45:0525(45)CA - - Treasury, IRS, Austin Compliance Center, Austin, TX and NTEU Chapter 247 - - 1992 FLRAdec CA - - v45 p525



[ v45 p525 ]
45:0525(45)CA
The decision of the Authority follows:


45 FLRA No. 45

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

AUSTIN COMPLIANCE CENTER

AUSTIN, TEXAS

(Respondent/Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 247

(Charging Party/Union)

6-CA-90506

(44 FLRA 1306 (1992))

ORDER DENYING MOTION FOR RECONSIDERATION

July 16, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Respondent's motion for reconsideration of our decision in 44 FLRA 1306 (1992). Neither the General Counsel nor the Charging Party filed a response to the motion.

For the following reasons, we conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Respondent's motion for reconsideration.

II. The Decision in 44 FLRA 1306

In 44 FLRA 1306, we adopted the Judge's conclusions that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to comply timely with an arbitration award when it unreasonably delayed offering to reinstate an employee and unreasonably delayed delivering the employee's backpay check, and section 7116(a)(1) and (8) of the Statute by denying the employee backpay for a specific 2-week period.

We also concluded, contrary to the Judge, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to comply timely with the arbitration award when it unreasonably delayed processing the employee's backpay claim. The Respondent argued that it was unable to begin processing the employee's backpay claim until the employee had been reinstated--October 8, 1989. We rejected that argument and found that nothing in the record indicated that the Respondent was unable to begin gathering information on the employee's interim employment as of July 31, 1989--the date the award became final. Further, in view of the Judge's conclusion that the Respondent unreasonably and intentionally delayed offering to reinstate the employee, we stated that we would "not permit the Respondent to benefit from that delay or use that delay as a basis for failing to begin processing the employee's backpay claim until after the date of reinstatement." 44 FLRA at 1314. Rather, we concluded that because of the Respondent's unlawful refusal to reinstate the employee and its unexplained failure to gather information on the employee's interim employment in a timely manner, the Respondent's intentional failure to begin processing the backpay claim until after the date of reinstatement was unreasonable and violated section 7116(a)(1), (5), and (8) of the Statute.

Further, we concluded, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing and refusing to comply with the backpay portion of the arbitration award when it improperly deducted from the backpay award the employee's overtime earnings from his interim job at the Circle-K Corporation and the employee's earnings from his "moonlighting" job at a Wal-Mart store. In reaching this conclusion, we found that the arbitration award at issue unambiguously required the Respondent to give the employee the full amount of backpay that he was entitled to receive under the Back Pay Act and its implementing regulations. See id. at 1316. Upon examining the Respondent's method of calculating backpay, we determined that the Respondent had not calculated the employee's backpay entitlement consistent with the Back Pay Act and its implementing regulations because the Respondent should not have made the deductions noted above.

Specifically, we found that with respect to the employee's interim overtime earnings, the Respondent could deduct from an award of backpay "the amount of overtime earned [in interim employment] to the extent that the employee would have worked that amount of overtime in the [A]gency job." 44 FLRA at 1318. We found that "[i]f the employee would not have worked overtime in the [A]gency job or would have worked less overtime in the [A]gency job, the [Respondent could] not deduct from the employee's backpay award the excess amount of interim overtime wages that the employee earned." Id. We based these findings on the wording of the Back Pay Act and its implementing regulations and on the interpretation of those provisions by the Merit Systems Protection Board (MSPB) since its decision in Phelps v. Department of Labor, 35 M.S.P.R. 273 (1987) (Phelps). We stated that this position was consistent with decisions by courts and the National Labor Relations Board (NLRB) in the private sector. Further, we noted that, by its terms, the Federal Personnel Manual did not apply to interim overtime earnings. As there was no indication that the employee here would have worked overtime for the Respondent, we concluded that the Respondent improperly deducted the employee's interim overtime earnings from his backpay entitlement.

With respect to the employee's "moonlighting" earnings from his job at Wal-Mart, we found that, based on the wording of the backpay regulations and on decisions by a Federal district court and the MSPB, the Respondent could not deduct "moonlighting" earnings from the employee's backpay entitlement if the employee could have held the "moonlighting" job while working for the agency. See 44 FLRA at 1321-22 (citing Payne v. Panama Canal Co., 428 F. Supp. 997, 1001 (D.C. Canal Zone 1977) (Payne), rev'd on other grounds, 607 F.2d 155 (5th Cir. 1979) and Broadnax v. United States Postal Service, 35 M.S.P.R. 219, 228 (1987) (Broadnax)). We stated that this position was consistent with decisions by courts and the NLRB in the private sector. Further, we found that, by its terms, the FPM did not require the Respondent to deduct the employee's "moonlighting" earnings because those earnings did not act "as a substitute for" the Agency job. Id. at 1323 (quoting FPM Supp. 990-2, Book 550, Subchapter S8-7c(1) (paragraph 2)). We adopted the Judge's finding, which was not excepted to by the parties, that the employee's "second, or 'moonlighting,' job" at Wal-Mart could have been "held simultaneously with his government job." Id. at 1321 (citing Judge's Decision at 11). Therefore, as the employee in this case worked in a "moonlighting" job for Wal-Mart which he could have held while working for the Respondent, we concluded that, under the Back Pay Act and its implementing regulations, the Respondent improperly deducted the employee's "moonlighting" earnings from the employee's backpay entitlement.

