National Treasury Employees Union, Chapter 208 and U.S. Nuclear Regulatory Commission

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55 FLRA No. 116




(54 FLRA 1416 (1998))



July 31, 1999


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on the Union's motion for reconsideration of the Authority's Decision in 54 FLRA 1416 (1998). The Agency 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 Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.

II.     Decision in 54 FLRA 1416

      In U.S. Nuclear Regulatory Commission and National Treasury Employees Union Chapter 208, 54 FLRA 1416 (1998) (NRC), the Authority denied Union exceptions to the arbitration award in this case, in which the Arbitrator found that a grievance was nonarbitrable because it concerned a classification matter under section 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute). [n2]  As relevant here, the Arbitrator made a factual finding that "the specific content" of the grievant's job -- motor operated valve (MOV) inspections --"did not pre-exist his assignment" and, based thereon, concluded that those duties were not encompassed in already-classified position descriptions. Award at 36. The Authority deferred to the Arbitrator's finding of fact and concluded, consistent with that finding, that the determination that the grievance involved a classification matter was not contrary to law.

III.     Motion for Reconsideration

A.     The Union

      The Union asserts that the Authority "made an erroneous interpretation of the factual record . . . ." Motion for Reconsideration at 6. According to the Union, the Arbitrator's determination that the grievant's MOV inspection duties did not pre-exist his assignment is incorrect and contradicted by the Arbitrator's additional finding that a program had been initiated to conduct MOV inspections by the time the grievant was assigned. The Union claims that, if the Arbitrator's factual determination had been correct, then the Authority would have found that the grievance did not concern a classification matter. The Union claims, in this regard, that a "generic position description," such as that covering the grievant's position, "does not encompass every specific duty performed." Id. at 7.

      The Union also asserts that the Authority erred in its conclusion of law by applying a "significantly modified" classification analysis. Id. at 4. The Union argues that the Authority's statement that "the Authority has long held that grievances concerning temporary promotions based on previously classified duties do not raise Section 7125(c)(5) issues," is incorrect. Id. at 8 (citing NRC, 54 FLRA at 1421). According to the Union, the Authority has long held that classification matters involve classification of positions, not individual duties.

B.     The Agency

      The Agency contends that the Authority correctly stated and applied the law in NRC. The Agency also asserts that the classification of "positions" necessarily "involves the analysis of the duties assigned to employees." Agency Response at 6.

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 bur- [ v55 p667 ] den 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 grounds include, as relevant here, where a moving party can establish that the Authority erred in its conclusion of law or fact finding, or where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision.

      The Union's first argument is that the Authority erred by relying on the Arbitrator's finding that the grievant's MOV duties did not pre-exist his arrival. Essentially, the Union is asserting that the award was based on a nonfact. Although an award that is based on a nonfact is deficient, the Union did not argue in its exceptions that the award was deficient on this ground. The Authority defers to arbitral findings of fact--provided they are not nonfacts. [n3]  See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993).

      The Union further argues that the Authority applied a "significantly modified" classification analysis, and that it did so sua sponte. In relevant part, the Authority's decision reads: "[T]he Authority has long-held that grievances concerning temporary promotions based on the performance of previously-classified duties do not raise classification issues within the meaning of section 7121(c)(5)." 54 FLRA at 1421. Although the facts found by the Arbitrator and relied upon by the Authority in NRC