73 FLRA No. 162 Decisions of the Federal Labor Relations Authority 827

73 FLRA No. 162

UNITED STATES 

DEPARTMENT OF THE ARMY

U.S. ARMY GARRISON

PICATINNY ARSENAL, NEW JERSEY

(Agency)

and

INTERNATIONAL ASSOCIATION 

OF FIREFIGHTERS

LOCAL F-169

(Union)

0-AR-5864

(73 FLRA 700 (2023))

_____

ORDER DENYING 

MOTION FOR RECONSIDERATION

March 13, 2024

_____

Before the Authority: Susan Tsui Grundmann, Chairman,

and Colleen Duffy Kiko, Member

I. Statement of the Case

The Agency requests reconsideration of the 

Authority’s decision in U.S. Department of the Army, 

U.S. Army Garrison, Picatinny Arsenal, New Jersey 

(Picatinny).1 Because the Agency’s motion for 

reconsideration (motion) does not establish extraordinary 

circumstances warranting reconsideration, we deny it.

II. Background and Authority’s Decision in 

Picatinny

The facts of this case are set forth in greater detail 

in Picatinny.

The Agency operates a fire department that 

comprised two fire stations. On September 28, 2021,2the 

Agency notified the Union that it planned to close one of 

the stations—station two. The Agency closed station two 

1 73 FLRA 700 (2023). 

2 Unless otherwise stated, all dates occurred in 2021.

3 Exceptions, Ex. 2, Grievance (Grievance) at 1.

4 Opp’n, Ex. 2, Collective-Bargaining Agreement (CBA) Art. 15, 

§ 7.

5 Arbitrability Award at 4.

6 Merits Award at 12.

7 Picatinny, 73 FLRA at 701 (quoting Exceptions Br. at 7-9). 

on October 12 and reduced the fire department’s per-shift 

staffing level from twelve to nine positions. 

In a November 8 grievance, the Union alleged the 

Agency “failed to properly staff” the fire department on 

“October 12-17, 20-31, November 1-3, and on a 

continuing occurrence” (the alleged improper-staffing 

events).3 The Union asserted the staffing reduction 

violated the parties’ collective-bargaining agreement and 

various guidelines, instructions, standards, and 

regulations.

At arbitration, the Agency alleged the Union 

failed to timely file the grievance. Under Article 15 of the 

parties’ collective-bargaining agreement, grievances must 

be filed within twenty-one days “after receipt of the notice 

of action, occurrence of the incident[,] or knowledge of the 

incident (whichever occurs first).”4 The Agency argued 

Article 15 required the Union to file the grievance within 

twenty-one days of September 28, when the Agency 

notified the Union it would close station two. However, 

Arbitrator A. Martin Herring credited the Union’s position 

on arbitrability: that the grievance arose from the alleged 

improper-staffing events and was “continuing . . . s[uch] 

that each day that passed created a new timeline for 

filing.”5 The Arbitrator issued an arbitrability award 

reflecting these findings. 

In a separate merits award, the Arbitrator 

sustained the grievance and directed the Agency to 

“restore the [f]ire[-d]epartment staffing . . . as it existed 

prior to the [closure of station two].”6

In Picatinny, the Authority addressed the 

Agency’s exceptions to both awards. As relevant here, the 

Agency alleged the Arbitrator’s procedural-arbitrability 

determination (that the grievance was timely) failed to 

draw its essence from the parties’ agreement. The 

Authority observed that some of the Agency’s essence 

arguments contended the Arbitrator’s application of the 

continuing-violation theory was contrary to the parties’ 

agreement and “legally erroneous.”7 However, the 

Authority found the Agency did not present such 

arguments to the Arbitrator, and had asserted only that the 

Union failed to “prove” the existence of a continuing 

violation.8 Applying §§ 2425.4(c) and 2429.5 of the 

Authority’s Regulations,9the Authority found the Agency 

could not raise those essence arguments for the first time 

8

Id. at 701 n.24 (quoting Opp’n, Attach. 6, Agency Merits Br. 

