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60 FLRA No. 21
UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
METROPOLITAN DETENTION CENTER
GUAYNABO, PUERTO RICO
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCALS
LOCAL 4052
(Union)
0-AR-3701
(59 FLRA 787 (2004))
_____
ORDER DENYING MOTION FOR
RECONSIDERATION
July 15, 2004
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in United States Department of Justice, Federal Bureau of Prisons, Metropolitan Detention Center, Guaynabo, Puerto Rico, 59 FLRA 787 (2004) (DOJ).
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, and we deny the Agency's motion.
II. Decision in DOJ, 59 FLRA 787
As relevant here, in DOJ, the Arbitrator granted a grievance alleging that the Agency violated the parties' collective bargaining agreement (CBA) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), by the actions of a supervisor who engaged in acts of sexual harassment against female employees, and in particular a certain female correctional officer. The Arbitrator remanded the remedies issues to the parties and retained jurisdiction in the event of any dispute.
In the final award, the Arbitrator sustained the grievance and ordered remedies for the female employee including: various protective measures, and restrictions on the supervisor's interaction with the employee, i.e., the requirements that the supervisor could not supervise the employee under any circumstances and that he had to remain more than 10 feet from her at all time and not speak to her except with regard to work-related matters.
The Agency filed exceptions challenging the restrictions on the supervisor's interaction with the employee. The Agency asserted that these remedies were contrary to law because they excessively interfered with management's right to assign work under § 7106(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute). The Agency cited United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP), and argued that the award violated both prongs of the two-part framework for determining whether an award violates management's rights set forth in BEP.
The Authority determined that this case appeared to be the first since the issuance of BEP in which an agency has specifically challenged, under prong II of BEP, a remedy provided for by an applicable law, specifically, Title VII. The Authority held that when an arbitrator issues a remedy for a violation of an applicable law such as Title VII, which provides for a remedy that affects management's rights under § 7106(a)(2) of the Statute, it is not appropriate to apply prong II of BEP to assess whether the remedy is legal. Rather, the appropriate inquiry is whether the remedy is provided for by the relevant applicable law. Applying this approach, the Authority found that, as Title VII provided for the challenged remedies on a finding of sexual harassment in violation of Title VII, the contested remedies were not contrary to law.
III. Motion for Reconsideration
The Agency asserts that in its initial exceptions to the award it "argu[ed] that [the contested] remedies violated its statutory management right to determine internal security . . . ." Motion at 2. According to the Agency, the Authority found that "if the remedies at issue are appropriate under Title VII, it does not matter whether they would significantly and perhaps disastrously affect the Agency's right to determine internal security [under § 7106 of the Statute]." Id. at 3. The Agency asserts that the Authority's decision is "contrary [ v60 p89 ] to public policy and does not effectuate the purposes of the Statute." Id. at 2.
Citing United States Dep't of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Lompoc, Cal., 58 FLRA 301, 302-03 (2003), the Agency asserts that the Authority's decision "bypass[es] its own statutory mandate to respect [§] 7106(a) and [the Authority] is acting in a manner contrary to public policy[]" decisions "reached by Congress in codifying [F]ederal-sector management rights at [§] 7106." Motion at 3 and 4-5. In support, the Agency cites 18 U.S.C. §§ 4001 and 4042. [n1] The Agency also contends that "ignoring the risks posed by the . . . remedial orders does not effectuate the overarching purpose of the Statute at [§] 7101(b) to safeguard the operation of an effective and efficient government." Id. at 5.
The Agency asserts that the "absolute prohibitions on supervision or approaching within ten feet of the grievant could readily lead in the correctional environment to situations in which inmates, correctional staff, or the grievant . . . are placed at risk by the inability to act quickly to deal with emergency situations." Id. at 3. Therefore, the Agency requests the Authority to reconsider its decision and "modify these prohibitions so that potentially dangerous and unacceptable consequences may be avoided." Id.
