Office of Personnel Management (Agency) and American Federation of Government Employees, Local 32 (Union)

[ v61 p657 ]

61 FLRA No. 131




(61 FLRA 358 (2005))



August 17, 2006


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member [n1] 

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in Office of Personnel Management, 61 FLRA 358 (2005) (Member Pope, dissenting in part) (OPM). The Agency has requested permission to file an opposition to the Union's motion and has included the opposition with its request. [n2] 

      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 identified a limited number of situations in which extraordinary circumstances have been found to exist. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995). These include situations where the moving party has established that the Authority erred in its conclusions of law or factual findings. See id. at 86-87. 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. Attempts to relitigate conclusions and findings reached by the Authority in the decision for which reconsideration is sought 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) (DOJ); accord Library of Congress, 60 FLRA 939, 941 (2005).

      In OPM, the grievant had been reprimanded for failing to follow leave procedures and for being absent without leave and had been placed on leave restriction. The Arbitrator found that the reprimand and leave restriction violated the parties' collective bargaining agreement and that the Agency discriminated against the grievant on the basis of disability. The Arbitrator ordered that the reprimand and the leave restriction be expunged and that the grievant be made whole with backpay and interest, compensatory damages, and attorney fees. The Authority determined that the Arbitrator's finding of disability discrimination and the make-whole remedy of backpay and interest, compensatory damages, and attorney fees were deficient.

      In assessing the Arbitrator's finding of discrimination, the Authority concluded that the Arbitrator's summary findings failed to establish that the grievant is an individual with a disability and that the record did not support such a finding. In view of this conclusion, the Authority also found deficient the Arbitrator's make-whole remedy of backpay and interest, compensatory damages, and attorney fees. The Authority specifically struck the award of backpay and interest because the Authority found that the Arbitrator expressly based it on the Agency's failure to reasonably accommodate the grievant's disability.

      In contending that reconsideration is warranted, the Union asserts that contrary to the conclusion of the Authority, the record supports the Arbitrator's finding that the grievant is an individual with a disability. The Union also asserts th