54:0615(65)AR - - NFFE Local 2030 and Interior, Bureau of Land Management, Idaho Falls, ID - - 1998 FLRAdec AR - - v54 p615
[ v54 p615 ]
The decision of the Authority follows:
54 FLRA No. 65
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
IDAHO FALLS, IDAHO
(53 FLRA 1136 (1998))
ORDER DENYING MOTION FOR RECONSIDERATION
July 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on the Union's motion for reconsideration of the Authority's Decision in 53 FLRA 1136 (1998).(1) The Agency did not file an opposition to the motion.
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 Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.
II. Decision in 53 FLRA 1136
In 53 FLRA 1136, the Authority concluded that the Union failed to establish that the Arbitrator's award was deficient under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute). The award denied a grievance alleging that the Agency's reassignment of the grievant constituted improper discipline and violated the Whistleblower Protection Act.(2)
In the award, the Arbitrator concluded that "by not accepting the grievant's resignation," the District Manager "demonstrated she held no animosity toward the grievant and did not direct his reassignment because of his allegations of interference in law enforcement or [his] grievance filing relative to reorganization." Award at 10 (emphasis added). The Authority found that the Arbitrator's conclusion was based on his factual findings that: (1) the grievant became upset and resigned over what he perceived was management's interference in law enforcement issues; (2) the District Manager did not immediately accept his resignation but placed him on administrative leave; (3) the District Manager gathered information on the grievant's resignation; (4) the District Manager made a prudent administrative judgment; and (5) the District Manager determined that the grievant's "precipitous resignation was stark evidence of his unsuitability for continued assignment as a ranger." 53 FLRA at 1143 (quoting Award at 10). The Authority concluded that the Arbitrator's findings, which were not excepted to, established that there was clear and convincing evidence that the Agency would have reassigned the grievant in the absence of the protected disclosures. The Authority also stated that although the grievant was not required to produce evidence of a retaliatory motive as part of his WPA claim, the Arbitrator did not err in considering the lack of such motive as a factor in his analysis of whether the Agency satisfied its burden of proof. Accordingly, the Authority found the award was not deficient as contrary to the WPA.(3)
III. Motion for Reconsideration
The Union asserts that extraordinary circumstances warrant reconsideration of the Authority's decision with respect to the finding "that the Agency did not reassign [the grievant] out of law enforcement in violation of the [WPA]." Motion for Reconsideration (Motion) at 1. The Union contends that "newly discovered" evidence "crucial to the decision reached by the Authority [was] not . . . presented to the Authority" because such evidence was not available at the time of the arbitration hearing.(4) Id. at 1 and 2. According to the Union, this evidence "casts . . . doubt" on whether the Agency proved by "'clear and convincing evidence'" that it would have reassigned the grievant in August 1994 in the absence of his protected disclosures. Id. at 1.
The documents submitted by the Union include a September 1996 audit report prepared by the Department of Interior's Office of Inspector General (OIG) concerning occupancy trespass on land managed by the Bureau of Land Management (Bureau), and a memorandum, dated April 2, 1997, to Agency managers in Idaho concerning the audit report and reiterating the Agency's policy on the maintenance of trespass records. The Union asserts that these documents show that the OIG was investigating the Bureau's enforcement of trespass issues--the same issues that the grievant raised with management--and that this evidence supports its position that the decision to reassign the grievant was based on an "improper motive." Id. at 3. The Union also submitted affidavits prepared in March 1997 by two witnesses purporting to set forth facts that demonstrate that the Agency's motive for reassigning the grievant was improper.
Additionally, the Union argues that the Authority erred in holding that the Arbitrator's factual findings supported the conclusion that the Agency proved by clear and convincing evidence that it would have reassigned the grievant in the absence of the protected disclosures.
IV. Analysis and Conclusions
Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration of an Authority decision 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