71 FLRA No. 142                                                                                                                                                                              

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

NATIONAL VETERANS AFFAIRS

COUNCIL #53

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

(Agency)

 

0‑AR‑5429

(71 FLRA 410 (2019))

 

_____

 

ORDER DENYING

MOTION FOR RECONSIDERATION

 

May 11, 2020

 

_____

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester concurring)

 

Decision by Member Abbott for the Authority

 

1. Statement of the Case

    

   The Agency requests that we reconsider our decision in AFGE, National Veterans Affairs Council #53 (AFGE).^[1]  In that case, the Union filed a grievance regarding the Agency’s failure to bargain over the implementation of the Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (Accountability Act).^[2]  Arbitrator Hyman Cohen found that the Agency did not have a duty to bargain, and therefore, did not violate the parties’ agreement or § 7116(a)(5) of the Federal Service Labor‑Management Relations Statute (Statute)^[3] by unilaterally implementing the Accountability Act without providing notice and an opportunity to bargain.  But the Authority found the Accountability Act does not specifically provide for all aspects that would preclude bargaining under § 7106(b)(2) and (3) of the Statute and does not provide the Agency with sole and exclusive discretion that would excuse it from its statutory duty to bargain.  Accordingly, we vacated the award.

    

   In a motion for reconsideration (motion), the Agency argues that the Authority erred in its legal conclusions by mischaracterizing the stipulated issue and failing to defer to the Arbitrator’s interpretation of the stipulated issue.  The Agency also argues that the Authority erred in its remedial order by failing to provide specificity concerning the parties’ obligations.  Because the Agency’s arguments fail to establish that the Authority erred, those arguments do not provide a basis for reconsideration.  Accordingly, we deny the Agency’s motion.

    

2. Background

    

   On June 23, 2017, the Accountability Act was signed into law, providing authority under Title 38 for the Agency to address performance and misconduct concerns.  On July 1, 2017, the Union submitted a demand to bargain implementation of the Accountability Act.  The Agency proceeded to unilaterally implement the applicable provisions and procedures of the Accountability Act, without bargaining.  Soon thereafter, the Union filed a national grievance against the Agency for its failure to engage in the bargaining process before implementing the Accountability Act, and subsequently invoked arbitration.

    

   The Arbitrator found that the Agency did not have a duty to bargain because, while the Accountability Act provided new procedures that would otherwise be conditions of employment, the procedures were not conditions of employment due to the Statute’s exclusion of matters “specifically provided for by federal statute” from the definition of conditions of employment.^[4]  He also found that the Agency did not have a duty to bargain because it had sole and exclusive discretion over the matter.

    

   In AFGE, the Authority found that the Arbitrator erred in determining that the Agency did not have a duty to bargain over appropriate arrangements and procedures regarding the implementation of the Accountability Act.^[5]  Specifically, the Authority found that the Accountability Act did not specifically provide for all aspects of the disciplinary process that would preclude bargaining under § 7106(b)(2) and (3) of the Statute^[6] and did not provide the Agency with sole and exclusive discretion that would excuse it from its statutory duty to bargain.^[7]  Accordingly, the Authority set aside the award.

    

   Subsequently, the Agency filed this motion on December 9, 2019.  The Union filed an opposition to the Agency’s motion on December 21, 2019.

     

3. Analysis and Conclusion:  We deny the motion.

    

   The Agency asks the Authority to reconsider its decision in AFGE.  Section 2429.17 of the Authority’s Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision.^[8]  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.^[9]  As relevant here, the Authority has held that errors in its legal conclusions^[10] and errors in its remedial orders^[11] may justify granting reconsideration.^[12]

    

   First, the Agency argues that the Authority erred in its legal conclusions because the Authority mischaracterized the stipulated issue and failed to defer to the Arbitrator’s interpretation of the stipulated issue.^[13]  In support of its argument, the Agency claims the Arbitrator narrowed the issue to whether the Agency was required to bargain over the specific timelines and procedures provided by the Accountability Act.^[14]

    

   However, this assertion is not supported by the record.  On the first page of the award, the Arbitrator provided that “the Union claims that by implementing the Act prior to bargaining with the Union, the Agency violated [the parties’ agreement and the Statute].”^[15]  Elsewhere in the award, the Arbitrator states the issue is “[w]hether the Agency’s utilization of the disciplinary procedures of the [Accountability Act] violates             [the parties’ agreement and the Statute],”^[16] and that the grievance “alleged that the Agency failed ‘to bargain with the Union over the unilateral implementation’ of the Accountability Act ‘without bargaining the impact and implementation thereof with the Union.’”^[17]  Therefore, the Authority did not err by paraphrasing that the stipulated issue at arbitration was “whether the Agency’s unilateral implementation of the Accountability Act violated the Statute and the parties’ agreement.”^[18]  As such, the Agency has failed to demonstrate how the Authority erred because the Authority did not mischaracterize the issue at arbitration, and therefore, did not fail to defer to the Arbitrator’s interpretation of the stipulated issue.^[19]

    

   Next, the Agency argues that the Authority erred in its remedial order by failing to provide specificity concerning the parties’ obligations because the order   “did not remand the matter or direct the parties to take any affirmative action.”^[20]  In AFGE, the Authority vacated the award because it was contrary to law.^[21]  It is clear from the Agency’s motion^[22] and the Union’s opposition^[23] that the parties disagree on how the grievance should be resolved.^[24]  However, that does not demonstrate that the Authority erred in its remedial order by vacating the award.^[25]  Therefore, we find that the Agency does not demonstrate extraordinary circumstances that warrant reconsideration of AFGE.     As such, we deny the Agency’s motion.

    

    

4. Order

    

   The Agency’s motion for reconsideration is denied.

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

   Member DuBester, concurring:

    

   I agree with the decision to deny the Agency’s motion for reconsideration.