36:0614(69)AR - - HHS, SSA, Wichita, KS and AFGE Local 1336 - - 1990 FLRAdec AR - - v36 p614

[ v36 p614 ]
The decision of the Authority follows:

36 FLRA No. 69









LOCAL 1336



(35 FLRA 1167)


August 16, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Union's request for reconsideration of the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration, Wichita, Kansas and American Federation of Government Employees, Local 1336, 35 FLRA 1167 (1990). The Agency filed an opposition to the Union's request for reconsideration. Because the Union fails to establish that extraordinary circumstances exist which would warrant reconsideration of our decision, we will deny the request.

II. Our Decision in 35 FLRA 1167

In 35 FLRA 1167, we set aside the Arbitrator's award, which had sustained a grievance over the Agency's determination to withhold an employee's within-grade increase, because the award was contrary to law. The Arbitrator had found, among other things, that the Agency had failed to provide the grievant 60 days' notice of its intent to withhold the increase as required by the parties' collective bargaining agreement.

We concluded, based on our decision in Patent Office Professional Association and U.S. Patent and Trademark Office, 34 FLRA 883 (1990) (Patent Office Professional Association), request for reconsideration denied, 35 FLRA 1020 (1990), that the award was contrary to law. In Patent Office Professional Association we determined that 5 U.S.C. § 5335(c) and the implementing regulations issued by the Office of Personnel Management require an employee to have timely requested reconsideration of a denial of a within-grade increase before invoking negotiated grievance and arbitration procedures. We concluded that where an employee is properly notified of the obligation to request reconsideration but fails to do so, an arbitrator is without jurisdiction to decide the merits of a grievance challenging the denial.

In 35 FLRA 1167, we found that the grievant's failure to request reconsideration of the Agency's denial of the within-grade increase before filing the grievance in the instant case was not disputed. Further, we stated that the record showed that the Agency had informed the grievant of the reconsideration procedures before the time limit to request reconsideration expired. 35 FLRA at 1170. Accordingly, we found that the grievant's failure to seek reconsideration deprived the Arbitrator of jurisdiction over the grievance and we set aside the award.

III. Positions of the Parties

A. Union's Request for Reconsideration

The Union contends that "[t]he Authority is in err[or] when it states that '. . . the record shows that the Agency informed the grievant of the reconsideration procedure[s] before the time limit to request reconsideration expired.[']" Request at 1, quoting 35 FLRA at 1170. The Union asserts that the Arbitrator "clearly stated" that he found no support for the Agency's claim that the parties' collective bargaining agreement requires the grievant to exhaust her right within 15 days to request reconsideration of its denial of her within-grade increase. Id. at 2.

The Union states that "the gravam[e]n of the grievant's complaint was that she did not receive proper notice of the withholding of her within-grade increase" and that she was not given 60 days to improve her performance as required by the parties' collective bargaining agreement.

Id. at 1. The Union argues that the Agency's failure to provide the grievant with the required 60 days to improve constituted a harmful procedural error that was remedied by the Arbitrator's award. The Union contends that this case is "in apposition [sic]" to American Federation of Government Employees, Local 3512 and Data Operations Center, Social Security Administration, 32 FLRA 940 (1988), which states that "'[t]he Authority has held only that the arbitrator must find that but for the failure to provide the required notice [of the withholding of the within-grade increase], the grievant's work would have been determined to have been at an acceptable level of competence and the grievant would have been granted the increase.'" Request at 2, quoting 32 FLRA at 943. Accordingly, the Union requests that the Authority reverse its decision in 35 FLRA 1167 "[f]or consistency in the application of the Authority's decisions[.]" Id.

B. Agency's Opposition

The Agency contends that there is no basis to grant the Union's request for reconsideration. The Agency argues that "[t]he law, regulations, and our labor agreement all clearly required the grievant to request reconsideration before entering the grievance procedure. It is undisputed that the grievant did not do this. Consequently, the [A]rbitrator lacked jurisdiction." Opposition at 1.

IV. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude t