United States, Department of Transportation, National Highway Traffic Safety, Administration (Agency) and American Federation of Government Employees, Local 3313 (Union)

[ v59 p85 ]

59 FLRA No. 15

UNITED STATES
DEPARTMENT OF TRANSPORTATION
NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3313
(Union)

0-AR-3416
(58 FLRA 333 (2003))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

August 29, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in 58 FLRA 333 (2003). The Agency filed an opposition to the Union's motion.

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995) (Scott AFB). In Scott AFB, theAuthority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that the Authority erred in its remedial order, process, conclusion of law, or factual finding. See id. at 85-87. The party seeking reconsideration of a decision of the Authority has a heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See id. at 85.

      In 58 FLRA 333, the Arbitrator determined that the Agency's reassignment of the grievant constituted a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) because the reassignment violated merit principles set forth in 5 U.S.C. § 2301. We found the award deficient on the basis that the Arbitrator did not find a violation of any law, rule, or regulation that implements or directly concerns those principles, as required by § 2302(b)(12). The Union contends we erred. The Union claims that the Department of Justice's (DOJ's) policy relating to Giglio v. United States, 405 U.S. 150 (1972) (Giglio Policy), constitutes the necessary rule implementing or directly concerning merit system principles. In addition, the Union claims that the issue of whether the Arbitrator found a violation of a law, rule, or regulation implementing or directly concerning merit system principles was not sufficiently raised by the Agency as an exception and had been waived by not having been raised to the Arbitrator.

      We conclude that the Union fails to meet the heavy burden of establishing that extraordinary circumstances exist to justify reconsideration of 58 FLRA 333. The Union fails to establish that any of the situations identified as constituting extraordinary circumstances are present. As such, the Union's allegations provide no basis for granting reconsideration.

      Specifically, the Union fails to establish that DOJ's Giglio Policy constitutes a rule or regulation implementing or directly concerning merit system principles, within the meaning of § 2302(b)(12). As noted by the Agency, the policy expressly provides that it does not create or confer any rights, privileges or benefits to witnesses and is not intended to have the force of law. Agency Opposition at 6, citing Giglio Policy at 1.

      The Union also fails to establish that the Agency waived an argument. The Agency asserted in its exceptions