26:0088(10)AR - HHS, SSA and AFGE -- 1987 FLRAdec AR

 26 FLRA No. 10
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL SECURITY
 ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-1253 
                                             (24 FLRA No. 2)
 
                 ORDER DENYING MOTION FOR RECONSIDERATION
 
                         I.  STATEMENT OF THE CASE
 
    The case is before the Authority on a motion filed by the Agency
 seeking reconsideration of the Authority's decision of November 10,
 1986, dismissing the Agency's exceptions to the Arbitrator's awards of
 August 6 and 7, 1986, as untimely filed.
 
                              II.  BACKGROUND
 
    In its decision, the Authority determined that under section 7122(b)
 of the Federal Service Labor-Management Relations Statute and sections
 2425.1, 242.921 and 2429.22 of the Authority's Rules and Regulations,
 any exceptions to the Arbitrator's bench awards of August 6 and 7 had to
 be filed with the Authority within 30 days of the dates those awards
 were rendered, that is, no later than the close of business on September
 4 and 5, 1986, respectively.  In reaching that determination, the
 Authority rejected the Agency's assertion that because no representative
 of the Agency was present at the hearing, the time limit for filing
 exceptions should begin to run from the date the transcript of the
 proceeding was mailed to the Agency.  The Authority found that it was
 well settled based upon precedent, particularly in cases involving other
 related bench rulings between these same parties, that bench awards are
 final when rendered and ripe for filing exceptions with the Authority at
 that time.  The Authority also found that the record record clearly
 indicated that while the Agency did not participate in the August 6 and
 7 hearings, it voluntarily chose not to do so and, thus, acted at its
 own peril.  The Authority therefore concluded that the time limit for
 filing exceptions expired on September 4 and 5 and that the Agency's
 exceptions filed on October 23, 1986, were untimely.  Accordingly, the
 Authority dismissed the exceptions.
 
                           III.  AGENCY'S MOTION
 
    In its motion for reconsideration, the Agency alleges that the
 Authority's decision is based on erroneous findings and interpretations
 of the facts in the case.  In support of this allegation, the Agency
 argues that the Authority erred in concluding that the Agency
 voluntarily chose not to participate in the arbitration proceeding on
 August 6 and 7, 1986, asserting that the Arbitrator denied the Agency
 its right to be represented.  The Agency further alleges that the
 Authority erred in its interpretation of its Rules and Regulations in
 finding that the Agency's exceptions were untimely filed.  In support of
 this allegation, the Agency asserts that the time for filing the
 exceptions began to run from the date the transcript of the proceeding
 was mailed to the Agency and not from the date of the awards.
 Additionally, the Agency asserts that its interpretation of the time
 limits is correct and should be applied because it requested such an
 interpretation from the Authority in a motion on August 29, 1986, and
 the Authority did not rule on that motion.  The Agency further asserts
 that it could not have filed complete exceptions until it received the
 transcript.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    Section 2429.17 of the Authority's Rules and Regulations permits a
 party that can establish "extraordinary circumstances" to request
 reconsideration of a decision of the Authority.  However, in this case,
 we conclude that the Agency has not established "extraordinary
 circumstances" within the meaning of section 2429.17.  Rather, the
 arguments presented by the Agency constitute nothing more than
 disagreement with the merits of the Authority's decision and an attempt
 to relitigate the matter.
 
    As to the Agency's assertion that the Authority erred in finding that
 the Agency voluntarily chose not to participate in the hearing, portions
 of the transcript of the hearing quoted by the Agency in its motion for
 reconsideration support the Authority's finding.  The Agency official
 who sought to attend the hearing expressly emphasized that he would not
 participate as a representative of the Agency in the proceeding.  The
 Arbitrator denied his request to attend as an observer, noting that the
 ground rules established by the parties and practice followed in earlier
 proceedings in this dispute required the exclusion of all individuals
 except a lead representative and technical advisor for each party.
 Thus, contrary to the Agency's assertion, it was afforded an opportunity
 to be represented in the proceeding but it refused to participate.  The
 Agency can not now complain that it was not represented in the hearing.
 American Federation of Government Employees and Social Security
 Administration, 25 FLRA No. 12 (1987), slip op. at 3. The Agency's
 disagreement with the Authority provides no basis for reconsidering the
 decision in this case.
 
    As to the Agency's assertion that the Authority erred in finding that
 the Agency's exceptions were untimely under the Authority's Rules and
 Regulations, it is readily apparent from the cases cited in the order
 dismissing the Agency's exceptions that the Agency knew or should have
 known at the time of the proceeding before the Arbitrator on August 6
 and 7, 1986, that the time limits for filing exceptions to a bench award
 begins to run from the date the award is rendered and not from the date
 the transcript of the hearing is mailed to the parties.  U.S. Department
 of Health and Human Services, Social Security Administration and
 American Federation of Government Employees, AFL-CIO, 22 FLRA No. 16
 (June 13, 1986).  Moreover, the Agency knew or should have known that
 there was no merit to its argument in its motion of August 29, 1986,
 that the time limit should run from the date of mailing of the
 transcript.  See id.; U.S. Department of Health and Human Services,
 Social Security Administration and American Federation of Government
 Employees, AFL-CIO, 23 FLRA No. 19 (August 15, 1986).  The Agency's
 disagreement with the Authority's interpretation and application of its
 Rules and Regulations provides no basis for reconsidering the decision.
 
    Furthermore, as to the Agency's assertion that the Authority did not
 rule on its August 29 motion, the Agency renewed that motion in its
 untimely exceptions and it is clear that the Authority considered and
 rejected all supporting arguments in the motion in the order dismissing
 the exceptions.  Finally, we note that even having elected not to
 participate in the August 6 and 7 proceedings, the Agency was not
 prevented from filing timely, legally sufficient exceptions.  The Agency
 could have requested the Arbitrator to provide it with a summary of his
 bench decisions on the dates in question and the Agency could have filed
 exceptions based on such a summary within the prescribed time limit.  We
 conclude that the Agency's assertions do not establish the existence of
 any extraordinary circumstances within the meaning of section 2429.17 of
 the Rules and Regulations.
 
                               V.  DECISION
 
    The Agency's motion for reconsideration is denied.
 
    Issued, Washington, D.C., March 9, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY