72 FLRA No. 79

 

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS
JOHN J. PERSHING VA MEDICAL CENTER

POPLAR BLUFF, MISSOURI
(Agency)

and
 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES
LOCAL 2338
(Union)

 

0-AR-5622

(72 FLRA 200 (2020))

 

_____

 

ORDER DENYING

MOTION FOR RECONSIDERATION

 

July 9, 2021

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

 

1. Statement of the Case

    

   The Union requests that we reconsider our decision in U.S. Department of VA, John J. Pershing VA Medical Center, Poplar Bluff, Missouri (VA).[1]  In that case, we granted the Agency’s exception contesting the Arbitrator’s jurisdiction to resolve a grievance challenging a probationary employee’s termination.  The Authority held that because the grievance concerned the termination of a probationary employee, which is excluded from the scope of the negotiated grievance procedure, the Arbitrator did not have jurisdiction to resolve the grievance.[2]  Accordingly, the Authority set aside the award.

    

   In its motion for reconsideration (motion), the Union now argues that the Authority erred in reaching its decision.  The Union’s motion raises for the first time an issue that could have been previously raised, but was not, and also raises the same arguments that the Authority considered in VA.  Because the Union does not establish extraordinary circumstances warranting reconsideration, we deny the motion.

2. Background and Authority’s Decision in VA

    

   The facts, summarized here, are set forth in greater detail in VA.[3]  As relevant here, after the Union filed a grievance alleging that the Agency violated the parties’ collective-bargaining agreement and law by failing to protect the grievant from racial harassment, the Agency terminated the grievant during her probationary period for being absent without requesting leave. 

    

   In his award, the Arbitrator found that the Agency violated the parties’ agreement and law by creating a hostile work environment that caused the grievant to be absent from work.  Because the grievant’s absence was the reason underlying her removal, he found that the Agency did not have just cause to terminate her.  As a remedy, the Arbitrator ordered the Agency to reinstate the grievant.  The Agency filed exceptions to the award, arguing that it was contrary to law because the Arbitrator did not have jurisdiction over a probationary employee’s termination.^[4]

    

   In VA, the Authority granted the Agency’s contrary-to-law exception.  Specifically, the Authority found that the Arbitrator lacked jurisdiction over the termination of a probationary employee, even where the grievance alleged that the Agency based its decision on discrimination. 

    

   On May 12, 2021, the Union filed a motion for reconsideration of VA.

    

   III.          Analysis and Conclusion:  We deny the Union’s motion for reconsideration.

    

   The Union asks the Authority to reconsider its decision in VA.  Section 2429.17 of the Authority’s Regulations permits a party that can establish extraordinary circumstances to move for reconsideration of an Authority decision.[5]  The Authority has repeatedly held that a party seeking reconsideration bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action.[6]  Errors in the Authority’s remedial order, process, conclusions of law, or factual findings may justify granting reconsideration.[7]  However, attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances.[8]  Additionally, the Authority has refused to grant reconsideration of issues that could have been previously raised, but were not, and are raised for the first time on a motion for reconsideration.[9]

    

   The Union argues that the Authority     “exceeded its authority” by concluding that the Arbitrator lacked jurisdiction to resolve the grievance.[10]  To support this argument, the Union asserts that the grievant was terminated beyond her one-year probationary period, which it argues cannot be extended under 5 C.F.R. § 315.802(a).[11]  But the Union did not previously raise this argument in VA, even though it had the opportunity to do so.[12]  Consequently, the Union cannot raise this argument now.[13]

    

   The Union also reiterates the arguments that it made in VA that the Agency discriminated against the grievant and caused her work-related medical condition to worsen.[14]  The Authority rejected these arguments when it held that the Arbitrator lacked jurisdiction to resolve the grievance, even where the grievance alleged discrimination claims.[15]  The Union’s attempt to relitigate these arguments fails to demonstrate that the Authority erred.[16]

    

   Finally, the Union argues that the Authority erred “when it stated [that] the [U]nion could only file a complaint of discrimination through the Office [of] Resolution Management.”[17]  However, the Authority did not make this finding in VA, nor has the Union otherwise supported or explained its assertion.  Therefore, the Union’s argument does not establish that the Authority erred in its factual findings.[18]

    

   Accordingly, we find that the Union does not demonstrate that extraordinary circumstances exist to warrant granting reconsideration of VA and we deny the Union’s motion.

    

   IV.          Decision

    

   We deny the Union’s motion for reconsideration.