(Agency Merits Br.) at 10).

9 5 C.F.R. §§ 2425.4(c) (“[A]n exception may not rely on any 

. . . arguments . . . that could have been, but were not, presented 

to the arbitrator.”), 2429.5 (“The Authority will not consider any 

. . . arguments . . . that could have been, but were not, presented 

in the proceedings before the . . . arbitrator.”).
828 Decisions of the Federal Labor Relations Authority 73 FLRA No. 162

on exceptions, and the Authority dismissed those 

arguments.10

The Authority did, however, consider the 

Agency’s other essence arguments. Specifically, the 

Agency alleged the Arbitrator “ignored the unambiguous 

language” in Article 15 “limiting the time within which 

grievances must be filed” to twenty-one days after notice, 

occurrence, or knowledge of an event, “whichever occurs 

first.”11 As it did before the Arbitrator, the Agency 

maintained that its September 28 notice to the Union 

“started the clock for [the] Union to file a grievance.”12 

However, the Authority found the Arbitrator credited the 

Union’s position that the grievance alleged continuing 

violations arising from the alleged improper-staffing 

events. Consequently, under the Arbitrator’s 

interpretation, the alleged improper-staffing events from 

October 20 to November 3 formed the basis for a timely 

grievance under Article 15. Because the Agency provided 

no basis for finding that interpretation deficient, the 

Authority rejected these essence arguments.

However, the Authority granted an Agency 

exception arguing the Arbitrator’s remedy—directing the 

Agency to “restore . . . [f]ire[-d]epartment staffing”13—

was ambiguous so as to make implementation 

impossible.14 The Authority remanded the matter for the 

Arbitrator to “specify the actions necessary to bring the 

Agency into conformity with the ‘staffing’ that existed 

prior to the indefinite closure of station two.”15

On October 12, 2023, the Agency filed this 

motion. The Union requested leave to file, and did file, an 

opposition to the motion.16

 

10 Picatinny, 73 FLRA at 701-02 (applying §§ 2425.4(c) and 

2429.5 of the Authority’s Regulations).

11 Id. at 702 (quoting Exceptions Br. at 5-7). 

12 Exceptions Br. at 7.

13 Merits Award at 12.

14 Picatinny, 73 FLRA at 703 (finding it unclear whether “the 

Arbitrator directed the Agency to (1) reopen station two and 

restore its staffing level to four positions; (2) staff station one 

with twelve positions—the total staffing level that existed when 

both stations one and two were open; or (3) take some other 

action”).

15 Id. (quoting Merits Award at 12).

16 It is the Authority’s practice to grant requests to file 

oppositions to motions for reconsideration. Therefore, we grant 

the Union’s request and consider its opposition. See U.S. Dep’t 

of the Treasury, IRS, Wash., D.C., 61 FLRA 352, 353 (2005). 

17 Mot. at 2.

18 5 C.F.R. § 2429.17.

III. Analysis and Conclusion: The Agency does 

not establish extraordinary circumstances 

warranting reconsideration of Picatinny.

The Agency argues the Authority committed 

factual and legal errors in Picatinny.

17

 Section 2429.17 of 

the Authority’s Regulations permits a party to move for 

reconsideration of an Authority decision.18 A party 

seeking reconsideration bears the heavy burden of 

establishing that extraordinary circumstances exist to 

justify this unusual action.19 Errors in the Authority’s 

remedial order, process, conclusions of law, or factual 

findings may justify granting reconsideration.20 However, 

mere disagreement with, or attempts to relitigate, the 

Authority’s conclusions are insufficient to establish 

extraordinary circumstances.21 

The Agency first claims there was no factual 

basis for the Authority to dismiss some of the Agency’s 

essence arguments.22 According to the Agency, it argued 

at arbitration that the continuing-violation theory is 

contrary to the parties’ agreement and legally erroneous, 

and the Authority in Picatinny erred in concluding 

otherwise.23 However, the Agency’s position is 

undermined by discrepancies between its exception 

arguments and its arbitration arguments.

