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  • United States, Department of Health, and Human Services, Food and Drug Administration, (Agency) and National Treasury Employees Union, Chapter 282, (Union)

United States, Department of Health, and Human Services, Food and Drug Administration, (Agency) and National Treasury Employees Union, Chapter 282, (Union)

[ v60 p789 ]

60 FLRA No. 151

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 282
(Union)

0-AR-3827
(60 FLRA 352 (2004))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

March 31, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in United States Dep't of Health & Human Servs., Food & Drug Admin., 60 FLRA 352 (2004) (Member Armendariz concurring and Member Pope dissenting) (FDA). The Agency filed an opposition to the Union's 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 find that the Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.

II.     Background

      The background of this dispute is set forth fully in FDA and will not be repeated here. As relevant to the Union's motion for reconsideration, the Union filed a grievance alleging that the Agency failed to comply with Article 59 of the parties' agreement because no record of a Peer Review Committee's proceedings on the evaluation of whether the grievant met the requirements for an upgrade from a GS-14 level to a GS-15 level scientist was kept. [n1]  Article 59 of the parties' agreement provides that a "record" of the [Peer Review Committee's] proceedings" will be kept. FDA, 60 FLRA at 357. In the award reviewed in FDA, the Arbitrator "concluded that the Agency violated Article 59" by not keeping a record of the proceeding, as required by Article 59, when it conducted the grievant's peer review evaluation. Id., 60 FLRA at 354. To remedy the violation, the Arbitrator ordered the Agency to reevaluate the grievant in accordance with Article 59 and remanded the issue of whether to create an entirely new panel (Peer Review Committee) for the reevaluation to the parties to resolve. Id.

      The Agency filed exceptions alleging that the award was inconsistent with law because it ordered the Agency to reevaluate the grievant and interfered with the classification process. Id. In its opposition, the Union argued that the award did not concern the grade level of the duties performed by the grievant but was more analogous to non-promotion cases where an arbitrator reviews the procedures applied but not the classification of the position. Id. at 355.

      The Authority concluded that the award was inconsistent with § 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute) and set it aside. Id. at 356. The Authority explained that § 7121(c)(5) "excludes from the Authority's and arbitrators' jurisdiction" any grievance concerning the classification of any position. Id. at 355. The Authority also stated that the Statute does not distinguish between "challenges to a classification determination based upon an allegedly substantive error . . . and a challenge to a classification determination based upon a . . . procedural error in making that determination . . . ." [n2]  Id. at 356. Upon examination, the Authority found that the peer review process concerned the classification of a position and therefore any challenge, substantive or procedural, was barred under § 7121(c)(5). Id.

III.     Motion for Reconsideration

      The Union requests reconsideration of the Authority's decision in FDA alleging that the decision is based [ v60 p790 ] on an erroneous conclusion of law. Request at 1. The Union contends that the Authority ignored well established precedent in the FDA decision. Id. at 2. According to the Union, the grievance at issue concerned only the record keeping procedures of the peer review process and not the classification of the grievant's position. Id. The Union asserts that the Authority's decision did not focus on the issue, but rather "decided that section 7121(c)(5) does not distinguish between procedural and substantive challenges to classification." Id.

      The Union argues that the majority in FDA ignored well established precedent that if the "substance of a grievance does not concern the grade level of the grievant's duties, then it does not fall within 7121(c)(5) and is within the permissible scope of a negotiated grievance." Id. In support of its argument, the Union asserts that Authority precedent has long held that cases concerning the accuracy of position descriptions do not directly concern position classification, even if the change in a position description ultimately results in a reclassification. Id. at 2-3 (citing Veterans Admin., Reg'l Office, Winston-Salem, N.C., 16 FLRA 50, 51 (1984); Fed. Aviation Admin., Dep't of Transp., Tampa, Fla., 8 FLRA 532, 535 n.3 (1982)).

      The Union further argues that the Authority's reliance on United States Environmental Protection Agency, 59 FLRA 520 (2003) (EPA) is misplaced. According to the Union, in EPA, the Authority relied on United States Dep't of Veterans Affairs, Med. Ctr., Muskogee, Okla., 47 FLRA 1112, 1116-17 (1993) (VA Muskogee), a case where the arbitrator compared the duties of a GS-5 position with those of a GS-6 position and determined that the grievants should be classified at the GS-6 level. Request at 3. The Union concludes that central to the Authority's decisions in EPA and VA Muskogee was that the arbitrators "delved into the substance of classification." Id. In contrast, the Union explains, in this case, the Arbitrator did not evaluate the classification decision, he "simply analyzed whether the record-keeping requirements of Article 59 had been followed." Id. The Union asserts that the grievance in this case is about whether the Agency violated the procedures set forth in Article 59, not about classification. Id. at 4.

