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39:0647(53)AR - - Navy, Naval Base, North Island, San Diego, CA and International Association of Fire Fighters, Local F-33 - - 1991 FLRAdec AR - - v39 p647

[ v39 p647 ]
The decision of the Authority follows:

39 FLRA No. 53












(38 FLRA No. 120)


February 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Union's request for reconsideration of the Authority's decision in 38 FLRA No. 120. The Agency did not file an opposition to the Union's request.

As the Union fails to establish extraordinary circumstances to warrant reconsideration of our decision, we will deny the request.

II. The Decision in 38 FLRA No. 120

In 38 FLRA No. 120, we denied the Union's exceptions to the Arbitrator's award. The Arbitrator addressed the issue of arbitrability before him, and determined that a grievance over an employee's nonselection for a nonunit supervisory fire protection inspector position was not arbitrable. The Arbitrator found, among other things, that the parties had not negotiated promotion procedures for nonunit positions and he concluded, therefore, that the Agency had no obligation to arbitrate grievances concerning such selections.

We determined that the Union's exceptions related to the Arbitrator's arbitrability determination and concluded that the exceptions provided no basis upon which to find the award deficient. We found that the Union's contentions regarding the arbitrability of the grievance constituted nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement and with his reasoning in resolving the arbitrability issue. Further, we found that the Union's contention regarding the procedural arbitrability question was appropriately resolved by the Arbitrator and was not subject to review by the Authority. Accordingly, we denied the Union's exceptions.

III. Union's Request for Reconsideration

The Union states that the issues giving rise to the grievance "were never addressed" by the Arbitrator, and further states that "[i]t is regret[t]able" that the Authority's decision in 38 FLRA No. 120 did not address these issues. Request at 1. The Union raises a number of contentions relating to the matter giving rise to the grievance, and contends that extraordinary circumstances exist to warrant reconsideration of 38 FLRA No. 120 because the Arbitrator's award, among other things, was contrary to the parties' collective bargaining agreement. The Union argues that, although not specifically stated, its exceptions to the Arbitrator's award implied that the award was contrary to "some rule or regulation or for that matter some related Federal or private sector case[.]" Id. at 2.

The Union asserts that a "possibility" of bias on the part of the Arbitrator existed because the Arbitrator resided in the same county where the Agency's personnel employment office was located, and therefore, could have been "acquainted with [l]itigants representing [the Agency]." Id. at 1. The Union requests that reconsideration be granted, that the Authority consider the underlying grievance in the matter, and that the grievant be made whole.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. The Union fails to establish "extraordinary circumstances" within the meaning of section 2429.17.

The arguments presented by the Union in support of its request for reconsideration constitute nothing more than disagreement with the Authority's decision in 38 FLRA No. 120 and an attempt to relitigate the merits of the case. As such, these arguments do not establish the extraordinary circumstances necessary for reconsideration. See, for example, U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Local 171, 38 FLRA 541, 542-43 (1990) (arguments which constitute nothing more than disagreement with an Authority decision and an attempt to relitigate the merits of a case do not constitute extraordinary circumstances).

Moreover, we note that the issue before the Arbitrator concerned solely the question of arbitrability. See Award at 2; 38 FLRA No. 120, slip op. at 2. Inasmuch as the Arbitrator determined that the grievance was not arbitrable, and the arbitrability of the grievance was the sole issue before him, the merits of the grievance were appropriately not addressed by him. Further, inasmuch as the Arbitrator ruled only on the arbitrability of the grievance, the merits of the grievance were not before the Authority for consideration.

V. Order

As the Union has not established extraordinary circumstances, within the meaning of section 2429.17 of the Authority's Rules and Regulations, the Union's request for reconsideration is denied.

(If blank, the decision does not have footnotes.)