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54 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2030

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

IDAHO FALLS, IDAHO

(Agency)

0-AR-2813

(53 FLRA 1136 (1998))

_____

ORDER DENYING MOTION FOR RECONSIDERATION

July 31, 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 1136 (1998).⁽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 1136

In 53 FLRA 1136, the Authority concluded that the Union failed to establish that the Arbitrator's award was deficient under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute). The award denied a grievance alleging that the Agency's reassignment of the grievant constituted improper discipline and violated the Whistleblower Protection Act.⁽²⁾

In the award, the Arbitrator concluded that "by not accepting the grievant's resignation," the District Manager "demonstrated she held no animosity toward the grievant and did not direct his reassignment because of his allegations of interference in law enforcement or [his] grievance filing relative to reorganization." Award at 10 (emphasis added). The Authority found that the Arbitrator's conclusion was based on his factual findings that: (1) the grievant became upset and resigned over what he perceived was management's interference in law enforcement issues; (2) the District Manager did not immediately accept his resignation but placed him on administrative leave; (3) the District Manager gathered information on the grievant's resignation; (4) the District Manager made a prudent administrative judgment; and (5) the District Manager determined that the grievant's "precipitous resignation was stark evidence of his unsuitability for continued assignment as a ranger." 53 FLRA at 1143 (quoting Award at 10). The Authority concluded that the Arbitrator's findings, which were not excepted to, established that there was clear and convincing evidence that the Agency would have reassigned the grievant in the absence of the protected disclosures. The Authority also stated that although the grievant was not required to produce evidence of a retaliatory motive as part of his WPA claim, the Arbitrator did not err in considering the lack of such motive as a factor in his analysis of whether the Agency satisfied its burden of proof. Accordingly, the Authority found the award was not deficient as contrary to the WPA.⁽³⁾

III. Motion for Reconsideration

The Union asserts that extraordinary circumstances warrant reconsideration of the Authority's decision with respect to the finding "that the Agency did not reassign [the grievant] out of law enforcement in violation of the [WPA]." Motion for Reconsideration (Motion) at 1. The Union contends that "newly discovered" evidence "crucial to the decision reached by the Authority [was] not . . . presented to the Authority" because such evidence was not available at the time of the arbitration hearing.⁽⁴⁾ Id. at 1 and 2. According to the Union, this evidence "casts . . . doubt" on whether the Agency proved by "'clear and convincing evidence'" that it would have reassigned the grievant in August 1994 in the absence of his protected disclosures. Id. at 1.

The documents submitted by the Union include a September 1996 audit report prepared by the Department of Interior's Office of Inspector General (OIG) concerning occupancy trespass on land managed by the Bureau of Land Management (Bureau), and a memorandum, dated April 2, 1997, to Agency managers in Idaho concerning the audit report and reiterating the Agency's policy on the maintenance of trespass records. The Union asserts that these documents show that the OIG was investigating the Bureau's enforcement of trespass issues--the same issues that the grievant raised with management--and that this evidence supports its position that the decision to reassign the grievant was based on an "improper motive." Id. at 3. The Union also submitted affidavits prepared in March 1997 by two witnesses purporting to set forth facts that demonstrate that the Agency's motive for reassigning the grievant was improper.

Additionally, the Union argues that the Authority erred in holding that the Arbitrator's factual findings supported the conclusion that the Agency proved by clear and convincing evidence that it would have reassigned the grievant in the absence of the protected disclosures.

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration of an Authority decision bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 86-87 (1995) (identifying a limited number of situations in which extraordinary circumstances have been found to exist and holding that disagreement with the Authority's conclusion is insufficient to satisfy the extraordinary circumstances requirement).

The Union's contention that new evidence crucial to the decision was not presented to the Authority because it was not available at the time of the arbitration hearing does not establish extraordinary circumstances that warrant reconsideration of the decision in 53 FLRA 1136. Arbitration awards are not subject to review on the basis of evidence that comes into existence after the arbitration. See, e.g., National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Langley, Virginia, 53 FLRA 517, 519-20 (1997) (Defense Commissary Agency). Even where new evidence or testimony is discovered that would have resulted in a different award if it had been presented at the arbitration hearing, this is not a sufficient ground for "vitiating the required finality of the original award." Id. at 519 (quoting Veterans Administration, Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 471 (1981) (VA)).

It is undisputed that the OIG audit report, the memorandum referencing the report, and the affidavits came into existence after the arbitration. Consistent with Authority precedent, such evidence may not be introduced to refute material on the record made before the Arbitrator. See Defense Commissary Agency, 53 FLRA at 520; VA, 5 FLRA at 470-71.

Finally, the Union contends that the Authority erred in basing its conclusion that the Agency did not violate the WPA on the Arbitrator's factual findings. The Union has not demonstrated that the Authority erred in deferring to the Arbitrator's findings of fact in 53 FLRA 1136. See U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 367 (1996). As such, the Union has not established extraordinary circumstances warranting reconsideration of the Authority's decision. Accordingly, we deny the Union's motion for reconsideration.

V. Order

The Union's motion for reconsideration is denied.

APPENDIX

5 U.S.C. § 2302(b):

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-

. . . .

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of --

(A) any disclosure of information by an employee . . . which the employee . . . reasonably believes evidences--

(i) a violation of any law, rule, or regulation[.]

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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 1136.

2. The Whistleblower Protection Act was enacted in 1989 as Pub. L. No. 101-12, 103 Stat. 16, and is codified at various sections of title 5 of the U.S. Code. As relevant to this case, it amended 5 U.S.C. § 2302(b)(8) (1988), which was originally enacted as part of the Civil Service Reform Act of 1978. In this decision, the term "WPA" means 5 U.S.C. § 2302(b)(8), which is set forth in the Appendix to this decision.

3. Also, the Authority concluded that the award was not inconsistent with 5 U.S.C. § 2302(b)(9), or with an Agency regulation concerning law enforcement authority, or with section 7114(b)(4) of the Statute. The Union does not challenge the Authority's resolution of these issues.

4. The arbitration hearing was held on August 21, 22, and 23, 1995, and the Arbitrator's Award was issued on February 4, 1996.

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