47:1246(115)AR - - AFGE Local 96 and VA Medical Center, St. Louis, MO - - 1993 FLRAdec AR - - v47 p1246



[ v47 p1246 ]
47:1246(115)AR
The decision of the Authority follows:


47 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 96

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

ST. LOUIS, MISSOURI

(Agency)

0-AR-2377

(47 FLRA No. 87 (1993))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

July 16, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Union's request for reconsideration of the Authority's decision in 47 FLRA No. 87 (1993). The Agency did not file an opposition to the request. We conclude that the Union has failed to establish that extraordinary circumstances exist which warrant reconsideration of our decision. Accordingly, we will deny the Union's request for reconsideration.

II. Arbitrator's Award and the Decision in 47 FLRA No. 87

As set forth in more detail in 47 FLRA No. 87, the Arbitrator sustained an Agency grievance alleging that the Union violated the parties' collective bargaining agreement when it posted and distributed throughout Agency facilities a newsletter containing an article criticizing a particular supervisor. Among other things, the article referred to a probationary employee who had been recently terminated, and noted that certain of the supervisor's subordinates were "temporary status and on probation[.]" Id., slip op. at 1.

The parties' agreement prohibits the posting or distribution of "libelous or defamatory material" in Agency facilities. Id. at 2 n.2. In resolving the grievance, the Arbitrator concluded that the disputed article was "the precise type of case which the [contract] language was meant to address." Id. at 4. The Arbitrator reached that conclusion after determining, among other things, that the article contained several inaccuracies. As relevant here, the Arbitrator noted that, with respect to the probationary employee discussed in the article, "'there was a great deal of factual basis for the termination[.]'" Id. at 3. The Arbitrator further determined that this employee was actually a "'permanent employee subject to a one-year trial period.'" Id. In this connection, the Arbitrator concluded that "'the article erroneously stated that 'these employees are temporary status and on probation[.]'" Id. As a result of these and other findings, the Arbitrator sustained the grievance and ordered the Union to issue a retraction stating that the article contained "certain factual inaccuracies . . . and that . . . many of the allegations . . . could not be substantiated." Award at 19.

The Union filed exceptions to the Arbitrator's award, alleging that the award was contrary to law and public policy, and was based on nonfacts. For the reasons set forth in 47 FLRA No. 87, we rejected the Union's contentions and denied the exceptions to the award.

III. Request for Reconsideration

The Union argues that the Authority misstated and did not properly resolve the Union's exception that the award is based on nonfacts. In particular, the Union disputes the Arbitrator's findings that: (1) the newsletter statement that certain of the affected supervisor's subordinate employees were temporary and on probation was erroneous; and (2) there was a factual basis for the termination of the probationary employee. With respect to the first alleged nonfact, the Union contends that the newsletter statement was not erroneous. With respect to the second alleged nonfact, the Union contends that the article mentioned only that the employee in question had been terminated. Therefore, according to the Union, the Arbitrator's "discussion of the basis for [the employee's] termination is . . . premised on the nonfact that the newsletter discusses the circumstances surrounding the . . . termination." Request at 3. The Union contends that the Authority should find that these matters constitute nonfacts because they "are the statements that the Union is expected to retract under the award." Id. at 4.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision.

We conclude that the Union has not established extraordinary circumstances, within the meaning of section 2429.17. Rather, the Union has raised the same arguments in its exceptions which we considered in 47 FLRA No. 87. We conclude that the Union's arguments here constitute mere disagreement with our conclusions in 47 FLRA No. 87, and are an attempt to relitigate the merits of the case. As such, these a