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54 FLRA No. 2

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

NAVAJO AREA OFFICE

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

BIA COUNCIL

(Union)

0-AR-2827

_____

ORDER DENYING MOTION FOR RECONSIDERATION

April 15, 1998

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

I. Statement of the Case

This case is before the Authority on the Union's motion for reconsideration of the Authority's Decision in 53 FLRA 984 (1997).⁽¹⁾ The Agency did not file 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 53 FLRA 984

In Indian Affairs, 53 FLRA 984, the Authority concluded that an arbitration award, sustaining a grievance that challenged the Agency's application and use of reduction in force (RIF) procedures, was deficient.

As relevant here,⁽²⁾ the Authority rejected the Union's claim that the Authority should consider an affidavit attached to the Union's opposition. Although the Union asserted that the affidavit was intended to respond to a new argument raised by the Agency in its exceptions, the Authority found that the Agency had not raised any new arguments in its exceptions. The Authority also found that, as the Union's affidavit had not been presented to the Arbitrator, it could not be introduced to refute material on the record and, therefore, the Authority did not consider the Union's affidavit in reviewing the award. See Indian Affairs, 53 FLRA at 991 (citing Veterans Administration Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 470-71 (1981).

The Authority also rejected the Union's claim that the Agency failed to comply with 5 C.F.R. § 351.402(b) when it established the Kinlichee Boarding School as the competitive area for the grievant's RIF.⁽³⁾ In particular, the Authority considered the Union's argument that an agency's exercise of discretion in drawing a competitive area may not be arbitrary or capricious.⁽⁴⁾ See Opposition (Original Decision) at 6 (citing Beardmore v. Department of Agriculture, 761 F.2d 677, 679 (Fed. Cir. 1985)) (Beardmore).

Although the Authority did not cite Beardmore in its decision, the Authority found, in agreement with the Union, that an agency does not have unfettered and unreviewable discretion in defining competitive areas for a RIF. See Indian Affairs, 53 FLRA at 992. Consistent with this finding, the Authority concluded, contrary to the Union's claim, that Ginnodo and Grier support a finding that an agency's discretion in defining competitive areas is subject to review. The Authority noted, however, that "absent [an] abuse of discretion or a substantial departure from applicable procedures[,]" an agency's RIF action will be sustained. Id. (quoting Gandola v. Federal Trade Commission, 773 F.2d 308, 313 (Fed. Cir. 1985)) (Gandola).

The Authority stated that agencies must satisfy two elements under 5 C.F.R. § 351.402(b) when developing competitive areas for RIF purposes -- administrative structure and the local commuting area. See Indian Affairs, 53 FLRA at 993 (quoting Grier, 750 F.2d at 946). The Authority found that "the Kinlichee Boarding School constitute[d] a single administrative [structure]." Id. at 994. In addition, the Authority found that the school was an administrative structure "within the local commuting area." Id. at 995. Thus, the Authority concluded that the Agency's designation of the school as a competitive area was consistent with 5 C.F.R. § 351.402(b), and decided that the Arbitrator should have sustained the Agency's designation of the competitive area. Accordingly, the Authority set aside the Arbitrator's award. See id.

III. Motion for Reconsideration

In its motion for reconsideration, the Union contends that the decision is "completely contrary to the federal law pertaining to RIFs established by" Beardmore, 761 F.2d at 679. Motion for Reconsideration at 2. The Union maintains that "the facts of th[e] case, the [Agency's argument] before the Authority, and the . . . [Union's] [a]ffidavit . . . clearly demonstrate that the Agency did not fulfill its obligation to bargain in good faith with regard to" competitive areas. Id.

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 burden 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 include situations where a moving party has established that: (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; or (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. Extraordinary circumstances have also been found by the Authority where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision. Id. at 87 (footnote omitted). Mere disagreement with the Authority or attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees, Local 1857, 48 FLRA 543, 545 (1993) (Defense Logistics Agency).

The Union's first claim -- that the Authority's decision is contrary to the federal law pertaining to RIFs established by Beardmore -- is essentially a reiteration of its opposition to the Agency's exceptions, which the Authority considered and addressed in 53 FLRA 984. In its decision, the Authority considered the Union's argument that under Beardmore an agency's determination of a competitive area may not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and regulation. Although the Authority did not cite Beardmore in its decision, the Authority set forth the standard articulated in Beardmore at the outset of its decision. Compare Indian Affairs, 53 FLRA at 992 (quoting Gandola, 773 F.2d at 313), with Beardmore, 761 F.2d at 679. Applying this standard, the Authority concluded that the Agency's decision was not arbitrary, capricious or an abuse of discretion because the Authority found that the Agency had acted in accordance with 5 C.F.R. § 351.402(b) in establishing the competitive area for the grievant's RIF. See Indian Affairs, 53 FLRA at 995. Although the Union disagrees with the conclusion reached by the Authority, such disagreement does not establish extraordinary circumstances warranting reconsideration of 53 FLRA 984. See Defense Logistics Agency, 48 FLRA at 545.

The Union's second claim -- that the facts, arguments, and evidence presented to the Authority demonstrate that the Agency did not fulfill its obligation to bargain -- was also considered in 53 FLRA 984. The Union has not offered any explanation as to how the Authority erred in its evaluation of the facts, arguments, or evidence in 53 FLRA 984. As such, the Union has not demonstrated extraordinary circumstances warranting review of the Authority's decision. See Defense Logistics Agency, 48 FLRA at 545.

Because the arguments that the Union advances in its motion for reconsideration are the same arguments that the Union previously made, and the Authority considered, the Union's request for reconsideration does not establish the extraordinary circumstances necessary to warrant reconsideration of the decision published at 53 FLRA 984. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, New York Region and American Federation of Government Employees, Local 3369, 52 FLRA 989 (1997); Sport Air Traffic Controllers Organization, 52 FLRA 339 (1996). Accordingly, we deny the Union's motion for reconsideration.

V. Order

The Union's motion for reconsideration is denied.

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

1. Member Cabaniss did not participate in the Authority's decision in 53 FLRA 984.

2. In addition to the aspects of the Authority's decision to which the motion for reconsideration relates, the Authority also concluded that: (1) the Agency's exceptions were timely filed under section 2425.1(b) of the Authority's Regulations; and (2) the Agency had not demonstrated that the Arbitrator's award failed to draw its essence from the parties' collective bargaining agreement. The Union does not challenge the Authority's resolution of these issues.

3. 5 C.F.R. § 351.402(b) provides:

A competitive area may consist of all or part of an agency. The minimum competitive area in the departmental service is a bureau, major command, directorate or other equivalent major subdivision of an agency within the local commuting area. In the field, the minimum competitive area is an activity under separate administration within the local commuting area. A competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined.

4. The Union specifically argued that Beardmore overruled Ginnodo v. Office of Personnel Management, 753 F.2d 1061 (Fed. Cir. 1985) (Ginnodo) and Grier v. Department of Health and Human Services, 750 F.2d 944 (Fed. Cir. 1984) (Grier) to the extent that Ginnodo and Grier suggest that an agency's exercise of discretion is unreviewable.

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