53:0267(36)NG - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1997 FLRAdec NG - - v53 p267

[ v53 p267 ]
The decision of the Authority follows:

53 FLRA No. 36













(52 FLRA 1471 (1997))



August 8, 1997


Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of 52 FLRA 1471 (1997). The Union did not file an opposition to the request.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that the Agency has failed to establish that extraordinary circumstances exist. Accordingly, we deny the Agency's motion.

II. Decision in 52 FLRA 1471

The Arbitrator issued an award on October 10, 1995 (original award), sustaining a grievance alleging that the Agency violated reduction-in-force (RIF) regulations when it separated the grievant from service during a RIF in 1990. In this award, the Arbitrator ordered the grievant's reinstatement, backpay, and attorney fees and retained jurisdiction "solely for the purpose of resolving any dispute between the [p]arties over the specific remedy to be granted [the grievant] and the amount of [attorney fees]." Motion, Attachment 1 at 13. Subsequently, the parties submitted letters to the Arbitrator concerning the award. In a supplemental award issued on February 6, 1996, the Arbitrator specified the amount of backpay.

Subsequently, the Agency filed three exceptions. As relevant here, the Agency contended in the second exception that the grievant would have been separated during a second RIF in August 1991 and, therefore, a backpay award that extended beyond August 1991 was contrary to the Back Pay Act and its implementing regulation.

The Authority determined that: (1) as neither party had filed exceptions to the original award, it had become final and binding; and (2) the retention of jurisdiction by the Arbitrator to resolve disputes that might arise concerning the original award did not extend the time limit for filing exceptions to the award. Citing United States Customs Service, Region I, Boston, Massachusetts and National Treasury Employees Union, 15 FLRA 816, 817 (1984) (Customs Service, Region I), the Authority stated that only where an arbitrator modifies an award in such a way as to give rise to the deficiencies alleged in the exception does the filing period begin with the supplemental award. For the reasons fully set forth in 52 FLRA 1471, the Authority concluded that the deficiency alleged in the second exception arose from the original award, not from the supplemental award. Accordingly, the Authority dismissed the exception as untimely.(*)

III. Agency's Motion for Reconsideration

The Agency argues that its exception concerns the specific remedy--the "amount of back pay and period of coverage of the award of 'full back pay'"--which was not addressed by the Arbitrator when he issued the original award. Motion at 3 (quoting original award at 13). It also argues that the exception concerns a matter over which the Arbitrator retained jurisdiction and, therefore, the retention of jurisdiction by the Arbitrator extended the time limit for filing exceptions.

With respect to the merits of the exception, the Agency asserts, based on arguments it made in 52 FLRA 1471, that the supplemental award is deficient to the extent that it awards the grievant backpay for any period after August 1991.

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 85-87 (1995) (identifying a limited number of situations in which extraordinary circumstances have been found to exist). As relevant here, extraordinary circumstances have been found to exist where a moving party has established that the Authority erred in its remedial order, process, conclusion of law, or factual finding. Id. at 86-87. A moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. Id. at 87.

The original award was issued over 4 years after the date on which the Agency claims the grievant would have been separated as a result of the August 1991 RIF. In the original award, the Arbitrator ordered the Agency to reinstate the grievant with full backpay. The Agency's argument that the grievant is entitled to backpay for only 11 months because she would have been separated during the August 1991 RIF constitutes a challenge to the Arbitrator's determination in the original award that the grievant was entitled to reinstatement with full backpay. Consequently, the alleged deficiency concerns a matter that arose and was decided in the original award, and was not modified in the supplemental award.

Further, an arbitrator's retention of jurisdiction for a period of time to resolve questions or problems that might arise concerning the award does not render an award interlocutory or extend the time limit for filing exceptions. Customs Service, Region I, 15 FLRA at 817. As previously stated, only where an arbitrator modifies an