Having found that the Respondent's actions were inconsistent with the Back Pay Act and its implementing regulations, we found that the Respondent disregarded the backpay portion of the arbitration award and thereby failed to comply with the award in violation of section 7116(a)(1) and (8) of the Statute. To remedy the Respondent's unfair labor practices, we modified the Judge's recommended Order and Notice to reflect that the Respondent failed to comply timely with the arbitration award by unreasonably delaying the processing of the employee's backpay claim. Further, we required the Respondent to reimburse the employee, with interest to the date of payment, for any overtime and "moonlighting" earnings that were improperly deducted from the backpay award.

III. The Respondent's Motion for Reconsideration

The Respondent requests that we reconsider our finding that the Respondent "committed an unfair labor practice by failing to timely process the employee's backpay check." Motion for Reconsideration at 3. The Respondent argues that it was "impossible" to process the employee's backpay claim until the employee had been restored to duty because "[o]nly after reinstatement can an agency determine how much total backpay is owed to the employee and begin the process of offsetting outside earnings." Id. at 3, 4. According to the Respondent, it could not have gathered information on the employee's outside employment prior to reinstatement because "the employee was not yet back on the rolls at that time and the Respondent Agency was not in contact with the employee." Id. at 4. The Respondent further argues that "there is a reasonable explanation" for why it took the Respondent from July 31 to November 11 to forward the relevant papers for the employee's backpay calculation. Id. In this regard, the Respondent notes that "the employee was not contacted regarding reinstatement until September 21, 1989, and did not physically return to work until October 8, 1989." Id. The Respondent claims that the "minor delay after that time" may be explained by the "work involved in preparing the backpay package" and should not be considered an unfair labor practice in light of Department of Health and Human Services and Social Security Administration, 22 FLRA 270 (1986) (SSA), "where a one year delay in processing a backpay award was found reasonable." Id. at 4, 5.

The Respondent also requests that we reconsider our finding that the Respondent failed to comply with the Back Pay Act and its implementing regulations. As a preliminary matter, the Respondent objects to what it deems the Authority's inappropriate interpretation of an arbitration award which, under section 7121(f) of the Statute, is "not appealable on the merits . . . ." Id. at 6. On the merits, the Respondent argues that the Authority's decision in 44 FLRA 1306 "create[s] new rules for compliance with arbitration awards ordering the payment of backpay" and that the Respondent did not have the benefit of this decision when calculating backpay in early 1990." Id. at 7. The Respondent maintains that it "merely had the Backpay [sic] Act, the implementing regulations and the Federal Personnel Manual" and objects to the Authority's reliance on "previously unstated rules on backpay computations[,]" including a case "on backpay [that] had not even been decided before [the] Respondent made the backpay calculations." Id. at 7, 8 (citing Blackmer v. Department of the Navy, 47 M.S.P.R. 624 (1991) (Blackmer)).

The Respondent also requests that we reconsider our findings on "moonlighting" earnings because "the issue was not properly presented to the Administrative Law Judge." Id. at 9 (citing 5 C.F.R. ° 2429.5). Moreover, the Respondent objects to the Authority's finding that the employee's "job at Wal-Mart was a 'moonlighting' job which [the employee] could have held while he worked for the [Respondent]." Id. at 11 (emphasis in original). The Respondent acknowledges that "[t]he support for this holding is a finding by [the Judge]" that was not excepted to by the parties. Id. However, the Respondent maintains that "there was no reason for the Respondent to file exceptions to this finding . . . ." Id. The Respondent argues that, contrary to the Judge's finding, "the evidence shows that [the employee] would have not been able to work at Wal-Mart at the same time he was employed by the [Respondent]." Id.

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. For the following reasons, we conclude that the Respondent has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 44 FLRA 1306.

