47:0475(40)AR - - Treasury, Customs Service and NTEU - - 1993 FLRAdec AR - - v47 p475
[ v47 p475 ]
The decision of the Authority follows:
47 FLRA No. 40
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
NATIONAL TREASURY EMPLOYEES UNION
(46 FLRA 1433 (1993))
ORDER DENYING MOTION FOR RECONSIDERATION
April 20, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This Matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in 46 FLRA 1433 (1993). The Union filed an opposition to the motion. Because the Agency fails to establish that extraordinary circumstances exist that warrant reconsideration of our decision, we will deny the motion.
II. Arbitrator's Award and the Decision in 46 FLRA 1433
Our decision in 46 FLRA 1433 reviewed Agency exceptions to a supplemental award issued by the Arbitrator. The Arbitrator issued the supplemental award in response to our decision in 43 FLRA 921 (1992), in which we reviewed the Union's exceptions to the Arbitrator's original award in this case. Summaries of both decisions are set forth below.
A. 43 FLRA 921
In his original award, the Arbitrator determined that a grievance alleging that the Agency violated law and regulation by implementing the Coastwise Advanced Preliminary Entry (CAPE) program was not arbitrable.(1) The CAPE program changed the procedure by which vessels arriving in the United States from foreign ports to deliver cargo to more than one U.S. port are boarded by Customs Officers for certain verifications. Formerly, such vessels were boarded by Customs Officers at each port. In general, under CAPE, vessels are boarded only at the first port of entry into the United States.
On review of the Union's exceptions, the Authority was unable to determine whether the award was based on the Arbitrator's interpretation of the parties' collective bargaining agreement or on his interpretation of 5 U.S.C. &§ 7103(a)(9) of the Statute.(2) Accordingly, we remanded the award to the parties to obtain clarification from the Arbitrator as to the basis of his determination that the grievance was not arbitrable.
We noted that the statutory definition of "grievance" encompasses violations of any law affecting conditions of employment and that such laws are not limited to "'statutes that prescribe employee rights and benefits.'" 43 FLRA at 924 (citing National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Public Debt, 42 FLRA 1333, 1338 (1991)(Public Debt), petition for review filed sub nom. U.S. Department of the Treasury, Bureau of Public Debt v. FLRA, No. 91-1633 (D.C. Cir. Dec. 20, 1991)). We further noted that where the exercise of a management right under section 7106 of the Statute is challenged,(3) "the 'law' referenced in section 7103(a)(9) includes the 'applicable laws' referenced in section 7106(a)(2)." 43 FLRA at 924 (citing Public Debt, 42 FLRA at 1338).(4) We stated that the term "applicable laws" includes "'provisions of the United States Code or other lawfully enacted statutes.'" 43 FLRA at 924 (citing National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 389 (1991) (Treasury), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991).
Citing Public Debt and Treasury, we concluded that insofar as the Arbitrator's original award was "based on an interpretation of the scope of a grievance procedure permitted under the Statute, the award [was] deficient as inconsistent with the Statute." 43 FLRA at 925. We noted, however, that parties may agree to exclude any matter from the scope of a negotiated grievance procedure. As we were unable to determine whether the Arbitrator's original award was based on his interpretation of the parties' agreement or the Statute, we remanded the award to the parties to obtain clarification from the Arbitrator. We stated that, on remand, any dispute as to whether relevant statutes and regulations were "applicable laws" should be resolved consistent with our decision in Treasury. 43 FLRA at 925 n.5.
B. 46 FLRA 1433
Following the remand, the Arbitrator held an additional hearing and issued the supplemental award to which the Agency filed exceptions. It is our decision resolving the Agency's exceptions to the supplemental award which is the subject of the instant request for reconsideration.
On remand, the Arbitrator determined that the Union's grievance was arbitrable under the applicable provisions of the parties' collective bargaining agreement. Based on testimony elicited at the hearing, the Arbitrator concluded that the parties had intended their negotiated grievance procedure to be interpreted in the same manner as section 7103(a)(9)(C)(ii) of the Statute. Further, the Arbitrator applied our decisions in Public Debt and Treasury and concluded that 19 U.S.C. &§ 1448 was an applicable law within the meaning of section 7106 of the Statute.
Having concluded that the grievance was arbitrable, and that the statute in question was an applicable law, the Arbitrator concluded that the CAPE program violated 19 U.S.C. &§ 1448. The Arbitrator determined that the statute, "as written, plainly contemplates either preliminary or formal entry[;] [n]o third option is contemplated." 46 FLRA at 1436-37. The Arbitrator further found that, as a result of the Agency's actions, overtime earnings for Customs Inspectors were reduced. As his award, the Arbitrator sustained the grievance and directed the Agency to "'make the affected employees whole for loss of overtime.'" Id.
The Agency filed exceptions alleging that the supplemental award was contrary to law and regulation.(5) Specifically, as relevant here, the Agency argued that: (1) 19 U.S.C. &§ 1448 does not address coastwise vessels; (2) the award of backpay was contrary to the Back Pay Act; (3) the Arbitrator exceeded his authority by improperly reopening and modifying his original award; and (4) the award conflicted with the Agency's right, under section 7106 of the Statute, to determine its mission.
For reasons fully set forth in 46 FLRA 1433, the Authority rejected each of the Agency's contentions and, consequently, denied the Agency's exceptions to the supplemental award.
III. Request for Reconsideration
The Agency contends that the award and our decision in 46 FLRA 1433 are contrary to 19 U.S.C. &§ 1448. In this regard, the Agency argues that the Arbitrator and the Authority failed to give appropriate deference to the Agency's interpretation of 19 U.S.C. &§ 1448. The Agency further claims that it has consistently argued that 19 U.S.C. &§ 1448 applies only to vessels arriving directly from a foreign port and that it does not apply to coastwise vessels.
The Agency also argues that the award and the Authority's decision are contrary to section 7106(a)(1) of the Statute because they interfere with the Agency's right to determine its mission. In this regard, the Agency argues that part of its mission is to "'control, regulate, and facilitate the movement of persons, carriers, and commodities between the U.S. and other nations.'" Request at 10. The Agency contends that the determination as to how and when to inspect vessel manifests is an integral part of that mission and such a determination affects the budget and organization of the Agency by shifting the allocation of resources among different programs.
The Union argues that the Agency has not established extraordinary circumstances warranting reconsideration of the Authority's decision. The Union asserts that the Agency's arguments are essentially the same arguments made before the Arbitrator and the Authority. The Union also contends that, to the extent the Agency raises new arguments, the Authority must reject them because the Agency had ample opportunity to raise those issues previously.
V. 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 Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 46 FLRA 1433. Rather, we find that the Agency raised the same arguments in its exceptions which we considered and rejected in 46 FLRA 1433.
The Agency's assertion that 19 U.S.C. &§ 1448 does not apply to coastwise vessels was considered and addressed by the Authority in 46 FLRA 1433. In its exceptions, the Agency cited no authority for its interpretation of section 1448. The Agency again cites no authority for its interpretation in the request for reconsideration. Nothing in the Agency's argument, therefore, establishes that reconsideration of the Authority's findings and conclusions is warranted.
The Agency's argument that the award intereferes with its right to determine its mission was also considered and addressed by the Authority in 46 FLRA 1433. We reviewed the Arbitrator's findings and, noting that the Agency provided no supporting rationale or authority for its argument, found nothing in the award which would interfere wi