U.S. Department of the Treasury, Internal Revenue Service (Agency) and National Treasury Employees Union (Union)

[ v57 p592 ]

57 FLRA No. 112




0-AR-3351 REC
(57 FLRA 444 (2001))



November 27, 2001


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on the Agency's motion for reconsideration and request for a stay of the Authority's decision in 57 FLRA 444 (2001) (Chairman Cabaniss concurring). The Union filed an opposition to the motion.

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. We conclude that the Agency has failed to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Agency's motion and its request for a stay. [n2] 

II.     Decision in 57 FLRA 444

      In 57 FLRA 444, the Arbitrator found that the Agency's failure to compensate employees whose commute time increased as a result of a temporary assignment violated a provision of the parties' collective bargaining agreement authorizing compensation. In reaching this result, the Arbitrator addressed the stipu lated [ v57 p593 ] issue of whether application of the agreement provision to the employees' temporary assignment would violate law, rule, or regulation, including 5 C.F.R. § 551.422. The Arbitrator concluded that the agreement provision conflicted with law and regulation, including 5 C.F.R. § 551.422, but was nevertheless enforceable under the Portal-to-Portal Act, 29 U.S.C. § 254 (the Act), which contains exceptions to the general prohibition on compensation for commute time. [n3]  The Arbitrator found that the exception allowing compensation for commute travel where authorized by an express provision of a written contract was applicable here because the parties' agreement contained an "express provision" within the meaning of 29 U.S.C. § 254(b)(1).

      The Agency excepted to the award on the basis that it was contrary to law and failed to draw its essence from the agreement. [n4]  The Agency maintained that the agreement provision did not constitute an express provision within the meaning of the Act because it did not explicitly provide payment for travel. The Agency added that the Act's exceptions apply only to legal and enforceable contract provisions and that the agreement provision here contravened government-wide regulations that prohibit federal employees from being compensated for commute time.

      The Authority rejected the Agency's claim that the agreement provision did not constitute an "express provision." The Authority determined that the Agency failed to establish that the Arbitrator erred, as a matter of law, in finding that the agreement provision was an express provision under the Portal-to-Portal Act. In reaching this conclusion, the Authority found that nothing in § 254(b), or judicial opinions involving the Act, requires that a contract, custom or practice be set forth with any degree of precision or specificity.

      The Authority also found that § 2429.5 of its Regulations barred consideration of the Agency's claim that the agreement provision was not enforceable under 29 U.S.C. § 254(b) because it was contrary to 5 C.F.R. § 551.422(b). [n5]  The Authority stated that the Agency's contention that the agreement provision was not an "express provision," within the meaning of § 254(b), was predicated on the view that § 254(b) otherwise applied. The Authority found that the new argument, instead, was based on the Agency's contention that even if the requirements of § 254(b) were met, that section itself did not apply to the agreement provision. The Authority determined that this new claim could have been, but was not, raised before the Arbitrator and, therefore, it was not properly before the Authority. [n6] 

III.     Motion for Reconsideration

      The Agency contends that the Authority erred in refusing to consider the argument that the award violated 5 C.F.