We reject the Respondent's argument that it did not commit an unfair labor practice by failing to timely process the employee's backpay claim. The Respondent's argument that it could not have gathered information on the employee's outside employment prior to reinstatement because "the employee was not yet back on the rolls at that time" constitutes nothing more than disagreement with our decision and an attempt to relitigate the merits of the case. Motion for Reconsideration at 4. This argument was addressed and rejected in 44 FLRA 1306. See 44 FLRA at 1315. Moreover, the Respondent's statement that it "was not in contact with the employee" does not explain why it failed to contact the employee or the Union when the award became final and why it failed to begin gathering information on the employee's interim employment at that time. Id. We note the Respondent's claim that it "was seeking to have the award appealed to the courts." Id. However, no such appeal was ever filed. Finally, the delay in the instant case is distinguishable from the delay in SSA. Unlike the Respondent in this case, the agency in SSA "did take some steps to expedite" effectuating the award and "did act promptly enough in starting up the process" of complying with the award. SSA, 22 FLRA at 283, 284. Accordingly, these arguments fail to demonstrate extraordinary circumstances within the meaning of section 2429.17 of our Rules and Regulations. See, for example, U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 39 FLRA 1238 (1991).

We also reject the Respondent's arguments concerning its compliance with the Back Pay Act and the implementing regulations. The Respondent claims that the Authority may not interpret or order compliance with an arbitration award involving a matter referred to in section 7121(f) of the Statute because such an award is "not appealable on the merits . . . ." Motion for Reconsideration at 6. The Authority rejected such a contention in SSA and we reject it here. See SSA, 22 FLRA at 271 n.*. The Respondent also claims that the Authority should not have relied on "previously unstated rules on backpay computations[,]" including a case "on backpay [that] had not even been decided before [the] Respondent made the backpay calculations." Id. at 7, 8 (citing Blackmer). In 44 FLRA 1306, the Authority reached its conclusion, in part, by analyzing the wording of the Back Pay Act and its implementing regulations--legal provisions that the Respondent acknowledges were binding at the time it calculated backpay in this case. The Authority also relied on interpretations of those provisions by the MSPB (in Phelps and Broadnax) and a Federal district court (in Payne) that were made well before the Respondent calculated backpay here. The MSPB's decision in Blackmer merely restates the rules articulated in Phelps and other earlier MSPB decisions, and our citation to Blackmer, or to any later cases that merely restate rules articulated in earlier decisions, does not constitute extraordinary circumstances warranting reconsideration of 44 FLRA 1306.

Finally, we reject the Respondent's arguments with respect to "moonlighting" earnings. Contrary to the Respondent's argument, we find that the issue of "moonlighting" earnings was presented in the proceedings before the Judge within the meaning of 5 C.F.R. ° 2429.5. The Union argued in its post-hearing brief that the Respondent improperly offset overtime wages and "wages the employee could have earned concurrent with the desired position." Union's Post-Hearing Brief at 22. To support its argument, the Union cited various court and NLRB decisions dealing with overtime and "moonlighting" earnings. See id. at 18-20. With respect to the latter, the Union referred to the "Moonlighting Rule." Id. at 18. Moreover, the Judge was aware of this issue and rendered findings specifically on it. See 44 FLRA at 1349, 1351 (where the Judge found that the employee's Wal-Mart job was a "moonlighting" job, but concluded that the "Moonlighting Rule" did not apply in this case). In these circumstances, we find that the issue of "moonlighting" earnings was clearly presented to the Judge. See Department of Veterans Affairs, Veterans Administration Medical Center, Veterans Canteen Service, Lexington, Kentucky, 44 FLRA 179, 186 (1992), petition for review filed as to other matters, No. 92-1185 (D.C. Cir. Apr. 24, 1992).

Further, we reject the Respondent's untimely exception to the Judge's factual finding that the employee's second, or "moonlighting," job "'could have [been] held simultaneously with his government job.'" 44 FLRA at 1321 (quoting Judge's Decision at 11). The Respondent acknowledges that it did not file an exception to this finding in the initial proceedings before the Authority. Section 2423.27(b) of the Authority's Rules and Regulations provides in part that any exception to a ruling, finding, or conclusion of the Administrative Law Judge "which is not specifically urged shall be deemed to have been waived." The Respondent does not contend that it was unable to except to the Judge's factual finding or that it now relies on evidence which was unavailable at the time of the initial proceedings. The Respondent argues only that "there was no reason for the Respondent to file exceptions to this finding . . . ." Motion for Reconsideration at 11. In these circumstances, we find that the Respondent's untimely exception to the Judge's factual finding does not constitute extraordinary circumstances warranting reconsideration of our decision.

In summary, the Respondent has not established extraordinary circumstances warranting reconsideration of our decision in 44 FLRA 1306. Accordingly, we will deny the Respondent's motion for reconsideration.

V. Order

The Respondent's motion for reconsideration of the Authority's Decision and Order in 44 FLRA 1306 is denied.