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61 FLRA No. 50
SOCIAL SECURITY ADMINISTRATION
ST. PAUL, MINNESOTA
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 220
(Union)
0-AR-3922
(61 FLRA 92 (2005))
_____
ORDER DENYING MOTION
FOR RECONSIDERATION
September 22, 2005
_____
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 to reconsider the Authority's decision in Social Security Administration, St. Paul, Minn., 61 FLRA 92 (2005) (Member Pope dissenting) (SSA, Minn.). The Agency did not file an opposition.
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, 84 (1995) (Scott AFB). In Scott AFB, the Authority 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.
The Union alleges that the Authority erred in concluding that the Arbitrator was required under the parties' agreement to uphold the Agency's 2-day suspension of the grievant and in concluding that the Arbitrator's interpretation of the agreement as precluding the Agency from imposing that penalty was in manifest disregard of the agreement.
The Union claims that the Authority's decision misinterprets the Federal Service Labor-Management Relations Statute (the Statute). In this regard, the Union asserts that "[t]o aver that an Agency's characterization of an offense as `serious' precludes arbitral scrutiny is a clear misconstruction of the Statute and the negotiated agreement." Motion at 4.
The Union also claims that the Authority's decision violated the grievant's constitutional rights. In this regard, the Union asserts again that "[t]he Authority has decided that . . . an Arbitrator must rule in favor of the Agency if it deems an offense serious, thus making the arbitration process meaningless." Id. at 5 (emphasis in original). The Union contends that the Authority's decision gave the Agency "unfettered authority" and the Authority thereby "engaged in legislati[on]" by changing the law, in violation of the constitutional principle of the separation of powers. Id. According to the Union, the Authority's decision removed the Union's ability to redress grievances under the Statute, in violation of the grievant's First and Fifth Amendment rights. Id.
For the following reasons, we conclude that the Union's motion fails to establish extraordinary circumstances warranting reconsideration of the Authority's decision in SSA, Minn.
The Union's claim that the Authority's decision misconstrued the Statute is premised on an argument that the Authority erred as a matter of law when it failed to defer to the Arbitrator's interpretation of the parties' agreement and instead found that the Arbitrator's award failed to draw its essence from the agreement. However, no law required the Authority to defer to the Arbitrator's interpretation of the agreement. Under well-established precedent, the Authority defers to an arbitrator's interpretation of an agreement except where the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
Contrary to the Union's assertion, the Authority did not uphold the 2-day suspension of the grievant based on the Agency's characterization of the grievant's [ v61 p257 ] offenses as "serious." Rather, the Authority stated that the Arbitrator had found that the grievant's actions were serious. As the Authority set forth in SSA, Minn., the Arbitrator specifically found in his award that the grievant's actions were "serious" and were, in both parties' view, "among the most serious in the system." 61 FLRA at 94 (quoting Award at 2, 1). The Authority further stated that "[n]otwithstanding" the Arbitrator's findings "and the Agency's right under Article 23 to impose more severe discipline where the severe nature of [an employee's] behavior warrants such discipline, the Arbitrator imposed the least serious form of discipline possible provided in Article 23." Id. Therefore, as the Union has misconstrued the basis of the Authority's decision, we conclude that the Union's claim fails to establish that extraordinary circumstances exist to justify reconsideration of SSA, Minn.
The Union's constitutional claims are premised on the argument that the Authority improperly engaged in legislative action in violation of the Constitution and the grievant's First and Fifth Amendment rights. The Union does not cite any legal support for its constitutional claims. Rather, the Union's claims are again based on its contention that the Authority's decision held that an arbitrator must rule in favor of the Agency if the Agency deems an offense serious. However, as noted above, there is no merit to this assertion. In reviewing the exception to the award, the Authority applied its precedent. The Authority did not engage in impermissible legislative action and did not violate any constitutional provisions. Therefore, we conclude that the Union's claims fail to establish that extraordinary circumstances exist to justify reconsideration of SSA, Minn.
Accordingly, we deny the motion for reconsideration.
Footnote * for 61 FLRA No. 50 - Authority's Decision
Member Pope reaffirms her dissent in 61 FLRA 92 (2005). However, in light of the majority's decision in that case, Member Pope joins in denying the motion for reconsideration.