United States, Department of Homeland Security, United States Customs and Border Protection, Port of Seattle, Seattle, Washington (Agency) and National Treasury Employees Union, Chapter 139 (Union)

[ v61 p85 ]

61 FLRA No. 16

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
UNITED STATES CUSTOMS
AND BORDER PROTECTION
PORT OF SEATTLE
SEATTLE, WASHINGTON
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 139
(Union)

0-AR-3785-REC
(60 FLRA 490 (2004))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

July 8, 2005

_____

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

I.      Statement of the Case

      This case is before the Authority on the Union's motion for reconsideration of the Authority's decision in 60 FLRA 490 (2004) (Chairman Cabaniss concurring) (Customs, Seattle, Wash.).

      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 Union has failed to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Union's motion.

II.     Decision in 60 FLRA 490

      This case arises out of a dispute stemming from the Agency's implementation in 2001 of its revised National Inspectional Assignment Policy (RNIAP) that replaced an earlier NIAP that had been negotiated and implemented in 1995. The 1995 NIAP provided for the local negotiation of matters set forth in § 7106(b)(1) of the Statute, including staffing levels and tours of duty at the local level. [n1] 

      As relevant here, a Local Inspectional Assignment Policy (LIAP) was negotiated by the parties at the local level for the Port of Seattle that "generally provided for a port-wide equalization of overtime, setting out procedures for assigning and canceling overtime so as to effectuate equalization of overtime." 60 FLRA at 490. Following the implementation of the RNIAP, the Agency implemented guidelines at the Port of Seattle, which changed provisions of the pre-existing Seattle LIAP concerning the port-wide equalization of overtime and the procedures for the assignment of and participation in overtime. A grievance was filed and submitted to arbitration, alleging that the Agency had committed an unfair labor practice by its refusal to negotiate over the local changes.

      The Arbitrator ruled that the Agency violated the Statute by not engaging in impact and implementation bargaining at the local level in the Port of Seattle. He concluded that the "Seattle Port Director was not excused from the obligation to give notice and the opportunity to bargain on the basis that the Agency had withdrawn its agreement to bargain local matters locally." Award at 17-18. As a remedy, the Arbitrator concluded that a status quo ante remedy was appropriate and that the Agency was liable for backpay for all employees affected by the adverse monetary impact of the Agency's failure to bargain on the local changes in the Port of Seattle.

      The Authority found that, consistent with NTEU, Chapter 137, 60 FLRA 483 (2004) (Chairman Cabaniss concurring), the Agency did not have any obligation to bargain at the local level over the changes in overtime assignment practices at the Port of Seattle, and set aside the Arbitrator's award finding otherwise as deficient. The Authority found that under section 3 of the lawfully implemented RNIAP, the Agency terminated its obligation to bargain at the local level over inspectional assignment matters. [n2]  In reaching this conclusion, the Authority explained that the statutory bargaining obligation with respect to inspectional assignment matters resides at the level of exclusive recognition, that is, at the national level. The Authority noted that under Authority precedent, it is well established that there is no statutory obligation to bargain below the level of recognition. The Authority further explained that consistent with the parties' ability to negotiate over permissive subjects of bargaining, the parties at the national level agreed to negotiate at levels below the level of exclusive [ v61 p86 ] recognition -- that is, at local levels -- over LIAPs that addressed staffing practices based on the specific needs of each port. 60 FLRA at 493.

      Further, the Authority found that when the parties' National Labor Agreement (NLA) expired in 1999, either party was free to lawfully terminate permissively negotiated matters. The Authority held that the Agency acted lawfully in section 3 of the RNIAP by terminating its permissively negotiated obligation under Article 37 of the expired NLA and the NIAP to bargain at the local level over inspectional assignment matters. Accordingly, the Authority found that the Arbitrator's award finding a violation of the Statute for not engaging in local bargaining over the changes at the Port of Seattle was deficient as contrary to law.

