24:0913(87)AR - AFGE Council 236 and GSA -- 1986 FLRAdec AR
[ v24 p913 ]
24:0913(87)AR
The decision of the Authority follows:
24 FLRA No. 87
AMERICAN FEDERATION GOVERNMENT
EMPLOYEES, COUNCIL 236
Union
and
GENERAL SERVICES ADMINISTRATION
Agency
Case Nos. 0-AR-711
and 0-AR-772
ORDER DENYING MOTION FOR RECONSIDERATION
I. STATEMENT OF THE CASE
These cases are before the Authority at this time on a motion filed
by the Agency on April 30, 1985, seeking reconsideration of the
establish in its exceptions that the Arbitrator's award was deficient on
any of the grounds set forth in section 7122(a) of the Federal Service
Labor-Management Relations Statute. The Authority therefore denied the
Agency's exceptions.
II. AGENCY'S CONTENTIONS
In its motion for reconsideration, the Agency essentially contends
that the Authority's decisions are inconsistent with the March 26, 1985
decision of the Authority in National Federation of Federal Employees,
Local 615 and National Park Service, Sequoia and Kings Canyon National
Parks, U.S. Department of Interior, 17 FLRA 318 (1985), aff'd sub nom.
NFFE Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. Sept. 12, 1986). The
Agency argues that because of this inconsistency, circumstances exist
which compel reconsideration by the Authority of the disputed decisions.
It also appears that the Agency is seeking a waiver of the expired
time limit for filing its motion. /2/ The Agency's motion was filed
nearly eight months after the Authority denied the Agency's first motion
for reconsideration in Case No. 0-AR-711 and denied the Agency's
exceptions in Case No. 0-AR-772.
III. ANALYSIS AND CONCLUSION
Section 2429.17 of the Authority's Rules and Regulations provides, in
pertinent part:
Section 2429.17 Reconsideration. After a final decision or order
of the Authority has been issued, a party to the proceeding before
the Authority who can establish in its moving papers extraordinary
circumstances for so doing, may move for reconsideration of such
final decision or order. The motion shall be filed within 10 days
after the service of the Authority's decision or order.
We conclude that the Agency has failed to establish any extraordinary
circumstance which would warrant waiving the expired time limit for
filing its motion for reconsideration and compel or warrant reopening
and reconsidering Case Nos. 0-AR-711 or 0-AR-772. The Agency has failed
to establish that the decisions in these cases were inconsistent with
existing precedent when they were issued. Moreover, even assuming that
the decisions are inconsistent with Sequoia and Kings Canyon, such
circumstance does not by itself warrant reopening and reconsidering the
closed cases.
The Authority, like other administrative agencies and the courts, may
enunciate a new rule of law without reopening previously decided cases
and retroactively applying the new law. To do so would have chaotic
results. The determination as to whether the new law will be applied
retroactively to closed cases is based upon evaluation of the
circumstances involved in each situation and consideration of a number
of factors, including the effects of allowing relitigation. See Chevron
Oil Co. v. Huson, 404 U.S. 97, 106-09 (1971); Linkletter v. Walker, 381
U.S. 618 (1965); Warring v. Colpoys, 122 F.2d 642 (D.C. Cir.), cert.
denied, 314 U.S. 678 (1941); Department of the Treasury v. FLRA, 707
F.2d 574 (D.C. Cir. 1983), remanding National Treasury Employees Union
and Department of the Treasury, Internal Revenue Service, 8 FLRA 136
(1982).
As to Case Nos. 0-AR-711 and 0-AR-772, we find that the Agency has
not established any extraordinary circumstances in its motion for
reconsideration which would warrant disturbing the finality of the
awards of the Arbitrators and the decisions of the Authority resolving
the disputes involved. This is particularly true in view of the fact
that the statutory grievance arbitration system mandates a high degree
of deference to arbitration awards and to finality of arbitration in
dispute resolution. See General Services Administration and American
(1985). The fact that the Authority's decisions in Case Nos. 0-AR-711
and 0-AR-772 may be inconsistent with the subsequent decision in Sequoia
and Kings Canyon is not such an extraordinary circumstance as to warrant
either waiving the expired time limit for filing a motion for
reconsideration or reopening these closed cases. /3/
IV. DECISION
For the above reasons, the Agency's motion for reconsideration is
denied.
Issued, Washington, D.C., December 19, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) This is the second motion for reconsideration filed by the Agency
in Case No. 0-AR-711. The first was denied by the Authority by Order of
August 18, 1984.
(2) Section 2429.23(b) of the Rules and Regulations provides, in
pertinent part:
(T)he Authority . . . may waive any expired time limit in this
subchapter in extraordinary circumstances.
(3) This case is distinguished from Office of Personnel Management
and American Federation of Government Employees, Local 32, AFL-CIO, 17
FLRA 21 (1985). In that case, the Authority declined to find that the
agency had committed an unfair labor practice when it failed to comply
with an arbitration award concerning the termination of a probationary
employee. The Authority had previously denied the agency's exceptions
to the award. However, based on a subsequent court decision, the
Authority essentially determined that the grievance was not grievable or
arbitrable as a matter of law and, therefore, that the arbitrator lacked
jurisdiction to even consider the matter.