United States, Department of the Treasury, Internal Revenue Service, Washington, D.C. (Agency) and National Treasury Employees Union (Union)

[ v61 p352 ]

61 FLRA No. 64

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-3889
(60 FLRA 966 (2005))

_____

ORDER DENYING
MOTION FOR RECONSIDERATION

October 24, 2005

_____

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

I.      Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in 60 FLRA 966 (2005). The Agency has filed a request pursuant to § 2429.26 of the Authority's Regulations for permission to file an opposition to the Union's motion and has included the opposition with its request.

      We conclude that the Union has failed to establish that extraordinary circumstances exist that justify reconsideration of the Authority's decision in 60 FLRA 966. Accordingly, we deny the Union's motion for reconsideration.

II.      Decision in 60 FLRA 966

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement by issuing a proposed notice of a reduction-in-force (RIF) before it became necessary. He ordered the Agency to rescind the notice and reissue it when a RIF is appropriately found to be necessary.

      The Agency filed exceptions to the award and the Union filed an opposition to the exceptions. The parties' filings reflected that the Agency had determined that accomplishing the disputed work in-house with reduced staffing would be more economical than having the work performed by contractors and that a RIF was [ v61 p353 ] necessary. The parties then engaged in bargaining over procedures and appropriate arrangements, and the Union specifically notified the Agency that it would not enforce the Arbitrator's order to rescind the disputed notice and reissue the notice when appropriate. According to the parties, the negotiations resulted in execution of a complete agreement resolving the RIF. See Agency's Exceptions at 5-6, 18-19; Union's Opposition at 30-31.

      In its exceptions to the award, the Agency expressly argued that in view of the post-award actions, the Arbitrator's remedy was no longer appropriate. See Agency's Exceptions at 18-19. In its opposition to the Agency's exceptions, the Union specifically conceded that the Arbitrator's remedy had been superseded by subsequent events, but maintained that the award constituted a binding precedential interpretation of Article 19 of the collective bargaining agreement. See Union's Opposition at 30-31.

      Based on the parties' arguments, the Authority determined in 60 FLRA 966 that the Arbitrator's award was moot and set it aside. We explained that the award was specifically limited to the one, disputed RIF. We noted that the parties' subsequent bargaining and agreement fully resolved the disputed RIF and ruled that no cognizable legal interest remained in the dispute. We rejected the Union's claim that the potential precedential effect of the Arbitrator's interpretation of Article 19 required us to resolve whether the interpretation was deficient. We emphasized that the award was based solely on the specific facts of this case and that this case had been fully resolved.

III.      Motion for Reconsideration

      The Union asserts that reconsideration is warranted "for a variety of reasons." Motion at 7th unnumbered page. The Union first asserts that "[r]econsideration is necessary because the Authority made its decision sua sponte[.]" Id. at 8th unnumbered page. The Union maintains that the "FLRA declared this award moot even though neither party had placed that argument before it." Id. The Union argues that it has a property interest in "a `final and binding' arbitration decision" and that the Authority's sua sponte decision denied it "basic due process[.]" Id. at 9th unnumbered page.

      The Union also asserts that reconsideration is necessary because the Authority erred in determining that the award was moot when arbitration awards are precedential under the parties' agreement. In this regard, the Union asserts that the Authority should not have set aside the award on the ground that it was moot without issuing a show cause order, remanding the matter to the Arbitrator, or modifying the award's remedy.

      The Union finally asserts that reconsideration is necessary because the Authority's decision conflicts with Authority case precedent. The Union maintains that the Authority has consistently held that an arbitration award is not moot when the violations that were the subject of the grievance may recur. The Union argues that in this case, it is likely that the Agency will violate Article 19 in the future. The Union also maintains that in unfair labor practice cases, the case is not moot when other remedies, such as a cease and desist order and the posting of a notice, remain viable. The Union notes that as part of this case, it alleged a violation of § 7116(a)(1) and (5) of the Statute, but that the Arbitrator "did not clearly address th[is] issue." Id. at 15th unnumbered page. The Union asserts that the Authority should "order the case remanded for a resolution of the issues the arbitrator pledged to address." Id.

      The Agency contends that the Union has failed to establish any extraordinary circumstances warranting reconsideration of the Authority's decision. The Agency asserts that the Authority acted correctly in determining that the award should be set aside because post-award events had rendered the award moot.

IV.     Analysis and Conclusions

      As an initial procedural matter, we grant the Agency's request to file an opposition and we consider the Agency's opposition. See Library of Congress, 60 FLRA 939, 939 n.2 (2005) (Authority practice is to grant requests to file oppositions to motions for reconsideration).

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. A party requesting reconsideration bears the "heavy burden" of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, 54 FLRA 9, 12 (1998). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision and when the Authority erred in its remedial order, process, conclusion of law, or factual finding. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995). [ v61 p354 ] However, the Authority has uniformly held that mere disagreement with the conclusions reached by the Authority does not constitute extraordinary circumstances warranting reconsideration. See, e.g., AFGE, Council 170, Local 2128, 59 FLRA 1 (2003).

      For the reasons that follow, we find that the Union has failed to satisfy the heavy burden of establishing that extraordinary circumstances exist to justify reconsideration. Accordingly, we deny the Union's motion for reconsideration.

      We reject the Union's claim that we considered the issue of mootness sua sponte. The Agency expressly argued in its exceptions to the award that in view of post-award actions, the Arbitrator's remedy was no longer appropriate. See Agency's Exceptions at 18-19. The Union, in its opposition to the Agency's exceptions, specifically conceded that the remedy had been superseded by subsequent events. See Union's Opposition at 30-31. Thus, the parties themselves in their filings with the Authority raised the issue of whether, as the result of post-award actions, any cognizable interest remained in the dispute. Accordingly, our ruling that the award was moot responded directly to arguments made by both parties. We did not raise the issue of mootness sua sponte[n1] 

      The Union's claim that we erred in determining that the award was moot when arbitration awards are precedential under the parties' agreement provides no basis for granting reconsideration. This claim does not establish that the Authority erred in concluding that no cognizable legal interest remained in the dispute. As noted by the Agency in its opposition to the Union's motion, § 2429.10 of the Authority's Regulations precludes the Authority from issuing advisory opinions. Because the award in this case was specifically limited to the disputed RIF, which had been fully resolved, the Authority would have issued an advisory opinion if it had addressed whether the Arbitrator's interpretation of Article 19 was deficient. [n2] 

      Finally, we reject the Union's claim that Authority unfair labor practice precedent is relevant. The Arbitrator's award was expressly limited to a finding that the Agency's notice violated Article 19 of the parties' collective bargaining agreement. The Arbitrator did not address the Union's allegation that the Agency violated § 7116(a)(1) and (5) of the Statute. Any dispute by the Union with the Arbitrator's failure to address the unfair labor practice allegation should have been raised by the Union as an exception to the award. The Union's attempt to now have this matter remanded for resolution of this issue is untimely and provides no basis for reconsideration.

V.     Order

      The Union's motion is denied. [n3] 



Footnote # 1 for 61 FLRA No. 64 - Authority's Decision

   The Union has not established that it has a property right in "a `final and binding' arbitration decision" in a matter that the Authority has determined is moot. Motion at 9th unnumbered page. Cf. Griffith v. FLRA, 842 F.2d 487, 495 (D.C. Cir. 1988) (grievance procedures afford no constitutional right to adjudication of alleged violations of law). But even if it had such a right, contrary to the argument of the Union, we did not act sua sponte in ruling that the award was moot. Accordingly, this assertion p