III.     Motion for Reconsideration

      The Union contends that extraordinary circumstances are present that warrant reconsideration of the Authority's decision. First, the Union maintains that reconsideration is warranted since the Authority failed to consider and to defer to the Arbitrator's factual findings that: (1) Article 37 of the parties' expired NLA requires local bargaining; and (2) neither the August 2, 2001 transmittal letter nor the RNIAP "provided legally sufficient notice of intent to terminate [Article 37]" and the Agency's obligation to bargain at the local level concerning changes in inspectional assignments. Motion at 1. The Union maintains that "[i]n reversing [the Arbitrator], the Authority did not consider his factual findings and conclusions of law but instead relied on findings and conclusions of [the Arbitrator] in NTEU, Chapter 137 . . . involving similar issues." Id. According to the Union, the Authority's failure to consider the Arbitrator's findings and conclusions "on critical issues constitutes legal error." Id.

      Second, the Union argues that the Authority "misstate[d] the controlling issue in this case" by considering only the Agency's obligation to bargain at the local level concerning inspectional overtime assignment matters at the Port of Seattle, and erred in concluding that the Agency did not violate the Statute. Id. at 21. The Union maintains that the Arbitrator stated the issue broadly as whether "the Agency violate[d] applicable law when it unilaterally changed conditions of employment and refused to negotiate with the Union [.]" Id at 21-22 (citing Award at 2-3). Further, the Union maintains that although its request to bargain was made at the local level "because that was the level at which notice was provided, NTEU did not insist [on] bargaining at the local level." Id. at 22. Moreover, the Union maintains that the Arbitrator's conclusion that the Agency violated the Statute was "not premised upon a finding that the Agency had a duty to bargain at the local level." Id. at 23 (citing Award at 20). The Union maintains that "the uncontradicted record establishes that the Agency committed an unfair labor practice by failing to provide notice at the level of recognition of the Seattle changes and by refusing to bargain over those changes." Id. at 24.

IV.      Agency's Opposition to Union's Motion

      The Agency maintains that the Union's motion should be denied as the Union has failed to demonstrate extraordinary circumstances warranting reconsideration of the Authority's decision. The Agency maintains that the Authority "appropriately ruled that the Agency did not have an obligation to bargain over inspectional assignments in the Port of Seattle." Opposition at 1. The Agency further contends that "[a]fter the implementation of the revised NIAP, there was no further obligation to bargain at all, at either the local or national level, over future inspectional assignment matters taken in compliance with the revised NIAP." Id. at 2. (emphasis omitted). Also, the Agency maintains that Section 3 of the RNIAP "superseded all prior agreements, policies, and practices, national or local, which would clearly encompass the [Port of Seattle] assignment in this case." Id.

V.     Analysis and Conclusions

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Wash., D.C., 56 FLRA 935, 936 (2000) (IRS). [ v61 p87 ]

      The Authority has found extraordinary circumstances to exist in the following situations: (1) where an intervening court decision or change in the law affected dispositive issues; (2) where evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995). The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See IRS, 56 FLRA at 936.

      As to the Union's first claim, we conclude that the Union has failed to establish that the Authority erred by not deferring to the Arbitrator's findings that the Agency did not provide sufficient notice to terminate its obligation to bargain at the local level over the change in assignment policy at the Port of Seattle. Contrary to the Union's assertions, it is a question of law, not a factual one, as to whether Section 3 of the lawfully implemented RNIAP terminated the Agency's permissively negotiated obligation to bargain at the local level over inspectional assignment matters under Article 37 of the parties' expired NLA. In NTEU, Chapter 137, the Authority found that the "[b]y its terms, section 3 established the RNIAP as the governing policies and procedures with respect to inspectional assignment matters `over any and all other agreements' at the local level, and terminated the Agency's obligation to bargain at the local level over such matters." 60 FLRA at 494. In so doing, the Authority found, as a matter of law, that Section 3 had the legal effect of terminating the Agency's obligation to bargain at the local level over inspectional assignment matters under Article 37 of the parties' expired NLA. As such, the Authority was not required to defer to the Arbitrator's contrary findings on this legal question.

      In Customs Service, 59 FLRA 703, the Authority also concluded, as a matter of law, that the Agency's implementation of the RNIAP was lawful. In subsequent related cases, NTEU, Chapter 137, 60 FLRA 483; Customs, Seattle, Wash., 60 FLRA 490; and United States Dep't of Homeland Sec., United States Customs & Border Prot., 60 FLRA 496 (2004) (Chairman Cabaniss dissenting), the Authority similarly did not consider or defer to arbitrators' findings on this legal issue.

      Accordingly, we find that the Union's claim -- that the Authority must defer to the Arbitrator's findings that the RNIAP did not terminate the Agency's obligation to bargain at the local level under Article 37 -- does not establish extraordinary circumstances warranting reconsideration of the Authority's decision.