The Agency notes that it "is not arguing that remedies properly available under Title VII can never be imposed in the collective bargaining context if they affect management rights." Id. According to the Agency, it is "appropriate for a meaningful Title VII remedy to co-exist here with management's statutory right to make internal security determinations." Id. The Agency asserts that a limitation, "permitting exceptions based on emergencies or other work-related exigent circumstances in the correctional environment, would significantly advance Title VII remedial interests while at the same time recognizing management's . . . right to determine internal security." Id. at 6. The Agency requests that the remedial order be modified in this manner.
IV. Analysis and Conclusions
The Agency's Motion for Reconsideration Fails to Establish that Extraordinary Circumstances Exist within the Meaning of § 2429.17
Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. 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., Wash., 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. These include situations: (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 (1995). 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.
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) (HHS); 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 Agency contends that the Authority's decision is contrary to public policy because the decision ignores the Agency's right to determine its internal security practices under § 7106(a)(1) of the Statute. The Agency's contention is construed as a claim that the Authority failed to consider its argument that the award violates its right to determine its internal security practices [ v60 p90 ] under § 7106(a)(1) of the Statute, and by doing so violates public policy decisions reached by Congress in enacting § 7106(a) of the Statute.
The Agency has failed to meet the heavy burden of establishing that extraordinary circumstances exist to justify reconsideration of DOJ. Although the Agency claims that it raised in its exceptions to the award an internal security argument under § 7106(a)(1) of the Statute, nowhere in the exceptions did the Agency assert that the award was contrary to § 7106(a)(1). The Agency did assert that the award was contrary to law because it excessively interfered with "management's rights under [§] 7106[,]" however, the Agency's argument only focused on management's "right to assign work" under § 7106(a)(2)(B) of the Statute. Exceptions at 4. In this regard, the Agency stated:
[t]he question presented . . . is whether the award's attempt to enforce the Title VII requirements . . . constitutes an appropriate arrangement within the meaning of § 7106(a)(b)(3), or whether it excessively interferes with the exercise of a management right. [Citation omitted]. The Agency respectfully submits that the award does excessively interfere with management's right to assign work . . . .
Id. Further, throughout the remainder of the exceptions, the Agency continued to argue that the award affected its "right to assign work" under § 7106(a)(2)(B). Id. at 4 and 5. Thus, in our view the record shows that the Agency's arguments concerned the right to assign work and not the right to determine its internal security practices under § 7106(a)(1). [n2] Because the Agency had the opportunity to raise the internal security argument in its exceptions in DOJ but did not do so then, its assertion that the Authority ignored its right to determine internal security practices and thereby violated public policy provides no basis for reconsideration of DOJ because it does not constitute extraordinary circumstances. See, e.g., HHS, 51 FLRA at 984 and cases cited therein.
As the Agency's additional assertion, that the Authority's decision ignores the risks posed by the remedial order and, therefore, does not effectuate the purpose of the Statute set forth in § 7101(b) to safeguard the operation of "an effective and efficient Government" also is based on its claim that the Authority ignored its internal security argument, the contention provides no basis for reconsideration of the decision in DOJ. As stated above, the Agency did not raise the internal security argument in its exceptions to the Authority.
Accordingly, the Agency has not established extraordinary circumstances to warrant reconsideration of DOJ.
V. Order
The Agency's motion for reconsideration is denied.
Footnote # 1 for 60 FLRA No. 21 - Authority's Decision
18 U.S.C. § 4001 provides, among other things, that the control and management of Federal penal and correctional institutions is vested in the Attorney General, who is authorized to promulgate rules for the government thereof and to appoint officers and employees in accordance with the civil service laws; 18 U.S.C. § 4042 sets forth the duties of the Bureau of Prisons.
Footnote # 2 for 60 FLRA No. 21 - Authority's Decision
We note that in its exceptions the Agency cited United States Dep't of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Okla., 58 FLRA 109 (2002), where the Authority found that the award excessively interfered with management's right to determine its internal security practices under § 7106(a)(1) of the Statute and to assign work under § 7106(a)(2)(B) of the Statute. However, the Agency relied on this case to support its argument that the award imposed a "similarly excessive burden on management's right to assign work." Exceptions at 6. Similarly, the Agency's citation to Bell v. Wolfish, 441 U.S. 520 (1979) was noted in reference to its right to assign work argument. See id. at 6 n.2.