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The decision of the Authority follows:
41 FLRA No. 83
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 the law of a single circuit would exclusively apply in any given case."). Our view is similar to the NLRB's practice of nonacquiescence in which the Board itself decides "whether to acquiesce in the contrary views of a circuit court of appeals or whether, with due deference to the court's opinion, to adhere to its previous holding until the Supreme Court of the United States has ruled otherwise." Insurance Agents' International Union, 119 NLRB 768, 773 (1957), enforcement denied on other grounds, 260 F.2d 736 (D.C. Cir. 1958), aff'd, 361 U.S. 477 (1960) (Insurance Agents); accord Novak Logging Co., 119 NLRB 1573, 1575-76 (1958); Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963), enforcement granted in part and denied in part, 331 F.2d 176 (8th Cir. 1964); see also Armco Steel Corp., 183 NLRB 207, 207 (1970). Under this practice, the Board has stated that its administrative law judges should not "speculate as to what course the Board should follow where a circuit court has expressed disagreement with its views." Insurance Agents, 119 NLRB at 773. Instead, it remains their "duty to apply established Board precedent which the Board or the Supreme Court has not reversed. Only by such recognition of the legal authority of Board precedent, will a uniform and orderly administration of a national act, such as the National Labor Relations Act, be achieved." Id.
Initially, we note that this case involved an allegation that the Agency committed an unfair labor practice under section 7116(a) of the Statute because the Union's grievance alleged that the Agency had failed to bargain about the institution of the incentives program in violation of the Statute. Moreover, in its exception, the Union argued that the award violated the Statute because the Arbitrator had failed to find that the Agency had committed statutory unfair labor practices under section 7116(a). Therefore, as the Agency might be able to obtain court review of our decision in this case under section 7123(a) the Statute, we conclude that we appropriately applied our policy of nonacquiescence when we refused to apply Charleston Naval Shipyard v. FLRA in reaching our decision in 41 FLRA 224.
As a matter of policy, however, we see no reason why we should not continue to apply this private and public sector precedent of nonacquiescence to the review of arbitration awards in general. Indeed, we find an approach of nonacquiescence to contrary court precedent even more compelling when dealing with the review of arbitration awards. Most of our decisions in arbitration cases do not involve an unfair labor practice and are not subject to judicial review under section 7123(a) of the Statute. See, for example, U.S. Marshals Service v. FLRA, 708 F.2d 1417 (9th Cir. 1983). In these cases, we are mindful and respectful of applicable court decisions. Nevertheless, we are of the view that by deciding on review of arbitration awards whether to acquiesce in contrary views of circuit courts of appeals, we can effectuate Congress's objective of a uniform review of arbitration awards by the Authority alone. For example, the committee of conference stated as follows with respect to the legislation that became the Statute: "In light of the limited nature of the Authority's review, the conferees determined it would be inappropriate for there to be subsequent review by the court of appeals in such matters." H.R. Rep. No. 1717, 95th Cong. 2d Sess. 153 (1978). In view of this preference for limited review by the Authority alone, we find that Authority precedent should control the resolution of grievances subject to Authority review.
Accordingly, we will deny the Agency's motion.
The Agency's motion for reconsideration is denied.
(If blank, the decision does not have footnotes.)
*/ Section 7123(a) of the Statute provides:
Any person aggrieved by any final order of the Authority other than an order under--
(1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or
(2) section 7112 of this title (involving an appropriate unit determination),
may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority's order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia.