Library of Congress (Agency) and Congressional Research Employees Association, IFPTE, Local 75 (Union)

[ v60 p939 ]

60 FLRA No. 169     

LIBRARY OF CONGRESS
(Agency)

and

CONGRESSIONAL RESEARCH
EMPLOYEES ASSOCIATION
IFPTE, LOCAL 75
(Union)

0-AR-3835
(60 FLRA 715 (2005))

_____

ORDER DENYING
MOTION FOR RECONSIDERATION

May 20, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in Library of Congress, 60 FLRA 715 (2005) (Member Pope dissenting) (Library of Congress). The Agency filed an opposition to the Union's motion. [n2] 

      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 reasons that follow, we find that the Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.

II.     Decision in 60 FLRA 715

      In Library of Congress, the Arbitrator sustained a grievance alleging that the Agency violated an agreement negotiated by the parties called the "SL Agreement" by refusing to provide the grievant and similarly situated employees with performance awards if they left the Agency after the appraisal period, which coincided with the calendar year. [n3] 

      As relevant here, the Arbitrator rejected the Agency's argument that a performance award is required only if an employee is in pay status at the time that performance awards are scheduled to be executed (on or after May 5 of each year, according to the SL Agreement). Rather, the Arbitrator determined that the SL Agreement required only that an employee be employed "as of" December 31 of the appraisal year. Library of Congress, 60 FLRA at 716. In this regard, the Arbitrator stated that the "as of" language of the SL Agreement implied "that a member of the unit may not in fact be employed after December 31, yet still will be deserving of the rights granted by the SL Agreement if he or she parts service before May 5th of the subsequent year." Id. The Arbitrator ordered the Agency to: "(1) conduct a performance appraisal of the employee for [the relevant calendar year] and give him any consequential performance award to which he was entitled; and (2) ensure that all future performance awards under the SL Agreement's performance appraisal provisions are given to the awardee as long as he or she was in pay status during the applicable calendar year as of December 31 . . . ." Id.

      In its exceptions, the Agency argued that the award failed to draw its essence from the parties' agreement because the applicable section of the SL Agreement "is triggered only when employees are at the statutory pay cap." Id. at 717 (quoting Exception at 5). In this regard, the Agency argued that by requiring the Agency "to pay a performance award in lieu of a performance-based pay adjustment to a former employee who, at the time the awards are paid, is no longer at the salary cap (as non-employees have no salary)[,]" the award was contrary to the plain wording of the SL Agreement. Id. In addition, the Agency asserted that the award was inequitable and unconnected to the wording of the SL Agreement because the award treats senior level employees who are at the statutory pay cap more favorably than those who are not.

      The Authority found that the award did not represent a plausible interpretation of the SL Agreement. The Authority found that, by its plain terms, the SL Agreement addresses the circumstance under which a senior level employee is entitled to a performance-based [ v60 p940 ] pay adjustment, but the pay adjustment would exceed the statutory limit on pay. The Authority further stated:

In order for an employee to have his or her pay "adjusted," it is apparent that the employee must be receiving pay. It is undisputed that "Senior Level employees' performance-based pay adjustments . . . are effected the first day of or after May 5 of each year[.]" Section 6(C)(4)(b) of the SL Agreement. Thus, an employee who retires on December 31 is not receiving pay in May of the following year when pay adjustments are determined, and accordingly has no pay that can be adjusted. Moreover, an employee who is not receiving any pay at the time that a pay adjustment is effected does not have any basic rate of pay, and the Agency has no pay rate from which to measure how much of "the performance-based pay adjustment would take the Senior Level employee above the salary limit established by law" so that, under Section 6(C)(3)(c), the excess would "be given as a performance award rather than as an increase to the base." Consequently, the Arbitrator's requirement that the Agency grant performance-based cash awards has no basis in the agreement.
For these reasons, the Arbitrator's award does not represent a plausible interpretation of the agreement. Rather, as asserted by the Agency, the Arbitrator has effectively rewritten the SL Agreement in violation of its plain wording by requiring the Agency "to pay a performance award in lieu of a performance-based pay adjustment to a former employee who, at the time the awards are paid, is no longer at the salary cap (as non-employees have no salary)." Exceptions at 5. Such a requirement is directly at odds with the requirement of Section 6(C)(3)(c) of the SL Agreement for paying a performance-based cash award, "which is triggered only when employees are at the statutory pay cap."

