United States General Services Administration (Agency) and American Federation of Government Employees, Council 236 (Union)

[ v63 p254 ]

63 FLRA No. 92

UNITED STATES
GENERAL SERVICES ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 236
(Union)

0-AR-4449

_____

ORDER DENYING
MOTION FOR RECONSIDERATION

April 27, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.      Statement of the Case

      This matter is before the Authority on the Agency's motion for reconsideration of the Authority's unpublished March 4, 2009 Order Dismissing Exceptions. The Union filed an opposition to the Agency's motion.

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

II.      Authority's Order Dismissing Exceptions

      The Agency filed exceptions to an award of Arbitrator Jerome H. Ross, which found that the Agency's removal of an employee (the grievant) was improper. Award at 8-11. In its exceptions, the Agency argued that the Arbitrator exceeded his authority and that the award incorrectly found that the removal was improper. Exceptions at 2-5.

      The Authority subsequently ordered the Agency to show cause why its exceptions should not be dismissed for lack of jurisdiction because the award related to the removal of an Agency employee. Order to Show Cause at 2. The Agency responded to the Order, asserting that the question of whether the Arbitrator exceeded his authority did not require the Authority to consider the merits of the Arbitrator's award. Response to Order to Show Cause at 1-2.

      The Authority dismissed the Agency's exceptions, finding that the Agency "[did] not dispute that the arbitrator's award involve[d] the Agency's removal of an employee" and that, as a result, the Authority lacked jurisdiction to review the Agency's exceptions. Order Dismissing Exceptions at 2.

III.      Agency's Motion for Reconsideration

      The Agency argues that the Arbitrator considered an issue that was different from the one that was framed. Motion for Reconsideration at 1. The Agency further states that it "urges the Authority to find that the Arbitrator did resolve an issue outside of the issues that he framed; and additionally . . . urges the Authority to hold that therefore the award is deficient." Id.

IV.      Analysis and Conclusions

      Section 2429.17 of the Authority's Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under § 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., Wash., D.C., 56 FLRA 935, 936 (2000) (IRS). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations: (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 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.

      The Agency's arguments do not establish extraordinary circumstances under this standard. See, e.g., NTEU, Chapter 65, 57 FLRA 3 (2001) (finding union's arguments, including those regarding ongoing unfair labor practice cases and the merits of the underlying [ v63 p255 ] grievance, did not establish extraordinary circumstances). Moreover, the Agency's arguments are the same ones that it previously made, and the Authority considered and rejected. United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 58 FLRA 169 (2002).

      In sum, we find that t