38:0946(80)CA - - Justice and INS and AFGE, National Border Patrol Council - - 1990 FLRAdec CA - - v38 p946

[ v38 p946 ]
The decision of the Authority follows:

38 FLRA No. 80










(Charging Party/Union)


(37 FLRA No. 111 (1990))


December 14, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a request filed by the Respondents seeking reconsideration of the Authority's Decision and Order in U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA No. 111 (1990) (DOJ). The Union filed an opposition to the request and the Respondents filed a response to the Union's opposition. For the reasons set forth below, the Respondents' request for reconsideration is denied.

II. Background

In its decision in DOJ, the Authority dismissed an unfair labor practice complaint that charged the Respondents with the following violations of the Federal Service Labor-Management Relations Statute (the Statute): a refusal to implement provisions of a collective bargaining agreement; interference with the bargaining relationship of the parties at the level of exclusive recognition; and the disapproval of a negotiated provision, captioned by the parties as Article 32, Section B. In reaching its conclusion that no unfair labor practices were committed, the Authority rejected a threshold argument made by the Respondents that the Union's unfair labor charge had not been timely filed.

Also in its decision, the Authority addressed the following matters: the authority of the Federal Service Impasses Panel (the Panel) to order parties to interest arbitration to resolve a negotiation impasse; the authority of an agency head, under section 7114(c) of the Statute, to review provisions directed to be included in an agreement as a result of interest arbitration; and the appropriate mechanism for challenging provisions imposed through interest arbitration.

As to these issues, the Authority reaffirmed its view that section 7119(b)(1) of the Statute empowers the Panel to direct parties to the use of interest arbitration, and that such arbitration may be conducted by a private, outside arbitrator, or by a Panel Member or the Panel staff itself. The Authority concluded, however, that when interest arbitration results from Panel directed interest arbitration under section 7119(b)(1) of the Statute, an agency head retains the right to review the imposed provisions in accordance with section 7114(c) of the Statute. The Authority stated that it would no longer adhere to a statutory interpretation in which interest arbitration awards, issued pursuant to section 7119(b)(1), were viewed as arbitration awards to which exceptions could be filed under section 7122(a) of the Statute. The Authority also indicated that it would no longer follow prior Authority decisions limiting the right of an agency head to conduct a review of such awards under section 7114(c).

Applying those principles to the case, the Authority found that the agency head was authorized to review the provisions that had been directed to be included in the parties' agreement by the interest arbitrator, and that such disapproval could be challenged appropriately through the filing of an unfair labor practice charge. The Authority then addressed the merits of the unfair labor practice complaint and concluded, as noted above, that the Respondents' conduct did not violate the Statute.

The Authority also addressed a claim made by the Respondents that there was an outstanding agency head disapproval that was still valid as to matters that had not been resolved in earlier proceedings before the Authority. The earlier proceedings referred to involved exceptions to the award of the interest arbitrator, filed by both the agency and the Union, and a petition for review of the agency head's disapproval of various provisions contained in the award. The Authority had resolved the exceptions in United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 31 FLRA 1123 (1988) (Immigration and Naturalization Service). The petition for review had been dismissed in American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, 31 FLRA 1193 (1988) (Department of Justice).(1)

In response to this argument, the Authority stated that even if there were matters that had been disapproved by the agency head, but not addressed by the Authority in Department of Justice, neither the General Counsel nor the Union contended that those matters were still in dispute. Consequently, the Respondents' contention was dismissed.

Finally, the Authority noted that, as the only provision in dispute was Article 32, Section B, and as the negotiability of that provision had been resolved by finding that the agency head's disapproval was proper, there were no outstanding issues to be resolved in the unfair labor practice proceeding. Accordingly, the Authority stated that it was the parties' prerogative to decide what action they wished to take, including renegotiations over the properly disapproved Article 32, Section B, in order to finalize their agreement.

III. Request for Reconsideration; Opposition to Request; and Response to Opposition

A. Request for Reconsideration (2)

The Respondents state that "although the Authority technically ruled in favor of the Respondents, . . ." reconsideration is sought because the Authority's decision precludes judicial review of the negotiability determinations made in Immigration and Naturalization Service. Request at 1. The Respondents argue that the Authority should have resolved the Union's petition for review in Department of Justice in order for judicial review to be available. As they argued in DOJ, the Respondents contend that the agency head's disapproval, dated October 23, 1987, which gave rise to the petition for review, is still valid. To resolve these matters and to preserve the agency's right to judicial review, the Respondents request the Authority to reverse its dismissal of Department of Justice and reinstate the petition for review.

Alternatively, the Respondents argue that: (1) the interest arbitrator had no jurisdiction to impose his award insofar as the Panel was not empowered to require the parties to submit their dispute to an outside arbitrator; and (2) the unfair labor practice charge was not timely filed. The Respondents concede that the Authority acknowledged and ruled on these arguments in DOJ, with one exception, and that it is merely disagreeing with the Authority's disposition of the arguments. As to the one exception, the Respondents assert that the Authority noted but failed to rule on two secondary arguments relating to the interest arbitrator's lack of jurisdiction. The Respondents, therefore, request reconsideration in order for the Authority to address these two arguments.

B. Union's Opposition

The Union argues that the request for reconsideration should be denied, noting that the issues raised by the Respondents were previously decided by the Authority in DOJ. The Union also opposes the Respondents' request that the petition for review in Department of Justice be reinstated. The Union states that it has not requested, and does not now request, that the Authority rescind its dismissal of the petition for review.

The Union also argues that the Authority's decision in DOJ disposed of all issues relative to the interest arbitration award, and that any assertions that language directed to be included in the agreement is contrary to law can be grieved through the negotiated grievance procedure.

C. Response to the Opposition

In response to the Union's assertion that it has not requested, and is not requesting, the Authority to rescind its dismissal of the petition for review in Department of Justice, the Respondents acknowledge that the Authority "can refuse to reinstate the negotiability appeal now that the Union has effectively requested that the Authority not reinstate it." Respondents' Response at 2 (footnote omitted). The Respondents also acknowledge that a Union request that the petition for review not be reinstated would be granted and, further, that the dismissal of the petition for review "would then be valid under the power the Authority has to approve a request for withdrawal of any case." Id. at n.2.

IV. Analysis and Conclusions

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

First, the Respondents argue, as they did in DOJ, that the agency head disapproval is still valid and that the Authority must reinstate the petition for review in Department of Justice in order to resolve the negotiability issues raised therein and to permit either party to seek judicial review. In response to the Union's request that the Authority not reinstate the petition for review, however, the Respondents concede that an Authority decision not to reinstate the petition would "be valid. . . ." Respondents' Response at n.2. Consistent with section 7117 of the Federal Service Labor-Management Relations Statute, a petition for review may be filed only by a union. The Union here does not desire reinstatement of its petition for review. Consequently, as acknowledged by the Respondents, there is no basis on which to reinstate the petition for review and the Respondents' request that we do so is denied.

Second, the Respondents concede that the Authority acknowledged all the arguments previously raised by the Respondents, but now contend that the Authority failed to rule on two secondary arguments pertaining to the arbitrator's asserted lack of jurisdiction. We disagree.

With regard to the Respondents' secondary arguments, we note that in DOJ we found that the Panel was empowered to direct the parties to outside interest arbitration under section 7119(b)(1) of the Statute. Indeed, the Respondents state that the Authority "understood the Respondents' position on this issue, and fully discussed it[.]" Respondents' Request at 3. The Respondents state further that they "merely respectfully disagree with th