41:1052(83)AR - - HHS, SSA, Baltimore, MD and AFGE Council 220 - - 1991 FLRAdec AR - - v41 p1052

[ v41 p1052 ]
The decision of the Authority follows:

41 FLRA No. 83












(41 FLRA 224 (1991))


July 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in 41 FLRA 224 (1991). The Union did not file an opposition to the motion. Because the Agency fails to establish that extraordinary circumstances exist that would warrant reconsideration of our decision, we will deny the motion.

II. The Decision in 41 FLRA 224

The Agency had put into effect an incentives program to encourage local managers to increase efficiency. The Union filed a grievance contending that the Agency had an obligation to bargain over the institution of the program. On the basis of the court's decision in Charleston Naval Shipyard v. FLRA, 885 F.2d 185 (4th Cir. 1989) (Charleston Naval Shipyard v. FLRA), the Arbitrator ruled that "it would appear that at least in the jurisdiction of the United States Court of Appeals for the Fourth Circuit there is no Agency obligation to negotiate . . . ." Award at 42. Accordingly, the Arbitrator denied the grievance.

In 41 FLRA 224, we found that the award was contrary to the Federal Service Labor-Management Relations Statute (the Statute) and ordered that it be remanded to the parties for further processing. We noted that the Authority had not adopted the court's decision in Charleston Naval Shipyard v. FLRA. Furthermore, we specifically disagreed with the court's interpretation and application of management's right to determine its budget under section 7106(a)(1) of the Statute and the first prong of the Authority's two-prong budget test set forth in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), aff'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). We found that, in applying Charleston Naval Shipyard v. FLRA, the award conflicted with section 7106(a)(1) of the Statute, as we have interpreted and applied management's right to determine its budget. Accordingly, we found that the award was deficient because it relied on the court's decision.

III. The Agency's Motion for Reconsideration

The Agency contends that there are extraordinary circumstances warranting reconsideration because both the Agency and the Arbitrator are domiciled in the State of Maryland. The Agency argues that as a result of such domicile, both the Agency and the Arbitrator are subject to the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit and, consequently, are bound by the court's decision in Charleston Naval Shipyard v. FLRA. The Agency maintains that although the Authority may decline to follow the decisions and reasoning of the Fourth Circuit when deciding cases arising in other circuits, the Authority may not ignore the decisions of the Fourth Circuit with respect to matters within its jurisdiction.

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. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 41 FLRA 224.

The Agency's arguments constitute nothing more than disagreement with and an attempt to relitigate the merits of our decision in 41 FLRA 224. We reject the Agency's contention that the court's decision in Charleston Naval Shipyard v. FLRA governs this case. Rather, we maintain our view that arbitrators must apply Authority precedent rather than conflicting decisions of Federal courts of appeals as to which the Authority has not acquiesced. Federal Deposit Insurance Corporation, Chicago Region and National Treasury Employees Union, 41 FLRA 543 (1991), petition for review filed sub nom. Federal Deposit Insurance Corporation v. FLRA, No. 91-1331 (D.C. Cir. July 18, 1991) (in a case involving the release of names and home addresses of unit employees to their exclusive representative, the arbitrator applied an Authority decision reaffirming that such information is disclosable under the Statute and refused to apply the decision of the U.S. Court of Appeals for the D.C. Circuit finding that such disclosure was prohibited by the Privacy Act; the Authority concluded that the arbitrator correctly applied Authority precedent and properly rejected the conflicting decision of the D.C. Circuit). We believe that such an approach best promotes the purposes and policies of the Statute, which is designed to be applied uniformly throughout the Federal Government.

Although this case is an arbitration case, we have maintained this view in other types of cases, as well. For example, U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701, 712 (1990), petition for review filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-70078 (9th Cir. Jan. 28, 1991). In adhering to this view, we note the multiple venue provision of section 7123(a) of the Statute,(*) under which Authority orders are potentially subject to review in a number of circuits. Therefore, when the Authority issues a final order in a case, the Authority cannot know with certainty which court of appeals may review the decision. See Arvin Automotive, 285 NLRB 753, 757 (1987) (under a nearly identical multiple venue provision, 29 U.S.C. § 160(f), the National Labor Relations Board (the NLRB or the Board) takes the position that it operates "under a statute that simply does not contemplate that