49:0007(2)AR - - EEOC and AFGE, National Council of EEOC Locals No. 216 - - 1994 FLRAdec AR - - v49 p7



[ v49 p7 ]
49:0007(2)AR
The decision of the Authority follows:


49 FLRA No. 2

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF EEOC LOCALS NO. 216

(Union)

0-AR-2433

(48 FLRA 822 (1993))

_____

ORDER DENYING MOTION FOR RECONSIDERATION

AND REQUEST FOR STAY

February 3, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in 48 FLRA 822 (1993). The Agency also requested a stay of the decision in 48 FLRA 822. The Union did not file an opposition to the motion or the request for a stay. Because the Agency fails to establish that extraordinary circumstances exist that warrant reconsideration of our decision, we will deny the Agency's motion for reconsideration and request for a stay.

II. Arbitrator's Award and the Decision in 48 FLRA 822

The decision in 48 FLRA 822 considered the Agency's exceptions to an award issued by Arbitrator Joseph Lazar. The Arbitrator held a hearing concerning three consolidated grievances protesting the Agency's implementation of a performance appraisal system. The Agency maintained that the Arbitrator was not properly selected and the Agency refused to attend the arbitration hearing. The Arbitrator issued an award resolving the grievances.

In exceptions filed with the Authority, the Agency contended that the award was deficient because the Arbitrator was not properly selected pursuant to the parties' collective bargaining agreement. The Agency also contended that the Arbitrator had no jurisdiction over the grievances under section 7116(d) of the Statute because the subject matter of the grievances concerned the same issues that were contained in unfair labor practice (ULP) charges that had been filed by the Union before the Union filed the grievances. For reasons fully set forth in 48 FLRA 822, we found that the Agency failed to establish that the award was deficient and we denied the Agency's exceptions.

III. Motion for Reconsideration

The Agency contends that our decision in 48 FLRA 822 is contrary to law and that extraordinary circumstances exist warranting reconsideration of that decision. The Agency asserts that allowing the Arbitrator's award to stand would seriously disrupt the Agency's operations and affect its ability to carry out its mission by preventing the Agency from implementing and administering its performance and recognition system (PARS).

The Agency renews the contention made in its exceptions that the Arbitrator was not properly selected as a national arbitrator pursuant to Article 44 of the parties' collective bargaining agreement. The Agency asserts that nothing in Article 44 permits one party to select a national arbitrator unilaterally and argues that the Authority should have reached that conclusion based on its own interpretation of the agreement, rather than reaching a contrary conclusion after deferring to the Arbitrator's erroneous interpretation of the agreement. The Agency maintains that the Authority's conclusion that the Arbitrator's award was not deficient on the ground that it failed to draw its essence from the parties' collective bargaining agreement was based on an erroneous legal standard. The Agency argues that it is inappropriate in this case to defer to the Arbitrator's interpretation of the agreement because the Arbitrator was unilaterally selected by the Union and his selection was not legitimate.

In further support of its contention that the Arbitrator was not properly selected, the Agency maintains that the Arbitrator cannot arbitrate a dispute concerning his own employment and asserts that the Arbitrator should be disqualified from being a national arbitrator because he is biased. The Agency contends that the Arbitrator is charging excessive fees for his services and that he improperly "manipulat[ed]" the record "by moving the interim award from one grievance (New Orleans) to the next (PARS)[,]" in order to provide himself with additional employment. Motion for Reconsideration at 10, 9. The Agency also contends that the Arbitrator is biased because he refused to disqualify himself as a national arbitrator pursuant to the collective bargaining agreement when requested to do so by the Agency.

The Agency also renews its contention that the grievances resolved by the Arbitrator in the award in 48 FLRA 822 were barred under section 7116(d) of the Statute from arbitration by previously-filed ULP charges concerning identical issues. The Agency maintains that the grievances did not concern the implementation of PARS, but rather concerned the Agency's failure to bargain over PARS, which was also the subject of the ULP charges. Therefore, the Agency argues, the issues in the grievances and the ULP charges were the same and the grievances should have been barred by the ULP charges under section 7116(d) of the Statute. The Agency further contends that the Authority failed to consider its argument that a third ULP charge, filed by the Union on March 27, 1992, and withdrawn prior to the Agency's implementation of PARS on April 1, 1992, served as a bar to arbitration of the grievances.(*) The Agency maintains that the Authority must find that the third ULP charge concerned the implementation of PARS and, therefore, constituted a bar to the grievances pursuant to section 7116(d) of the Statute.

The Agency asks that the Authority stay implementation of the decision in 48 FLRA 822 pending reconsideration of that decision.

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 48 FLRA 822. Rather, we find that the Agency has raised the same arguments in its exceptions which we considered and rejected in 48 FLRA 822. We also find that the Agency has attempted to raise new allegations--that the Arbitrator did not have the authority to arbitrate his own employment and that he is biased--that were not, but could have been, raised in its exceptions.

