[ v62 p395 ]
62 FLRA No. 75
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF DEFENSE
DEFENSE FINANCE AND
(62 FLRA 75 (2007))
ORDER DENYING MOTION FOR
May 7, 2008
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1]
I. Statement of the Case
This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in American Federation of Government Employees, Local 1411, 62 FLRA 75 (2007) (AFGE, Local 1411) (Member Pope not participating). The Agency did not file an opposition to the Union's motion.
The Authority's Regulations permit a party to request reconsideration of an Authority decision where it can establish extraordinary circumstances. 5 C.F.R. § 2429.17. For the reasons that follow, we find that the Union has failed to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Union's motion for reconsideration.
II. Decision in AFGE, Local 1411
The background of this dispute is set forth fully in AFGE, Local 1411 and will not be repeated here. As relevant to the Union's motion for reconsideration, the grievant alleged that the Agency improperly refused to restore unused use-or-lose annual leave. The grievant had requested to use such leave, but the Agency denied the grievant's request for reasons related to the Agency's workload. Although the Agency gave the grievant an opportunity to reschedule her leave, she refused, insisting on the dates she had originally requested. See AFGE, Local 1411, 62 FLRA at 77. When the Agency would not schedule the grievant's leave for that period, she forfeited the leave. In denying the grievance, the Arbitrator found that the Agency did not have an "absolute obligation" to grant the grievant's leave request and the grievant's refusal to reschedule the leave caused her to forfeit the leave. Id. at 76.
The Union filed an exception alleging that the award was contrary to 5 U.S.C. § 6304(d). [n2] Specifically, the Union asserted that, under § 6304(d), an employee whose timely request to schedule use-or-lose annual leave is denied must be allowed to carry that leave over into the new leave year.
Relying, in part, on Comptroller General precedent interpreting § 6304(d) as prohibiting the restoration of leave lost due to the fault of an employee, the Authority held that the grievant was at fault for the forfeiture of her leave. See id. at 77. In this regard, the Authority noted the Arbitrator's finding that the Agency attempted to reschedule the grievant's leave, but the grievant refused to do so and, instead, insisted that she be allowed to take leave on the dates she had originally requested. Thus, the Authority concluded that the grievant's forfeiture of leave resulted from "the grievant's decision not to reschedule her leave and, thus, her choice not to use it." Id. Accordingly, the Authority concluded that the award denying the grievance was consistent with law. [ v62 p396 ]
III. Motion for Reconsideration
The Union contends that, under § 6304(d), the Agency's obligation to schedule an employee's annual leave request is "absolute." Motion for Reconsideration at 3. According to the Union, contrary to the Authority's decision, there is no precedent holding that employees are obligated to cooperate with their employer in agreeing to alternative dates once they have timely requested to schedule use-or-lose annual leave. In addition, the Union asserts that there is no precedent holding that once an agency has attempted to reschedule an employee's use-or-lose leave, it is thereafter relieved of the obligation to restore that leave if the employee loses it.
The Authority has consistently held that a party seeking reconsideration of an Authority decision under § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where: (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; (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision. See id. at 85-87.
The Authority has consistently held that attempts to relitigate issues previously raised and resolved by the Authority do not establish extraordinary circumstances. See, e.g., Library of Congress, 60 FLRA 939, 941 (2005). Consequently, to the extent that the Union's motion relitigates the conclusions reached by the Authority in AFGE, Local 1411, the motion fails to meet the heavy burden of establishing that extraordinary circumstances exist to justify reconsideration of that decision. See id. Specifically, the Union's assertion that the Agency was obligated to grant the grievant's leave request and its failure to do so warrants restoration of the grievant's leave restates an argument that was previously considered and rejected by the Authority in AFGE, Local 1411. Accordingly, the Union's argument does not establish that extraordinary circumstances exist and the Union, therefore, has not established that reconsideration is warranted.
The Union's motion for reconsideration is denied.
Footnote # 1 for 62 FLRA No. 75 - Authority's Decision
Member Pope did not participate in the decision for which reconsideration is sought because its deliberations were completed prior to, and it issued shortly after, her reappointment to the Authority. Unlike other cases in which Member Pope did not participate in either an underlying decision or a decision on request for reconsideration, e.g., United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 57 FLRA 290 (2001), Member Pope participates in this reconsideration decision because there is currently a vacancy in the membership of the Authority and, as a result, failure to participate here would result in unnecessary delay.
Footnote # 2 for 62 FLRA No. 75 - Authority's Decision
(d)(1) Annual leave which is lost by operation of this section because of -
(A) administrative error when the error causes a loss of annual leave otherwise accruable after June 30, 1960;
(B) exigencies of the public business when the annual leave was scheduled in advance; or
(C) sickness of the employee when the annual leave was scheduled in advance; shall be restored to the employee.