      As to the Union's second claim, the Union has failed to establish that the Authority erroneously concluded that the scope of the issue before the Arbitrator was limited to the Agency's obligation to bargain at the local level, as opposed to the national level as well. As the Union notes, the Arbitrator framed the issue at the outset of his award as whether "the Agency violate[d] applicable law when it unilaterally changed conditions of employment and refused to negotiate with the Union[.]" Award at 3. However, the Arbitrator addressed and resolved the scope of the Agency's bargaining obligations with the Union in terms of the Agency's obligation to bargain at the local level over the change at the Port of Seattle. As relevant here, the Arbitrator addressed and rejected the Agency's claims that "its failure to engage in [i]mpact and [i]mplementation bargaining at the local (Seattle) level was not required" since the local changes were "covered-by" the RNIAP. Id. at 12. Next, the Arbitrator addressed and rejected the Agency's claim that "it had no duty to bargain locally because the level of recognition exists at the [n]ational level[,]" and that the RNIAP rescinded "any local bargaining obligation[.]" Id. at 15. In this regard, the Arbitrator found that Article 37 of the parties' expired NLA required local level bargaining and that the Agency failed to provide specific notice revoking its local bargaining obligations under Article 37. Id. at 15-18. The Arbitrator concluded that the "Seattle Port Director was not excused from the obligation to give notice and the opportunity to bargain on the basis that the Agency had withdrawn its agreement to bargain local matters locally." Id. at 17-18. Thus, the award resolved the issue of the Agency's obligation to bargain at the local level.

      Moreover, the Arbitrator's resolution of the grievance on the basis of the Agency's obligation to bargain at the local level was consistent with the Union's claims and arguments to the Arbitrator concerning the Agency's failure to bargain with the Union at the local level. In this respect, the Union noted that:

The Agency does not deny that it eliminated existing negotiated policies and procedures without affording NTEU, Chapter 139, the employees' exclusive representative at the Port of Seattle, the opportunity to negotiate over the changes. Rather, Customs has raised numerous affirmative defenses based upon, or relating to, the contention that the revised NIAP . . . immunizes [ v61 p88 ] the Agency from statutory bargaining requirements and therefore shields it from liability. . . . [T]he instant dispute involves the actual elimination of longstanding negotiated local procedures accompanied by an outright refusal to negotiate.

Union's Brief at 22-23, 32. Further, in its brief to the Arbitrator as well as opposition to the Agency's exceptions, the Union focused on the Agency's obligation and failure to bargain the impact and implementation of the changes at the local level, stating that:

There is no notice of rescission of Article 37, Section 6, providing for local bargaining, in evidence in this case; Customs provided notice only that it did not intend to be bound by previous agreements regarding management rights set forth in Section 7106(b)(1). Thus, Customs remains bound to provide local notice and impact and implementation bargaining for changes at the local level by Article 37[.]

Union's Brief at 39; Union's Opposition at 42. As relevant here, we note that the Union stated in its brief to the Arbitrator and opposition to the Agency's exceptions that the Agency had not provided notice of the changes to the Union at the national level. However, such statements were made in support of the Union's primary claim that the Agency had not rescinded its obligation to bargain at the local level over the changes at the Port of Seattle. Union's Brief at 34 n.25, 35 n.26; Union's Opposition at 38 n.28. As such, these statements do not demonstrate that the Union has met the high burden of establishing that reconsideration is warranted of the Authority's finding that the case "concerns solely the Agency's obligation to bargain at the local level regarding the assignment-related changes made at the Port of Seattle." [n3]  60 FLRA 494.

      In sum, the Union has failed to establish extraordinary circumstances warranting reconsideration of the Authority's decision. Accordingly, we deny the Union's motion.

VI.     Order

      The Union's motion for reconsideration is denied.



Footnote # 1 for 61 FLRA No. 16 - Authority's Decision

   In United States Dep't of the Treasury, Customs Service, Wash., D.C., 59 FLRA 703 (2004) (Member Pope concurring) (Customs Service), petition for review denied sub nom. NTEU v. FLRA, No. 04-1137 (D.C. Cir. July 8, 2005), the Authority concluded that the Agency's implementation of the RNIAP was lawful.


Footnote # 2 for 61 FLRA No. 16 -