In its exceptions, the Agency alleged Article 15 

contains “no exceptions” to the twenty-one-day filing 

deadline, and there is “certainly no exception for a 

‘continuing violation.’”24 Further, the Agency cited 

multiple Authority decisions to support the contention that 

it was “legally erroneous” for the Arbitrator to apply the 

continuing-violation theory.25 Before the Arbitrator, the 

Agency did not raise these arguments, despite the Union 

explicitly asking the Arbitrator to assess the grievance’s 

timeliness under the continuing-violation theory.26 In its 

arbitrability brief to the Arbitrator, the Agency did not: 

assert that Article 15 or law precluded the Arbitrator from 

applying the continuing-violation theory; reference the 

19 Indep. Union of Pension Emps. for Democracy & Just., 

73 FLRA 280, 280 (2022). 

20 Id.

21 U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., 

Poplar Bluff, Mo., 73 FLRA 628, 629 (2023).

22 Mot. at 4-5.

23 Id. at 2, 4-5.

24 Exceptions Br. at 8.

25 Id. at 7-8 (citing U.S. DOJ, Fed. BOP, Fed. Corr. Complex, 

Terre Haute, Ind., 72 FLRA 711 (2022) (BOP)

(Chairman DuBester dissenting); U.S. Dep’t of VA, John J. 

Pershing VA Med. Ctr., 71 FLRA 947 (2020) (Pershing) 

(Member DuBester dissenting)).

26 Opp’n, Attach. 9, Union’s Arbitrability Br. at 11-12 (alleging 

the grievance was timely as a “continuing violation”); see also 

Grievance at 1 (grieving violations of a “continuing 

occurrence”).
73 FLRA No. 162 Decisions of the Federal Labor Relations Authority 829

Authority precedent it later cited in its exceptions; or claim 

that Article 15’s filing deadline has “no exceptions.”27 In 

fact, the phrase “continuing violation” does not appear 

anywhere in that brief. It was not until the later-filed 

merits briefs that the Agency directly challenged the 

continuing-violation theory. Even then, the Agency 

argued only that the Union failed to “prove” a continuing 

violation28—not that the continuing-violation theory is 

contrary to the parties’ agreement or law. 

The record demonstrates the Agency did not 

assert at arbitration that the parties’ agreement or law 

precluded the Arbitrator from applying the 

continuing-violation theory. As such, the Agency’s 

motion does not warrant reconsideration of Picatinny on 

this point.

Citing the Authority decisions it raised in its 

exceptions—but failed to raise to the Arbitrator—the 

Agency next contends the Authority erred by denying the 

remaining essence arguments.29 As noted above, by 

adopting the Union’s position on arbitrability, the 

Arbitrator applied the continuing-violation theory to find 

that certain of the alleged improper-staffing events 

occurred within twenty-one days of the Union’s 

grievance.30 In Picatinny, the Agency provided no basis 

for finding the Arbitrator’s interpretation and application 

of Article 15 deficient, so the Authority denied that 

exception. The Agency’s attempt to relitigate that 

conclusion here does not establish extraordinary 

circumstances.31 

For the above reasons, we deny the motion. 

IV. Decision

We deny the Agency’s motion for 

reconsideration.

27 Exceptions Br. at 8.

28 Agency Merits Br. at 10 (emphasis added) (asserting it was 

“the Union’s burden to” establish the existence of a continuing 

violations, and stating, “It is true the Union alleged a continuing 

violation, but it is altogether another matter to prove one.”). 

29 Mot. at 5-6 (citing BOP, 72 FLRA at 712; Pershing, 71 FLRA 

at 948-49). 

30 Picatinny, 73 FLRA at 702.

31 See AFGE, Loc. 2338, 71 FLRA 644, 645 (2020) (denying 

motion for reconsideration where moving party was attempting 

to relitigate Authority’s previous denial of essence exception).