U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency) and American Federation of Government Employees, Local 2142 and National Federation of Federal Employees, Local 797 and International Association of Machinists and Aerospace Workers, Lodge 2049 (Unions)

[ v57 p290 ]

57 FLRA No. 61

U.S. DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2142

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 797

and

INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
LODGE 2049
(Unions)

0-AR-3309-REC
(56 FLRA 1057 (2001))

_____

ORDER DENYING MOTION FOR
RECONSIDERATION

June 22, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope [n1] , Members

I.     Statement of the Case

      This case is before the Authority on the Unions' motion for reconsideration of the Authority's decision in 56 FLRA 1057 (2001).

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. We conclude that the Unions fail to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Unions' motion.

II.     Decision in 56 FLRA 1057

      In 56 FLRA 1057, the Arbitrator ruled that employees were entitled to have received environmental differential pay (EDP) for exposure to asbestos. He ordered the Agency to pay eligible employees differential pay, with interest, for the 6-year period preceding the filing of the grievance. In addition, the Arbitrator ordered contractual attorney fees pursuant to a contingency fee arrangement between employees and the Unions' attorneys to be segregated and paid to the attorneys at the time of the payment of the award. In a supplemental award, the Arbitrator clarified the process by which the contractual attorney fees would be distributed. Specifically, the Arbitrator ordered as follows:

[T]he orders pertaining to the segregation and payment of the Unions' contractual attorney's fees at the time of distribution and payment of the award means that the Arbitrator finds that the Unions have, pursuant to their authority to represent the Bargaining Units, contractually agreed on behalf of the individual employees that 33 1/3% of the EDP award shall be paid to the Unions' attorneys in accordance with the contractual attorney's fees agreement. . . . The CCAD [Corpus Christi Army Depot] "Agency head" is, therefore, directed, pursuant to 5 C.F.R. § 550.311(c) to permit and make deductions from the EDP to be paid to the eligible employees pursuant to this award in the amount of 33 1/3% which shall be paid to [the Unions' attorneys] . . . . In the alternative, if necessary, the Agency is directed to take and effectuate whatever actions or procedures are necessary at the time of the distribution of the award hereunder to provide for and ensure that 33 1/3% of the award is paid to [the Unions' attorneys].

56 FLRA at 1058 (quoting award at 1). The Authority determined that the supplemental award was deficient to the extent that it directed the head of Corpus Christi Army Depot to permit and make deductions from EDP to pay the contractual attorney fees.

      The Authority ruled that the Arbitrator's order was inconsistent with 5 C.F.R. § 550.311, which pertains to allotments from federal employee pay. The Authority noted that § 550.311(a) permits deductions for very limited purposes, none of which includes deductions for the benefit of attorneys. The Authority also noted that § 550.311(c) authorizes the head of the agency to permit allotments for other purposes and that the Arbitrator had invoked the authority of § 550.311(c) when he ordered that the head of Corpus Christi Army Depot was to permit and make deductions from the EDP award pursuant to § 550.311(c) in the amount of contractual attorney fees. The Authority ruled that for purposes of § 550.311(c), the agency head must be a head of an executive department and that Corpus Christi Army [ v57 p291 ] Depot was not an executive department. Accordingly, the Authority vacated the portion of the award ordering the head of the depot to permit and make deductions from the EDP award because it was contrary to § 550.311(c).

      The Authority next addressed the Arbitrator's alternative order that the Agency take and effectuate whatever actions or procedures were necessary at the time of the distribution of the award to provide for and ensure the payment of contractual attorney fees. The Authority found that the actions or procedures available to the Agency were limited by the restrictions of sovereign immunity and the allotment procedures of 5 C.F.R. part 550, subpart C. The Authority noted that before an allotment for the payment of contractual attorney fees can be authorized, the head of the agency, within the meaning of 5 C.F.R. § 550.311, must permit the deduction. The Authority additionally noted that before an allotment can be executed under § 550.312(a), each bargaining unit employee must specifically designate the amount and must specifically designate that the allotment is to be paid to the Unions' attorneys.