      Finally, the Union alleges that the legislative history of the Statute supports Member Pope's dissent and the Union's position in this case. Id. The Union first cites language addressing an agency's obligation to negotiate procedures and arrangements. Id. The Union then explains that the legislative history specifically addresses grievances concerning a classification that are included in the negotiated grievance procedure, those that result in a reduction in pay or grade, and states that those grievances may contain allegations of procedural violations as well as improper classification criteria. Id. The Union concludes from this legislative history that Congress never intended to exclude procedural aspects of classification from the grievance procedure. Id.

IV.     Agency's Response

      The Agency argues that the Union's request for reconsideration should be denied because the Union has failed to demonstrate extraordinary circumstances warranting reconsideration. Response at 1. The Agency asserts that the Authority properly found that the grievance involved a classification matter and therefore was barred under § 7121(c)(5). Id. at 2.

      Addressing the Union's use of legislative history to support its arguments, the Agency explains that the Union's reliance on that legislative history was misplaced because the Agency's obligation to bargain appropriate arrangements and procedures was not at issue in this case. Id. In addition, the Agency states that no management rights arguments were asserted in connection with this case and the Authority never addressed the "interrelationship between sections 7106(a) and 7121(c)(5) in its [d]ecision." Id.

      The Agency also asserts that the Union does not provide any reason why the Authority should revisit the cases it already discussed in the FDA decision. Id. at 3. The Agency argues that the Union does not demonstrate how the cases cited constitute extraordinary circumstances warranting a reconsideration of FDA. Id.

V.     Analysis and Conclusions

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. The Authority has repeatedly recognized 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 Treasury, Internal Revenue Serv., Wash., D.C., 56 FLRA 935 (2000) (IRS). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations: (1) where an intervening court decision or change in the law affected dispositive issues; (2) where evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) where the moving party has not been given an opportunity to [ v60 p791 ] address an issue raised sua sponte by the Authority in the decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995). The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See IRS, 56 FLRA at 936.

      Upon careful consideration of the Union's motion and record, we conclude that, except for its contention concerning the legislative history of the Statute, the Union has not raised any new arguments in its motion that were not presented in its opposition, although the Union did cite different precedent in support of arguments raised earlier. As the Union's arguments, other than the argument based upon legislative history, are substantively the same as those raised in its opposition to the exceptions in FDA, they constitute an attempt to relitigate conclusions reached by the Authority in resolving those exceptions and do not establish that reconsideration is warranted. See, e.g., AFGE, Local 1156 and Laborers' Int'l Union, Local 1170, 57 FLRA 748, 748 (2002).

      Concerning the Union's contention that the legislative history of the Statute supports its position, the Authority has refused to consider, in resolving a request for reconsideration, arguments that were not raised in its review of an award upon a party's exceptions. See United States Dep't of Transp., Fed. Aviation Admin., 58 FLRA 389, 390 (2003); United States Dep't of Health & Human Servs., Office of the Assistant Sec'y for Mgmt. & Budget, Office of Grant & Contract Fin. Mgmt., Div. of Audit Resolution, 51 FLRA 982, 984 (1996); EEOC, 49 FLRA 7, 11 (1994); United States Dep't of the Interior, Bureau of Reclamation, Lower Colo. Dams Project Office, Parker and Davis Dams, 42 FLRA 76, 77 n.* (1991); United States Dep't of Health & Human Servs., SSA, Kansas City, Mo., 38 FLRA 1480, 1483-84 (1991). Because the Union did not raise its argument concerning the legislative history of the Statute before the Arbitrator or in its opposition below, the Authority will not consider it upon motion for reconsideration. Id.

      Based on the above, the Union has not proven any extraordinary circumstances warranting reconsideration of the FDA decision.

VI.     Order

      The Union's motion for reconsideration is denied. [n3] 

Footnote # 1 for 60 FLRA No. 151 - Authority's Decision

   Article 59 sets forth the procedures to be used in the peer review process.

Footnote # 2 for 60 FLRA No. 151 - Authority's Decision

   Member Armendariz found that the award was contrary to § 7121(c)(5) because the substance of the grievance effectively constituted an attempt by the grievant to obtain the higher pay of a GS-14 level, compared to that of her current GS-13 level, based on the performance of duties in her permanent position. He also noted that his colleagues disagreed over the extent to which § 7121(c)(5) applies generally to procedural and substantive aspects of classification matters. To the extent that this issue needed to be resolved in this case, he joined Chairman Cabaniss solely for the purpose of issuing the decision and avoiding impasse.

Footnote # 3 for 60 FLRA No. 151 - Authority's Decision

   Member Pope reaffirms her dissent in 60 FLRA 352 (2004). However, in light of the majority's decision in that case, Member Pope joins in denying the motion for reconsideration.