United States Department of the Army, Corps of Engineers, Portland District (Agency) and United Power Trades Organization (Union)

[ v62 p97 ]

62 FLRA No. 26

UNITED STATES
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
PORTLAND DISTRICT
(Agency)

and

UNITED POWER TRADES
ORGANIZATION
(Union)

0-AR-3961
(61 FLRA 599 (2006))

_____

ORDER DENYING MOTION FOR
RECONSIDERATION

May 31, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I.      Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in United States Dep't of the Army, Corps of Engineers, Portland District, 61 FLRA 599 (2006) (Army, Corps of Engineers). The Agency filed a response to the Union's motion. The Union filed an additional motion for reconsideration on August 11, 2006, and the Agency also filed a response to that submission.

      The Authority's Regulations permit a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. 5 C.F.R. § 2429.17. For the reasons below, we find that the Union has failed to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Union's motion for reconsideration.

II.      Decision in Army, Corps of Engineers,
61 FLRA 599

      In Army, Corps of Engineers, 61 FLRA at 599, the issue involved whether the Agency violated the parties' Hydropower Trainee Program Agreement by not requiring a student in the Student Career Experience Program (SCEP) to pass an OPM standard test before employing the student in the Power Plant Training Program. In setting forth the Arbitrator's resolution of the above issue, the Authority noted the following:

     The Arbitrator found that under the [parties'] MOU, applicants for the [hydropower] training program are required to meet the "Single-Agency Qualification Standard." [Award] at 13. The Arbitrator determined that in order to meet the Single-Agency Qualification Standard for the training program, a candidate must take and pass the Office of Personnel Management (OPM) Trades Apprenticeship Examination. Id. at 5, 15. However, the Arbitrator also noted that under OPM regulations, SCEP participants are not required to pass such an exam in order to qualify for these hydropower trainee positions. See 5 C.F.R. § 213.3202(b)(15). Accordingly, the Arbitrator found the MOU inconsistent with OPM regulations to the extent that the MOU requires testing of SCEP participants.
     In addressing this inconsistency, the Arbitrator fashioned an award that, in his view, required the Agency to comply with the MOU without violating OPM regulations. More particularly, the Arbitrator found that the "Agency can avoid creating a conflict between the [MOU] and the CFR [OPM regulations] simply by selecting . . . trainees from an `appropriate source' other than the SCEP." Award at 14. He further determined that where the only appropriate source available to fill a vacancy in the training program was a SCEP participant, then the Agency could fill its trainee position with the SCEP participant without requiring the SCEP applicant to pass OPM's test. Id. The Arbitrator concluded by stating that "the Agency has failed to prove it is precluded in all cases from following the terms of the [MOU] by 5 CFR 213.3202(b)(15)." Id. In reaching that conclusion, the Arbitrator noted specifically that the Agency "did not argue the application or effect of 5 USC § 7106(a)(2)(C)(ii)." Id. n.10.

Army, Corps of Engineers, 61 FLRA at 600.

      In exceptions, the Agency raised a number of issues, including whether the award was consistent with 5 C.F.R. § 213.3202(b)(11). In resolving this exception, the Authority noted that the Agency had not been delegated specific authority by the Office of Personnel Management to fashion a system that differed from the testing requirements for SCEP employees under 5 C.F.R. § 213.3202(b)(15). Id. at 602. Moreover, the Authority found that the award conflicted with 5 C.F.R. [ v62 p98 ] § 213.3202(b)(11) because "the award dictates that the Agency must hire from any other appropriate source before considering SCEP candidates." Id. The Authority further stated, "[a]s the OPM regulation places SCEP candidates on an equal footing with other appropriate source candidates, the Arbitrator's award, by imposing a condition - the absence of a candidate from other appropriate sources - is contrary to regulation." Id.

III.      Preliminary Matter

      With respect to the Agency's initial reply to the Union's motion for reconsideration, the Authority has previously allowed leave for a party to respond to a motion for reconsideration. See, e.g., United States Dep't of the Treasury, IRS, Washington, D.C., 61 FLRA 352 (2005). As such, the Authority will consider the Agency's reply.