Id. at 717-18.

      Accordingly, the Authority "set aside the award to the extent that it require[d] the Agency to give the grievant and similarly situated employees a performance-based pay adjustment in the form of a performance award rather than as an increase to the base." Id. at 718.

III.     Motion for Reconsideration

      The Union contends that extraordinary circumstances are established for reconsideration because the decision "relied on a non-fact that is crucial to its ruling and . . . its ruling violates numerous provision[s] of governing law and regulation." Motion at 2.

      First, the Union asserts that the Authority relied upon the "critical assumption" that the May 5 effective date in the SL Agreement "is a substantive provision that establishes that it was the intent of the parties that [senior level employees] had to be in active pay status on May 5, when pay adjustments or performance awards went into effect." Id. at 3 (emphasis omitted). In this regard, the Union argues that the May 5 date was implemented as "an accommodation for performance evaluation and pay efficiency purposes[,]" and "provides no substantive support for the [Agency's] contention that a [senior level employee] had to be in pay status on May 5." Id. at 4.

      In addition, citing 5 U.S.C. § 4501 through § 4506, the Union contends that the decision is contrary to "longstanding personnel laws, rules, and regulations" that establish that agencies are authorized to give cash awards for performance which may be paid notwithstanding separation from service as long as the award is for service or accomplishments performed while he or she is employed by the agency. Id. at 5.

      Further, the Union argues that the decision violates the Federal Employees Pay Comparability Act of 1990 and related statutes because it will "not only have the effect of undermining congressional efforts to establish a pay-for-performance program at the Library, but will cast doubts on similar efforts in other agencies." Id. at 7.

           Finally, the Union asserts that the decision violates § 7122(a)(2) of the Federal Service Labor-Management Relations Statute and departs from Authority precedent by failing to give appropriate deference to the Arbitrator's construction of the parties' agreement. In this regard, the Union claims that the Arbitrator's award represents a plausible interpretation of the SL Agreement.

IV.     Agency's Opposition

      The Agency contends that the Union has not established that extraordinary circumstances exist to justify granting the motion for reconsideration.

      The Agency argues that the May 5 effective date for pay increases was not crucial to the Authority's decision. In this regard, the Agency asserts that "[i]t simply does not matter whether the senior level staff members' pay increases took place on May 5th, or some other date in May (as they have in other years, depending on the first day of the first pay period in May), or on a date in [ v60 p941 ] April, March, February or January[,]" because the result would be the same. Opposition at 3.

      The Agency also asserts that the Union's arguments under the Federal Employees Pay Comparability Act of 1990 and related statutes do not apply, because those statutes concern a different type of payment. The Agency argues that it "acknowledged that senior level staff also could receive cash awards in the nature of performance bonuses[,]" and that it is only the payments in lieu of an increase to the salary that are at issue in this case. Id. at 4.

V.      Analysis and Conclusions

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. A party seeking reconsideration bears the "heavy burden" of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, 54 FLRA 9, 12 (1998) (BIA). The Authority has found extraordinary circumstances to exist in the following situations:

(1)     when an intervening court decision or change in the law affected dispositive issues;
(2)     when evidence, information, or issues crucial to the decision had not been presented to the Authority;
(3)     when the Authority erred in its remedial order, process, conclusion of law, or factual finding; and
(4)     when 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) (Scott AFB). Mere disagreement with the Authority's decision or attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 60 FLRA 88, 89 (2004).

      The Union first argues that extraordinary circumstances exist because the Authority erred by relying on the "critical assumption" that the May 5 date in the SL Agreement established that it was the intent of the parties that an employee had to be in active pay status on May 5 in order to qualify for a performance-based cash award in lieu of a performance-based pay adjustment. Motion at 3.

      However, the Union has not established that the Authority erred in a factual finding. The Union argues that the Authority erred in finding that the May 5 date was a "substantive provision." Id. at 3. However, the Authority's conclusion was not based on the significance of the specific effective date. The Authority found that an employee who is not in pay status on the date that performance-based pay adjustments become effective is not entitled to the adjustment. Even assuming, as the Union argues, that the May 5 date was an "accommodation" for evaluation and pay purposes, the Union does not dispute that performance-based pay adjustments are effected on May 5, or that an employee who retires on December 31 would not be in pay status when the adjustments are effected. Id. at 4. Accordingly, the Union has failed to establish that the Authority erred in a factual finding. See BIA, 54 FLRA at 13.

