52:0694(67)AR - - Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons and AFGE, Local 1612 - - 1996 FLRAdec AR - - v52 p694
[ v52 p694 ]
The decision of the Authority follows:
52 FLRA No. 67
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
MEDICAL FACILITY FOR FEDERAL PRISONS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(51 FLRA 1126 (1996))
ORDER DENYING MOTION FOR RECONSIDERATION
December 10, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This case is before the Authority on the Agency's motion for reconsideration of the Authority's Decision in 51 FLRA 1126 (1996). The Union did not file 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. For the following reasons, we conclude that the Agency has failed to establish that extraordinary circumstances exist and we deny the Agency's motion.
II. Decision in 51 FLRA 1126
In 51 FLRA 1126 (Prisons), the Authority denied the Agency's exceptions to the Arbitrator's award, which sustained a grievance contending that the Agency violated the parties' collective bargaining agreement when it placed two entries into the grievant's performance log stating that her performance was minimally satisfactory.
As relevant here,(1) the Authority rejected the Agency's claim that, under U.S. Department of Treasury, U.S. Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) (U.S. Customs Service), the Arbitrator lacked subject matter jurisdiction to resolve the grievance.(2) In particular, the Authority rejected the Agency's argument that the Arbitrator was not empowered to interpret and apply 28 C.F.R. § 541.14(a), a regulation concerning inmate housing and discipline, because, according to the Agency, that regulation was not directed toward employee working conditions.(3) Distinguishing the court's decision in U.S. Customs Service from the facts and circumstances of this case, the Authority stated that unlike U.S. Customs Service, which addressed a union's attempt to enforce a statute and an agency's claim that the grievance was not arbitrable, the Union, in this case, sought to enforce a provision of the parties' collective bargaining agreement and the Agency initially agreed that the grievance was arbitrable. The Authority also determined that, unlike the statute involved in U.S. Customs Service, 28 C.F.R. § 541.14(a) was directed, in part, toward employee working conditions.
The Authority also rejected the Agency's claim that the award was inconsistent with 28 C.F.R. § 541, as interpreted by the Agency. With regard to the Agency's interpretation of the regulation, the Authority stated that, "'[t]o carry much weight . . ., the interpretation must be publicly articulated some time prior to the agency's embroilment in litigation over the disputed provision.'" Prisons, 51 FLRA at 1136 (citing Nordell v. Heckler, 749 F.2d 47, 48 (D.C. Cir. 1984) (Nordell). In this connection, the Authority concluded that:
[T]he Agency's interpretation of the disputed regulation was promulgated in the context of this litigation, and the record contains no indication that the interpretation reflects the views of the Agency head or was arrived at in a manner which supports a view that it is not entirely litigation inspired. Moreover, the regulation does not define the term "informal resolution" and, in at least some instances, the Agency has acted in a manner that is inconsistent with the interpretation it offer[ed] in this case.
Prisons, 51 FLRA at 1137.
III. Motion for Reconsideration
In its motion for reconsideration, the Agency disputes the foregoing aspects of the Authority's decision for three reasons.
First, the Agency contends that, contrary to the Authority's finding, it did not concede jurisdiction during arbitration and that it was not foreclosed from raising this argument for the first time in its exceptions. The Agency maintains that it is well established that objections to subject matter jurisdiction can be raised at any time and cannot be waived.
Second, the Agency claims that the Authority erred in concluding that 28 C.F.R. § 541 affects the working conditions of employees. In this regard, the Agency maintains that the language of the statute at issue in U.S. Customs Service is not significantly different than the language of 28 C.F.R. § 541. The Agency claims that the fact that the regulation refers to "employees" and "staff" does not demonstrate that it was issued for the purpose of affecting the working conditions of employees.
Finally, the Agency asserts that the Authority should have deferred to the Agency's interpretation of 28 C.F.R. § 541. The Agency argues that the Authority's requirement that Agency interpretations be promulgated in advance of litigation in order to be entitled to deference is a "newly articulated prerequisite" that is not contained in previous Authority decisions. Motion for Reconsideration at 17. The Agency maintains that Nordell is not applicable here because Nordell addressed regulations applying to persons outside the agency.(4) Here, the Agency argues that, insofar as 28 C.F.R. § 541 applied to agency employees, the Agency was not required to publicly articulate its interpretation of the regulation. According to the Agency, applying the Authority's construction of Nordell would prevent the Agency from holding its employees responsible for violations unless the Agency articulated its construction of the regulation in advance.
IV. Analysis and Conclusions
A. The Standard for Granting Reconsideration
Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 85 (1995) (Scott Air Force Base). In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; and (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. Extraordinary circumstances have also been found by the Authority where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision. Id. at 86-87 (footnote omitted).
