 43 FLRA 1483, the Respondent acknowledged that its administrative appeals procedures do not comply with the statutory requirements for negotiated grievance procedures. See 43 FLRA at 1497. As the Respondent's administrative appeals procedures do not comply with the requirements of section 7121(b) of the Statute, they may not be considered a negotiated grievance procedure. Accordingly, we reject the Respondent's argument that the contractual right of its NEES employees to appeal adverse actions through the administrative appeals procedures may "also be an NGP, and as such, precluded by law." Motion for Reconsideration at 10. Moreover, we reject the Respondent's assertion that NEES employees who were denied access to grieve adverse actions through a negotiated grievance procedure should be similarly denied access to an agency's administrative appeals procedures. Nothing in Department of the Treasury or HHS compels a conclusion that such NEES employees are also precluded from challenging adverse actions through an agency's administrative appeals procedures, particularly where, as here, the Respondent has previously acknowledged that its administrative appeals procedures were "established by or pursuant to law" under Aberdeen. 43 FLRA at 1497, 1500.

Accordingly, the Respondent's second alleged ground for reconsidering 43 FLRA 1483 provides no basis for reconsidering that decision.

C. Third Alleged Ground for Reconsideration

Finally, the Respondent argues that we should reconsider the remedy in this case. In particular, the Respondent contends that the remedy should be applied prospectively only. The Respondent contends that a prospective remedy would "relieve[] the [A]gency" of having to retroactively deny NEES employees' access to the negotiated grievance procedure for contesting adverse actions by "invalidat[ing] past decisions of arbitrators" rendered pursuant to the negotiated grievance procedure. Id. The Union argues that employees "who successfully appealed [adverse actions] through the negotiated grievance procedure should not be stripped of their victories." Union's Response at 9. Further, the Union maintains that employees should not "be forced to suffer" because they "were given no choice" but to appeal their cases through the process which the Respondent made available to them or "forego their rights altogether." Id. at 8, 9.

We reject the Respondent's contention that the remedy should be applied prospectively only. Sections 7105(g) and 7118 of the Statute vest the Authority with broad powers to remedy violations of the Statute. See generally National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). Specifically, section 7105(g)(3) provides that in carrying out its functions under the Statute, the Authority may "require an agency . . . to take any remedial action it considers appropriate to carry out the policies of this chapter." Further, section 7118(a)(7) specifies the remedies available in unfair labor practice cases and includes "such other action as will carry out the purposes of this chapter." Our order in 43 FLRA 1483 allows those employees who can demonstrate that they would have filed an appeal through the administrative appeal procedures but for the Respondent's improper denial of that right since February 11, 1988, to file such an appeal. If questions arise as to whether an employee has demonstrated that he or she would have filed such an appeal but for the Respondent's denial of that right, such questions can be resolved during compliance proceedings.

Accordingly, we find that, in the circumstances of this case, such an order best effectuates the purposes of the Statute and is consistent with the broad remedial powers authorized by the Statute. We also note that, contrary to the Respondent's contention, nothing in our Order requires the Respondent to invalidate past arbitration awards or take any other action with regard to such awards. To interpret the Order to require the Respondent to invalidate past awards would penalize employees who, due to the Respondent's unlawful actions, used the only procedure available to them at that time.

Consequently, the Respondent's third alleged ground for reconsidering 43 FLRA 1483 provides no basis for reconsidering that decision.

In summary, we find that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of the decision, and we will deny the Respondent's motion. For the same reasons, we will deny the Respondent's request for a stay of the decision.

VI. Order

The Respondent's motion for reconsideration and the Respondent's request for a stay of the Authority's Decision and Order in 43 FLRA 1483 are denied.




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