54:0009(2)AR - - Interior, Bureau of Indian Affairs, Navajo Area Office and NFFE, BIA Council - - 1998 FLRAdec AR - - v54 p9

[ v54 p9 ]
The decision of the Authority follows:

54 FLRA No. 2















April 15, 1998


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

I. Statement of the Case

This case is before the Authority on the Union's motion for reconsideration of the Authority's Decision in 53 FLRA 984 (1997).(1) The Agency did not file 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 Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.

II. Decision in 53 FLRA 984

In Indian Affairs, 53 FLRA 984, the Authority concluded that an arbitration award, sustaining a grievance that challenged the Agency's application and use of reduction in force (RIF) procedures, was deficient.

As relevant here,(2) the Authority rejected the Union's claim that the Authority should consider an affidavit attached to the Union's opposition. Although the Union asserted that the affidavit was intended to respond to a new argument raised by the Agency in its exceptions, the Authority found that the Agency had not raised any new arguments in its exceptions. The Authority also found that, as the Union's affidavit had not been presented to the Arbitrator, it could not be introduced to refute material on the record and, therefore, the Authority did not consider the Union's affidavit in reviewing the award. See Indian Affairs, 53 FLRA at 991 (citing Veterans Administration Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 470-71 (1981).

The Authority also rejected the Union's claim that the Agency failed to comply with 5 C.F.R. § 351.402(b) when it established the Kinlichee Boarding School as the competitive area for the grievant's RIF.(3) In particular, the Authority considered the Union's argument that an agency's exercise of discretion in drawing a competitive area may not be arbitrary or capricious.(4) See Opposition (Original Decision) at 6 (citing Beardmore v. Department of Agriculture, 761 F.2d 677, 679 (Fed. Cir. 1985)) (Beardmore).

Although the Authority did not cite Beardmore in its decision, the Authority found, in agreement with the Union, that an agency does not have unfettered and unreviewable discretion in defining competitive areas for a RIF. See Indian Affairs, 53 FLRA at 992. Consistent with this finding, the Authority concluded, contrary to the Union's claim, that Ginnodo and Grier support a finding that an agency's discretion in defining competitive areas is subject to review. The Authority noted, however, that "absent [an] abuse of discretion or a substantial departure from applicable procedures[,]" an agency's RIF action will be sustained. Id. (quoting Gandola v. Federal Trade Commission, 773 F.2d 308, 313 (Fed. Cir. 1985)) (Gandola).

The Authority stated that agencies must satisfy two elements under 5 C.F.R. § 351.402(b) when developing competitive areas for RIF purposes -- administrative structure and the local commuting area. See Indian Affairs, 53 FLRA at 993 (quoting Grier, 750 F.2d at 946). The Authority found that "the Kinlichee Boarding School constitute[d] a single administrative [structure]." Id. at 994. In addition, the Authority found that the school was an administrative structure "within the local commuting area." Id. at 995. Thus, the Authority concluded that the Agency's designation of the school as a competitive area was consistent with 5 C.F.R. § 351.402(b), and decided that the Arbitrator should have sustained the Agency's designation of the competitive area. Accordingly, the Authority set aside the Arbitrator's award. See id.

III. Motion for Reconsideration

In its motion for reconsideration, the Union contends that the decision is "completely contrary to the federal law pertaining to RIFs established by" Beardmore, 761 F.2d at 679. Motion for Reconsideration at 2. The Union maintains that "the facts of th[e] case, the [Agency's argument] before the Authority, and the . . . [Union's] [a]ffidavit . . . clearly demonstrate that the Agency did not fulfill its obligation to bargain in good faith with regard to" competitive areas. Id.

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. See 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, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include 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; or (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. Extraordinary circumstances have also been found by the Autho