      However, with respect to the parties' subsequent filings, the Authority's Regulations do not provide for the filing of supplemental submissions, and as the Union failed to request permission to file its submission under 5 C.F.R. § 2429, the Authority will not consider this submission. See United States Dep't of Health and Human Services, Food and Drug Admin., 60 FLRA 250, 250 n.1 (2004); 5 C.F.R. § 2429.26. Additionally, as the Agency's subsequent submission was intended to address the arguments raised for the first time in the union's supplemental submission, the Agency's submission is moot and will not be considered. Agency's Reply at 1.

IV.      Positions of the Parties

A.      Union's Motion for Reconsideration

      The Union asserts that the Authority "decided this case on the basis of arguments raised on its own, without allowing the parties a chance to be heard on those arguments before it issued its ruling." Motion for Reconsideration at 2. In this respect, the Union claims that the issue of whether the "Agency has been delegated specific authority" was raised for the first time by the Authority. Id. at 2.

      Additionally, the Union argues that the testing at issue in this case is not one required by the Office of Personnel Management (OPM) but is "rather a test required by the Agency's own policy and the parties' negotiated agreement, as interpreted by the Arbitrator." Id. at 3.

      Moreover, the Union asserts that the Authority misunderstood the Arbitrator's award. In this respect, it claims "the `remedy' portion of the award does not `dictate that the Agency must hire from any other appropriate source before considering SCEP candidates,' as the Authority says." Id. at 3. In this respect, it argues that if the Agency wants to consider only an SCEP applicant, then it must simply notify the Union of this decision, and that the Agency is not otherwise obligated to consider all other appropriate source applicants first. Id.

B.      Agency's Opposition

      The Agency disagrees with the Union's assertion that the Authority raised any matters sua sponte. Agency's Opposition at 5. Specifically, it states "[t]he Agency argued all along that the regulatory waiver of the testing requirements required the denial of the grievance." Id. at 2 (citing Step 2 response, page 2; Award, p.5; and Exceptions at 9-11). In this respect, the Agency contends "the Authority's determination that there was no valid Agency-developed standard, especially given the test-waiver regulation, is not only not new, it was the heart of one of the Agency's arguments all along." Id. at 3. Additionally, with respect to the issue of delegation of specific authority, it notes that this issue was previously addressed by the parties and that "[t]he Union's Motion is simply disagreeing with the Authority's conclusion that OPM regulations waive the test for SCEP employees, which was raised early and often in the grievance process." Id. at 6.

      Moreover, the Agency asserts that the Union has not shown that any other testing besides an OPM test was at issue here. It states that the award specifically notes that the test in question was an OPM test. Id. at 4 (citing Award at 13).

      Finally, the Agency argues that the award "is clear that only where the sole candidate for a vacancy is a SCEP participant can the agency hire the SCEP participant, and even then only after giving notice to the union." Id. at 5.

V.      Analysis and Conclusions

      The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under 5 C.F.R. § 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., Washington, 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: (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 [ v62 p99 ] 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.

      Here, the Union argues that its motion for reconsideration should be granted because: (1) the Authority raised the issue of delegated authority sua sponte; (2) the Authority erroneously found that OPM testing was required rather than an Agency adopted, local test; and (3) Authority mischaracterized the Arbitrator's remedy. For the following reasons, we reject the Union's arguments in support of its motion for reconsideration.

      First, it was necessary to resolve the issue of whether the Agency was delegated authority by the Office of Personnel Management to fashion a system that differed from the testing requirements under 5 C.F.R. § 213.3202(b)(15) because of the Union's claim that "an Agency-developed standard" required such testing even where OPM regulation did not. Union's Opposition at 6. In resolving this issue, the Authority noted that there was no evidence that the Agency had been delegated specific authority to impose such a test and that the regulations with respect to hiring SCEP candidates were issued by the "U.S. Civil Service." Army, Corps of Engineers, 61 FLRA at 602. Accordingly, as this issue was raised before the Authority, the Union's claim that it was raised sua sponte provides no basis for reconsideration.

      Second, the Union claims, without evidence, that the testing in question was not an OPM test but was one that was developed locally. However, the award states that the test in question was an OPM test. Award at 5, 16. As the Union could have excepted to the Arbitrator's finding that the test at issue was an OPM test, but chose not to, such claim is not properly before the Authority on a motion for reconsideration as it is untimely. See 5 U.S.C. § 7122(b). As such, the claim provides no basis for reconsideration.

      Finally, the Arbitrator concluded that "the Agency has an obligation to fill vacancies . . . by complying with the RHPTPA [MOU]" and that, in order to comply with the MOU, "all candidates