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

[ v61 p657 ]

61 FLRA No. 131

OFFICE OF PERSONNEL MANAGEMENT
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 32
(Union)

0-AR-3921
(61 FLRA 358 (2005))

_____

ORDER DENYING
MOTION FOR RECONSIDERATION

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 that contrary to the finding of the Authority, the Arbitrator awarded backpay as a remedy for the contract violations. The Agency contends that there is no error in any of the Authority's findings or conclusions.

      We conclude that the Union has failed to meet the heavy burden of establishing that extraordinary circumstances exist to justify reconsideration of OPM. The Union claims, contrary to the Authority's findings and conclusions, that the Arbitrator awarded backpay as a remedy for the contract violations and that the record supports the Arbitrator's finding that the grievant is an [ v61 p658 ] individual with a disability. These claims fail to establish that the Authority erred in its conclusions of law or its factual findings that the Arbitrator's summary findings failed to establish that the grievant is an individual with a disability and that the Arbitrator expressly based the backpay remedy on the Agency's failure to reasonably accommodate the grievant's disability. Accordingly, we deny the Union's motion. See Library of Congress, 60 FLRA at 941; DOJ, 60 FLRA at 89.



Footnote # 1 for 61 FLRA No. 131 - Authority's Decision

   Mem