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51:0982(80)AR - - HHS, Office of the A/S for Management and Budget, Office of Grant and Contract Financial Management Division of Audit Resolution and NTEU, Chapter 229 - - 1996 FLRAdec AR - - v51 p982

[ v51 p982 ]
The decision of the Authority follows:

51 FLRA No. 80











Chapter 229



(51 FLRA 747 (1996))



March 26, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration and stay of the Authority's decision in 51 FLRA 747 (1996). The Union filed an opposition to the motion.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision.

For the following reasons, we conclude that the Agency has failed to establish that extraordinary circumstances exist. Accordingly, we deny the Agency's motion.

II. Decision in 51 FLRA 747

In 51 FLRA 747, the Authority found no basis on which to conclude that the Arbitrator's award, sustaining the grievance of three employees who had been denied career ladder promotions, was deficient under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute). More specifically, the Authority concluded that the Agency failed to establish that the award was contrary to the Classification Act, 5 U.S.C. § 5101 et seq., which governs the classification and grading of general schedule positions. The Authority found that the award did not analyze the position or place it under the position-classification plan. Rather, the Authority found that the Arbitrator had determined that the Agency had previously established a career ladder for the position at issue. The Authority also concluded that the award did not violate management's rights to determine its organization and to assign work under section 7106(a)(1) and (2) of the Statute. The Authority found that the award merely implemented the career ladder that previously was established by the Agency. Finally, the Authority determined that the award did not fail to draw its essence from the parties' agreement.

III. Positions of the Parties

A. Agency's Motion for Reconsideration

The Agency contends that extraordinary circumstances warrant reconsideration of the Authority's decision for four reasons. First, the Agency argues that career ladder promotions cannot be mere ministerial acts when there is not sufficient work available at the GS-14 level to support the promotions. Second, the Agency asserts that the decision is inconsistent with the Classification Act because it would subject Agency officials to criminal liability by "effectively" requiring them to certify the accuracy of position descriptions that could not be justified due to insufficient higher-level work. Motion for Reconsideration at 8. Third, the Agency contends that the Authority's decision "ignores the practical effect of the Arbitrator's award of requiring Agency officials--at best--to surrender management rights under [section] 7106(a)(1) and (2) to assign work and determine the Agency organization." Id. at 9. Finally, the Agency maintains that the award failed to draw its essence from the parties' agreement.

B. Union's Opposition

The Union asserts that the Authority considered the Agency's arguments regarding the sufficiency of higher-level work and the Classification Act. Further, the Union claims that the Agency's contention that the award conflicts with management's rights was also considered and rejected by the Authority in 51 FLRA 747. According to the Union, the Authority correctly found that the award merely implemented the Agency's earlier decision to promote the grievants noncompetitively through a career ladder. Finally, the Union contends that the Authority properly found that the Agency failed to establish that the Arbitrator's award did not draw its essence from the parties' agreement. For these reasons, the Union claims that the Agency's contentions do not establish extraordinary circumstances warranting reconsideration.

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 86-87 (1995) (Scott Air Force Base). In Scott Air Force Base, we identified a limited number of situations in which extraordinary circumstances have been found to exist. These have included situations where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; and (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. We also found that extraordinary circumstances may be present when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in rendering its decision. We added that a moving party's disagreement with the conclusion reached by the Authority in a case is insufficient to satisfy the extraordinary circumstances requirement.

In this request for reconsideration we find that, with one exception, the Agency has presented the same arguments raised in its exceptions before the Authority. The Agency's only new argument alleges that Agency officials would be subject to criminal liability by "effectively" requiring them to certify the accuracy of position descriptions that could not be justified due to insufficient higher-level work. Because the Agency had the opportunity to make this argument in its exceptions in 51 FLRA 747 but did not raise the argument then, the argument is untimely and can provide no basis for reconsideration. See U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 38 FLRA 1480, 1483-84 (1991).

None of the Agency's arguments establish any of the grounds on which we have granted reconsideration and the request does not argue any additional grounds. As such, the Agency's request for reconsideration does not establish the extraordinary circumstances as set forth in Scott Air Force Base necessary to warrant reconsideration of the decision published at 51 FLRA 747.

V. Order

The Agency's motion for reconsideration is denied.(*)

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

*/ In light of this decision, we need not consider the Agency's motion for a stay of the decision in 51 FLRA 747.