      To give effect, in accordance with law and regulation, to this order, the Authority modified the award to direct that the Corpus Christi Army Depot submit a request to the `head of the agency,' within the meaning of § 550.311, to consider authorizing an allotment for the payment of the contractual attorney fees. Id. at 1076. The Authority emphasized that the agency head may rule on the request as the agency head deems appropriate and that nothing in the decision was intended to limit the agency head's discretion. The Authority advised that if the agency head authorized the allotment, Corpus Christi Army Depot must publicize the authorization and permit bargaining unit employees to designate the Unions' attorneys for payment of an allotment in satisfaction of the contractual attorney fee agreement between the Unions and their attorneys.

III.     Motion for Reconsideration  [n2] 

      The Unions claim that the following extraordinary circumstances exist that warrant reconsideration and modification of the Authority's decision in 56 FLRA 1057: (1) modification and clarification is necessary to ensure that the Employee beneficiaries of the Award receive full, complete, and effective relief as provided and intended under the original Award[;] and (2) if the Authority's decision is not modified as sought herein, the opportunity and ability of employees to develop and prosecute EDP claims will likely and effectively be vitiated inasmuch as unions will not be able to ensure that the attorneys engaged and necessary to the prosecution of such claims will be paid in accordance with the fee agreements entered into by the unions on behalf of the unions' employees. Motion at 2.

      The Unions argue that the Authority's decision is inconsistent with the Arbitrator's direction that the contractual fees were to be segregated and paid at the time of the distribution of the award, which direction the Unions maintain was not vacated or modified by the Authority. The Unions further argue that the Authority's modification leaves employees with no practical means of prosecuting EDP grievances. The Unions also argue that the indirect consequence of the Authority's decision is to unfairly put the Unions' attorneys in a position that is adverse to their clients. In addition, the Unions submit that there are other means besides § 550.311 for authorizing payment of the fees awarded by the Arbitrator. The Unions assert that the Authority erroneously views the funds as federal funds and that 5 U.S.C. § 5520a, which pertains to garnishment of pay, authorizes withholding of the contractual fees from the backpay award and paying the fees to the Unions' attorneys. The Unions maintain that a third of the backpay represents money that belongs to the Unions' attorneys and not the employees.

IV.     Analysis and Conclusions

      The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 56 FLRA 935 (2000) (IRS). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist: (1) where an intervening court decision or change in the law affected dispositive issues; (2) where evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding, and (4) where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 [ v57 p292 ] (1995) (Scott AFB). The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See IRS, 56 FLRA at 936.

      We conclude that none of the circumstances asserted by the Unions meets the standards of Scott AFB. We note that the Unions have misconceived the Authority's decision in claiming that the Arbitrator's order of segregation and distribution was unaffected by the Authority's modification of the award. After the modification of the award, backpay could be segregated and distributed only in accordance with the award, as modified by the Authority. We also note that the Unions have not even argued that the Authority misinterpreted 5 C.F.R. part 550, subpart C in modifying the award. Instead, the Unions assert that the decision will have adverse effects. Such assertions fail to establish extraordinary circumstances warranting reconsideration of the Authority's decision.

      The only allegations of errors by the Authority presented by the Unions are that the Authority erred by determining that the backpay awarded by the Arbitrator constituted federal funds and that 5 C.F.R. § 550.311 was the only source of authorization for the disbursement of federal funds as ordered by the Arbitrator. The Unions claim that the funds belonged to the Unions' attorneys and that the garnishment provisions of 5 U.S.C. § 5520a authorize disbursement to the Unions' attorneys. In our view, these allegations simply attempt to relitigate the conclusions of the Authority in 56 FLRA 1057 and provide no basis for granting reconsideration. See id. Furthermore, we have examined the garnishment provisions of § 5520a. These provisions provide for withholding pay from employees only pursuant to legal process issued by a court of competent jurisdiction or an official pursuant to authorization by law or court order. We fail to see how such provisions apply to the disbursement ordered by the Arbitrator so as to warrant reconsideration of the Authority's decision.

      Accordingly, we deny the Unions' motion.

V.     Order

      The Unions' motion for reconsideration is denied.



Footnote # 1 for 57 FLRA No. 61

   Member Pope did not participate in this decision or in 56 FLRA 1057.


Footnote # 2 for 57 FLRA No. 61

   The Unions' motion to file a supplemental memorandum of law in support of their motion for reconsideration was denied by