The Agency's assertion that the Arbitrator was improperly selected unilaterally by the Union was considered and rejected by the Authority in 48 FLRA 822. In its exceptions, the Agency made essentially the same arguments regarding the selection of the Arbitrator that it is making in its motion for reconsideration. The Agency's contention is merely an attempt to relitigate this issue. As such, this contention does not demonstrate extraordinary circumstances warranting reconsideration of our decision. See, for example, U.S. Department of the Air Force, Headquarters 92nd Bomb Wing, Fairchild Air Force Base, Washington and National Federation of Federal Employees, Local 11, 48 FLRA 783, 785 (1993). Nothing in the Agency's arguments in this regard, therefore, establishes that extraordinary circumstances exist which warrant reconsideration of our decision concerning the selection of the Arbitrator.

The Agency's argument that the Arbitrator's award was barred under section 7116(d) of the Statute was also considered and addressed by the Authority in 48 FLRA 822. We compared the grievances resolved by the Arbitrator with the ULP charges which the Agency asserted barred arbitration of those grievances and found that the issues and the underlying legal theories of the grievances were not identical to those of the ULP charges. With respect to the Agency's assertion that we did not consider a third ULP charge, Case No. CH-CA-20302, filed by the Union on March 27, 1992, and subsequently withdrawn, we did consider that portion of the Agency's argument in reaching our decision and the Agency's assertion provides no basis for granting the Agency's motion for reconsideration. See U.S. Department of the Navy, Navy Resale Activity, Guam and American Federation of Government Employees, Local 1689, 40 FLRA 515 (1991), order denying motion for reconsideration of 40 FLRA 30 (1991) (allegation that Authority failed to consider an exception failed to demonstrate extraordinary circumstances necessary for reconsideration of Authority's order). However, as the Agency acknowledges, that ULP charge was mentioned only briefly in a footnote to the Agency's exceptions. The Agency stated that the third ULP charge was similar to the first two ULPs and was a charge "on some of these same issues." Exceptions in 48 FLRA 822 at 4 n.8. Although the Agency could have attached a copy of the third ULP charge to its exceptions as it did with the first two charges, it failed to do so.

Further, on examination of the ULP charge in Case No. CH-CA-20302 submitted by the Agency in its motion for reconsideration, we find nothing to support the Agency's contention that the grievances were barred because of this charge. The ULP charge states, in part, that "the Agency has refused and/or failed to negotiate with the [e]xclusive [r]epresentative concerning the adverse impact and implementation of the Agency's Performance Plans for bargaining unit employees." Motion for Reconsideration, Attachment 4. Even if the Agency had submitted this ULP charge with its exceptions, we would not have found that the charge concerned the implementation of the PARS rather than a failure to negotiate over the impact and implementation of the PARS. Also, we note that the Agency did not actually implement PARS until April 1, 1992, which was after the date of the ULP charge in Case No. CH-CA-20302. We made a similar finding in 48 FLRA 822 when we found that the ULP charges "[did] not allege that the Agency committed a ULP by actually implementing a performance appraisal system, and indeed, could not have contained such an allegation because the Agency had not implemented a performance appraisal system at the time the ULP charges were filed." 48 FLRA at 829. Similarly, the third ULP charge was filed prior to the Agency's actual implementation of PARS and, thus, could not have been a protest of that implementation.

Consequently, we conclude that the Agency's arguments concerning section 7116(d) of the Statute do not establish extraordinary circumstances which warrant reconsideration of that aspect of our decision. See, for example, U.S. Department of the Interior, Bureau of Reclamation, Upper Colorado Region, Colorado River Storage Project, Power Operation Office, and U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region and International Brotherhood of Electrical Workers, Locals 2159 and 1759, 46 FLRA 1202, 1207 (1993).

With respect to the Agency's contentions that the Arbitrator could not arbitrate his own employment and that the Arbitrator was biased, we find that such matters are not properly before us. We have held that arguments made in a motion for reconsideration that were not made in exceptions filed with the Authority are untimely and can provide no basis for reconsideration. See U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 38 FLRA 1480, 1483 (1991), order denying motion for reconsideration of 37 FLRA 816 (1990). In its exceptions in 48 FLRA 822, the Agency made no arguments concerning the Arbitrator's authority to arbitrate his own employment or that he was biased. Further, the Agency has not shown that it was unable to make such arguments had it desired to do so. Consequently, the Agency's contentions in this regard provide no basis for granting reconsideration of our decision in 48 FLRA 822.

In sum, we conclude that the Agency's arguments constitute nothing more than disagreement with our findings and conclusions in 48 FLRA 822 and that the Agency has failed to establish that extraordinary circumstances exist which would warrant reconsideration of 48 FLRA 822. Accordingly, we will deny the Agency's motion for reconsideration. See id.

We also conclude that the Agency has failed to establish extraordinary circumstances or any other basis which warrants a stay of our decision in 48 FLRA 822. Accordingly,