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49 FLRA No. 86

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE ARMY

U.S. ARMY RESERVE PERSONNEL CENTER

ST. LOUIS, MISSOURI

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 900

(Union)

0-AR-2455

(49 FLRA 95 (1994))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

May 9, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a request by the Agency seeking reconsideration of the Authority's decision in 49 FLRA 95 (1994). The Union did not file an opposition to the Agency's request for reconsideration. For the reasons stated below, the Agency's request for reconsideration is denied.

II. Arbitrator's Award and the Decision in 49 FLRA 95

In 49 FLRA 95, we reviewed the Agency's exceptions to the Arbitrator's award granting the grievant a cash award and ordering that the grievant's two Quality Step Increases and her within-grade increase remain in effect.

The Agency excepted to the award on the ground, among others, that the award violated Federal Personnel Manual (FPM) chapter 451, Incentive Awards, subchapter 6, Monetary Recognition for Performance, paragraph 6-3b(3). We noted that FPM chapter 451, subchapter 6 was abolished by the FPM Sunset Document. See FPM Sunset Document at 3. Accordingly, because we apply the law that is in effect at the time we make our decision, and because FPM chapter 451, subchapter 6 was no longer in effect, we concluded that that portion of the FPM did not provide a basis for finding the award deficient.

III. Request for Reconsideration

The Agency argues that extraordinary circumstances exist for the Authority to reconsider its denial of the Agency's exceptions. The Agency contends that the Authority improperly relied on U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690 (1991) (FAA) to support its decision in 49 FLRA 95 because FAA involved a negotiability issue. The Agency argues that it is proper to apply the law as it exists at the time a negotiability determination is made because negotiability determinations are prospective. However, the Agency claims that the issue in an arbitration case is whether an arbitrator's award was consistent with law when it was issued and that the law which should be applied to determine whether the award is legally valid is the law that applied at the time the award was issued.

The Agency also argues that the Authority's decision in 49 FLRA 95 finding that the FPM provision relied on by the Agency is no longer in effect is inconsistent with a 6-month moratorium agreed to by the members of the National Partnership Council (NPC) on the changes resulting from the sunset of the FPM.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17.

We have consistently held in arbitration cases that we will resolve those cases based on the state of the law at the time the cases are decided. See Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, 39 FLRA 274, 277 (1991); U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 38 FLRA 1480, 1484 (1991). Moreover, it is a commonly accepted principle of administrative law that, absent manifest injustice or statutory direction or legislative history to the contrary, an administrative agency "'must apply the law in effect at the time a decision is made, even when that law has changed during the course of a proceeding.'" U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802, 811 (1994), quoting Aaacon Auto Transport v. ICC, 792 F.2d 1156, 1161 (D.C. Cir. 1986). In this case, we can perceive no manifest injustice or find any statutory direction or legislative history that would prevent us from applying the law at the time of our decision in 49 FLRA 95. Therefore, we find that the Agency has not presented extraordinary circumstances warranting reconsideration of the Authority's decision in 49 FLRA 95.

The Agency also argues that the Authority's decision in this case is inconsistent with the moratorium on changes resulting from the sunset of the FPM that was agreed to by the NPC. The Introduction to the Sunset Document states in part:

ADVICE FROM THE NATIONAL PARTNERSHIP COUNCIL

The planned 'sunset' of the [FPM] will make it possible to change at the agency level certain personnel policies and practices that the FPM had mandated or prescribed. In the interest of stability and dispute prevention, the National Partnership Council (NPC) urges agencies and unions to refrain from pursuing such changes, unless they are mutually agreeable to both parties, for six months from the effective date of the FPM sunset. In other words, the NPC asks both unions and agencies to refrain from pursuing changes that will result in a dispute and require a third party to resolve. This six month moratorium on other than mutually agreeable changes will enable agencies and unions to jointly assess the extent of changes made possible by the FPM sunset and to approach making changes in a partnership manner.

FPM Sunset Document at 4.

In our view, the Agency misconstrues the effect of the moratorium. There is nothing in the material quoted above, or elsewhere in the FPM Sunset Document, indicating that the moratorium was intended to preserve the legal effect of the portions of the FPM that were eliminated by the Sunset Document. Instead, the moratorium provides guidance to the parties on resolving issues that would otherwise have been governed by the FPM now that portions of the FPM are no longer in effect. Thus, nothing in the moratorium requires us to apply provisions of the FPM that have been eliminated by the Sunset Document in determining whether an arbitrator's award is deficient under section 7122 of the Statute.

We conclude that the Agency has not demonstrated extraordinary circumstances warranting reconsideration of our decision in 49 FLRA 95. Accordingly, we will deny the Agency's request for reconsideration.

V. Order

The Agency's request for reconsideration is denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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