B. The Agency Has Not Established Extraordinary Circumstances Justifying Review
1. The Authority Did Not Conclude That the Agency Was Barred From Raising the Issue of Subject Matter Jurisdiction in its Exceptions
Contrary to the Agency's claim, the Authority did not decide that the Agency was barred from posing a question of subject matter jurisdiction. Rather, the Authority merely stated the fact that "the Agency agreed that the grievance was arbitrable and, itself, submitted the now contested regulation."(5) Prisons, 51 FLRA at 1134. Having done so, the Authority addressed fully, and on the merits, the Agency's claim that, applying U.S. Customs Service, the Arbitrator lacked jurisdiction over the grievance. Accordingly, this argument does not establish extraordinary circumstances warranting reconsideration of the Authority's decision.
2. The Authority Did Not Depart From Precedent by Rejecting the Agency's Argument That the Arbitrator Lacked Subject Matter Jurisdiction to Interpret and Apply 28 C.F.R. § 541
The Authority found that, unlike the grievance in U.S. Customs Service, the grievance in this case was not predicated on a "violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment" under section 7103(a)(9)(C)(ii) of the Statute. Rather, the Authority determined that the grievance in this case concerned the "effect or interpretation, or a claim of breach, of a collective bargaining agreement" under section 7103(a)(9)(C)(i) of the Statute. The Authority's conclusion is supported by the Arbitrator's award, which states: "[t]he case was presented as a claim of contract violation." Award at 11. The Agency has not shown that the Authority erred in concluding, on this ground, that U.S. Customs Service was distinguishable.
Moreover, the Agency has not demonstrated that the Authority erred in concluding that, even if the grievance had been predicated on a claimed violation of 28 C.F.R. § 541, the award still was not deficient. Unlike the statute in U.S. Customs Service, the disputed regulation here was "crafted with  regard for  employees." Treasury, 884 F.2d at 689. For example, the plain wording of the regulation states: "when staff witnesses . . . when staff considers informal resolution of the incident inappropriate . . . staff shall prepare." 28 C.F.R. § 541.14(a). In this connection, the specific and repeated references to staff relate to assignment of work. As such, U.S. Customs Service would not necessarily place the grievance outside the Arbitrator's jurisdiction. Accordingly, this argument does not establish extraordinary circumstances warranting reconsideration of the Authority's decision.
3. The Authority Did Not Depart From Precedent by Refusing to Defer to the Agency's Interpretation of 28 C.F.R. § 541
As noted in Prisons, courts generally defer to the interpretation an agency gives to the regulations it administers. 51 FLRA at 1136. However, where an agency has no established position on a regulation, courts sometimes decline to defer to interpretations put forth by agency counsel in litigation. Id. Moreover, courts are less compelled to defer to agency interpretations where the agency, without explanation, has acted inconsistently with its interpretation of the regulation. See Pauley v. Bethenergy Mines, 501 U.S. 680, 698 (1991).
Contrary to the Agency's claim, the Authority did not find that the Agency's interpretation "was the invention of the counsel who filed the exceptions." Motion for Reconsideration at 15. Rather, the Authority stated that the Agency's interpretation had been articulated for the first time during the grievance litigation and had not been expressed, as the Agency claimed, in previous court decisions. The Authority acknowledged, as stated in Treasury, that "courts have sometimes declined to defer . . . to . . . litigative positions" and that "to carry much weight . . . the interpretation must be publicly articulated sometime prior" to the litigation. Prisons, 51 FLRA at 1136 (citations omitted). In this connection, we note that, in General Services Administration v. FLRA, 86 F.3d 1185, 1188 (D.C. Cir. 1996) (GSA), the court held that it would "defer to an agency's interpretation of its [regulations] even if proffered outside administrative adjudication . . . so long as . . . it is the 'official interpretation'." Based on the record as a whole, the court in GSA concluded that the agency's counsel's position during the unfair labor practice litigation was consistent with the agency's official views. Nothing in the record of this case, other than counsel's statements to this effect, establishes that the Agency's counsel's proffered construction of the regulation is the Agency's "official interpretation."
In deciding whether the Agency's interpretation of the regulation was controlling, the Authority considered several factors, including: (1) the Agency's failure to publicly articulate its interpretation of the regulation before the instant litigation; (2) the Agency's inconsistent application of its interpretation of the regulations; and (3) the fact that the regulation does not define the term, "informal resolution," that is material to the dispute. Weighing these factors in relation to the foregoing case law, the Authority concluded that the award was not deficient as inconsistent with the disputed regulation, as interpreted by the Agency. The Authority did not maintain, as the Agency claims, that Nordell permits an arbitrator to ignore an agency's interpretation of its regulations. To the contrary, the Authority found only that, under Nordell, an agency's interpretation of its regulations is not always controlling.
The Agency does not cite, and we do not find, support for its argument that Nordell does not apply where an agency is "holding itself  to the terms of its regulations rather than applying them to others." Motion for Reconsideration at 18 n.6. To reach such a conclusion would require that the Authority determine that an agency's interpretation of regulations that are applied to employees are entitled to more deference than interpretations of regulations that are applied to others. We find no support for this proposition. Because