      The Union also claims that extraordinary circumstances exist to justify reconsideration because the decision is contrary to 5 U.S.C. § 4501 through § 4506 regarding cash awards for performance. However, an identical argument was rejected by the Arbitrator because § 4501 through § 4506 "deal with cash awards" and do not provide guidance in the interpretation of the parties' agreement. Library of Congress, 60 FLRA at 716 n.5. As the Union did not timely except to the Arbitrator's finding in this regard, we will not consider it here. The Authority has refused to consider, in resolving a request for reconsideration, arguments that were not raised in its review of an award. See, e.g., United States Dep't of Transp., Fed. Aviation Admin., 58 FLRA 389, 390 (2003).

      In addition, the Union's contention that the decision will have the effect of undermining efforts to establish a pay-for-performance program at the Agency and will cast doubts on similar efforts by other agencies does not present a basis upon which the Authority has found extraordinary circumstances to exist under the standard articulated in Scott AFB as set forth above.

      Finally, the Union's remaining argument, that the Authority failed to grant appropriate deference to the Arbitrator's construction of the parties' SL Agreement in finding that the Arbitrator's interpretation of the SL Agreement was not plausible, is an attempt to re-litigate the essence claim that was raised by the Union and decided by the Authority in Library of Congress, 60 FLRA at 717-18. Therefore, this argument does not establish that extraordinary circumstances exist to warrant reconsideration.

VI.     Order

      The Union's motion for reconsideration is denied. [ v60 p942 ]


APPENDIX

Section 6. Basic Pay and Other Compensation

      . . . .

C. Adjustments to Basic Pay After Initial Appointment

. . . .

(3) Adjustments to Basic Pay Based on Performance

      (a) Adjustments to Senior Level basic pay, other than those driven by statute, will be based on performance. Performance based pay adjustments are made to the basic rate of pay.

      (b) Each adjectival rating carries with it a standard dollar value (or percentage value), determined by the Librarian on an annual basis and applied consistently to all Senior Level employees. The performance-based pay adjustment is determined by totaling the dollar values associated with those ratings. Changing fiscal conditions necessitate some flexibility in proposing salary adjustments based upon performance. The great majority of adjustments will fall into the two or three percent range, although extraordinary performance could result in an adjustment as high as ten percent.

      (c) If the performance-based pay adjustment would take the Senior Level employee above the salary limit established by law, then the amount of the proposed performance adjustment which exceeds the limit will be given as a performance award rather than as an increase to the base.

      (d) On an annual basis, management will project the anticipated total dollar amount of Senior Level performance-based increases and will include that dollar projection in te budget preparation and execution process.

      (e) The Library, on or about the beginning of each calendar year (beginning in 1996 and thereafter), will announce the formula for making pay determinations for performance for the previous calendar year. The announcement shall be issued prior to the submission of performance accomplishments by covered employees. This information will demonstrate, on an annual basis, the link between particular levels of performance and pay determinations.

. . . .

(4) Responsibility

      . . . .

      (b) The office of the Director for Human Resources shall be responsible for ensuring that Senior Level employees' performance-based pay adjustments, in accordance with the Librarian's determinations, are effected the first day of the first pay period on or after May 5 of each year, the anniversary date of the Library's conversion to the Senior Level system.

. . . .

D. Other Compensation

      (1) Performance Awards. At the discretion of the Librarian or designee, Senior Level employees may receive performance-based awards not to exceed twenty percent of basic pay. Senior Level employees are eligible both for honorary performance awards and for cash awards based on outstanding achievement.

Library of Congress, 60 FLRA at 718-19 (citation omitted).



Footnote # 1 for 60 FLRA No. 169 - Authority's Decision

   Member Pope reaffirms her dissent in 60 FLRA 715 (2005). However, in light of the majority's decision in that case, Member Pope joins in denying the motion for reconsideration.


Footnote # 2 for 60 FLRA No. 169 - Authority's Decision

   The Agency requested permission to file an opposition to the Union's motion, pursuant to § 2429.26 of the Authority's Regulations. As the Agency's request is unopposed and as Authority precedent sup