United States, Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association (Union)

[ v58 p389 ]

58 FLRA No. 94

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
(Union)

0-AR-3432
(58 FLRA 175 (2002))

_____

ORDER
DENYING MOTION FOR RECONSIDERATION

March 27, 2003

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, 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 United States Dep't of Transp. FAA, 58 FLRA 175 (2002). [n1] The Agency did not file an opposition to the motion.

      For the following reasons, we deny the Union's motion.

II.     Authority Decision in 58 FLRA 175

      In 58 FLRA 175, the Arbitrator found that the Agency violated an Agency regulation and the parties' collective bargaining agreement by combining areas of operation under one supervisor on the midnight shift in some of its air route centers instead of using Controllers-in-Charge (CICs) to provide supervision in each operational area. Among other remedies, the Arbitrator ordered the Agency to designate a CIC in each operational area during the midnight shift when a supervisor is not available.

      The Agency excepted to this aspect of the award on the ground that it affected management's right to determine its organization under § 7106(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute). In its opposition, the Union argued that the award did not affect that right. 58 FLRA at 177. The Authority found that by precluding the Agency from combining operational areas under one supervisor on the midnight shift, the award affected management's right to determine its organization under § 7106(a)(1) because it specified the nature and scope of supervisory relationships, or lines of authority, on that shift. Id. at 178. The Authority found that the FAA regulation relied on by the Arbitrator did not constitute an external limitation on the exercise of management's rights that is enforceable in arbitration. Id. The Authority also found that there was nothing in the record from which to conclude that the provisions of the parties' collective bargaining agreement and MOU constituted enforceable limitations on the exercise of management's rights under § 7106(b) of the Statute. Id. at 179. Consequently, the Authority set aside the award.

III.     Motion for Reconsideration

      The Union contends that the Authority erred in considering the Agency's exception that the award affected management's right to determine its organization. According to the Union, the Agency never presented that argument to the Arbitrator and, thus, under § 2429.5 of the Authority's Regulations, the Authority should not have considered the argument. The Union contends that the Arbitrator's award therefore should be sustained.

      The Union also acknowledges that its disagreement with the Authority's conclusion does not warrant reconsideration. However, the Union argues that, under the circumstances, the Authority should withdraw its conclusion as to the effect of the award on management's right to determine its organization and remand the case to the Arbitrator for his initial consideration of the issue on a proper record.

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, IRS, 57 FLRA 592, 593 (2001) (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 [ v58 p390 ] 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 (1995). The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See IRS, 57 FLRA at 594.

      In addition, the Authority has refused to consider, in resolving a request for reconsideration, issues that were not raised in its review of an award upon a party's exceptions. See United States Dep't of Health and Human Services, Office of the Asst. Sec'y. For Mgmt. and Budget, Office of Grant and Contract Fin. Mgmt. Div. of Audit Resolution, 51 FLRA 982, 984 (1996); EEOC, 49 FLRA 7, 11 (1994); United States Dep't of Interior, Bu. of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams, 42 FLRA 76, 77 n.* (1991); United States Dep't of Health and Human Services, SSA, Kansas City, Mo., 38 FLRA 1480, 1483-84 (1991). The Union claims that in considering the Agency's exception under § 7106(a)(1), the Authority erred by failing to comply with § 2429.5 of its Regulations, because that argument had not been raised before the Arbitrator. The Union makes that claim, notwithstanding the fact that, in its opposition to the Agency's exception it directly addressed the Agency's contention and