[ v56 p935 ]
56 FLRA No. 155
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION
(56 FLRA 393 (2000))
ORDER DENYING MOTION
November 16, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This matter is before the Authority on the Agency's request for reconsideration of the Authority's decision in U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, 56 FLRA 393 (2000). The Union filed an opposition.
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 that extraordinary circumstances exist. Accordingly, we deny the Agency's motion.
II. Decision in 56 FLRA 393
In 56 FLRA 393, the Authority denied the Agency's exceptions to the Arbitrator's award, which determined that the Agency had agreed to bargain over matters covered under section 7106(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute) and that this election obligated the Agency to proceed to the Federal Service Impasses Panel (the Panel) or other third-party impasse procedures, as necessary.
The Agency had contended that the award was deficient because the grievance was not arbitrable. The Agency maintained that the grievance was a dispute over Executive Order 12871 and that consequently, the Arbitrator, Panel, and Authority did not have jurisdiction to decide the matter. In addition, the Agency claimed that because this issue was jurisdictional, it could raise this issue in its exceptions even though it had not raised the issue to the Arbitrator.
The Authority determined that it was barred by section 2429.5 of the Authority's Regulations from considering the issue of arbitrability. 56 FLRA at 394 (citing U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California and Laborers' International Union of North America, Local 1276, 55 FLRA 193, 195 (2000) (National Park Service)). In addition, the Authority rejected the argument that this issue could be raised for the first time in exceptions because it concerned jurisdiction.
The Agency had also contended that the Arbitrator's order to proceed, as necessary, to the Panel was contrary to law. The Agency argued that the Arbitrator misapplied the legal standards relating to the obligation to bargain over a matter covered under section 7106(b)(1) because it could withdraw at any time prior to reaching agreement. The Authority denied the exception because it considered the Arbitrator's order to be a matter of contract interpretation that was not contrary to the Statute. The Authority ruled that a contractual election to bargain over matters covered under section 7106(b)(1) concerns contract interpretation. Accordingly, the Authority explained that the Agency's reliance on a right to withdraw from bargaining over matters covered under section 7106(b)(1) prior to agreement was misplaced because the Arbitrator had found that the Agency had already agreed to bargain on matters covered under section 7106(b)(1).
In sustaining the grievance, the Arbitrator had noted that the guidance of the Office of Personnel Management (OPM) on the implementation of Executive Order 12871 suggested that impasses over matters covered under section 7106(b)(1) be submitted to the Panel or other third-party proceedings. The Agency contended that this reliance on the OPM guidance was deficient because the guidance did not have the force of law and did not require the use of Panel procedures. The Authority denied the exception because the Agency had not shown that the Arbitrator relied on the guidance or that, if he did, such reliance was precluded. In the Authority's view, the Agency failed to establish that the advisory nature of the guidance precluded the Arbitrator's reference to it. [ v56 p936 ]
III. Motion for Reconsideration.
The Agency contends that reconsideration should be granted because the Authority erred in finding that the Agency's jurisdictional arguments were barred and in concluding that the order to proceed to the Panel was not contrary to law.
In contending that the Authority erred in finding that the Agency's jurisdictional arguments were barred by section 2429.5, the Agency maintains that the Authority has specifically held that an issue of an arbitrator's jurisdiction can be raised at any time. Motion at 5 (citing American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 47 FLRA 150, 153 (1993) (Oklahoma Air Logistics Center)). The Agency claims that Oklahoma Air Logistics Center is the correct view on questions of jurisdiction and that National Park Service, on which the Authority relied, is "flawed." Id. at 7. The Agency also argues that the Authority's narrow interpretation of subject-matter jurisdiction that can be raised at any time is inconsistent with the "fundamental notion" that a federal court of appeals can examine a district court's jurisdiction even when raised for the first time on appeal. Id. The Agency further asserts that the Authority should follow the interpretation of a similar provision in the National Labor Relations Act, which the Agency maintains would allow consideration of its jurisdictional arguments. Id. at 6 (citing 29 U.S.C. § 160(e)) [n2] . Alternatively, the Agency asserts the Authority should take official notice of its jurisdictional arguments under section 2429.5.
In contending that the Authority erred in failing to find deficient the order to proceed to the Panel, the Agency claims that the Authority failed to address its arguments regarding the impropriety of Panel involvement in permissive matters. The Agency argues that under the Statute and Executive Order 12871, an agency may not be compelled to participate in impasse procedures with regard to permissive subjects of bargaining, even if the agency elects to negotiate such matters. The Agency further maintains that the Authority's conclusions in denying its exception pertaining to the OPM guidance are "remarkably disingenuous" in that the OPM guidance had to be the basis of the award and the Authority's decision. Id. at 10.
In opposition, the Union contends that the Agency's disagreement with the Authority's decision does not establish the extraordinary circumstances necessary for reconsideration.
IV. Analysis and Conclusions
The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under section 2429.17 of the Authority's Regulations bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 55 FLRA 521, 521-22 (1999). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where the Authority erred in its conclusion of law. However, attempts to relitigate conclusions reached by the Authority are insufficient to establish the necessary extraordinary circumstances. Id. at 522.
We conclude that the Agency has failed to establish that the Authority erred as a matter of law in ruling that the Agency's jurisdictional arguments were barred by section 2429.5 of the Authority's Regulations. We further conclude that the Agency has also failed to establish that the Authority erred as a matter of law in ruling that the Agency had not demonstrated that the Arbitrator's order to proceed, as necessary, to third-party proceedings was contrary to law.
The Agency fails to establish any legal error in barring its jurisdictional arguments. The Agency maintains that the Authority should have applied Oklahoma Air Logistics Center rather than National Park Service and allowed its claim that the grievance was not arbitrable. National Park Service expressly applied section 2429.5 to a claim that the arbitrator lacked jurisdiction over the grievance. In doing so, the Authority specifically refused to follow U.S. Department of Justice, Immigration and Naturalization Service, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council, Local 1929, 40 FLRA 43 (1991) (INS, El Paso), because it provided no rationale as to why an issue as to the arbitrator's jurisdiction was not barred by the plain language of section 2429.5. Like INS, El Paso, Oklahoma Air Logistics Center provides no rationale as to why the issue was not barred by the plain language of section 2429.5 and cannot establish the necessary extraordinary circumstances for reconsidering the Authority's application of section 2429.5. [ v56 p937 ]
Similarly, the Agency's references to review of U.S. district court jurisdiction by a federal court of appeals and review of NLRB jurisdiction by a federal court of appeals, notwithstanding 29 U.S.C. § 160(e), likewise fail to establish the necessary extraordinary circumstances. The references are more like the Authority's subject-matter jurisdiction, which may be raised at any time, than the Agency's failure to raise to the Arbitrator the issue of his jurisdiction over the grievance, which under the plain language of section 2429.5 must be presented to the arbitrator. Finally, a request that the Authority now exercise its discretion to take official notice of an issue it held was barred can provide no basis for reconsidering that decision.
The Agency likewise fails to establish any legal error in the Authority's denial of its exception, which contended that the Arbitrator's order to proceed, as necessary, to third-party proceedings was contrary to law. The Authority denied the Agency's exception because it considered the Arbitrator's order to be a matter of contract interpretation, which was not contrary to the Statute.
The Agency now argues in its motion for reconsideration that the Authority failed to address its contention regarding the impropriety of Panel involvement in permissive matters. Such an argument provides no basis for reconsidering the denial of its exception. The contention was viewed as part of the Agency's arguments that were rejected on the basis that the Arbitrator's order concerned contract interpretation. We note that the order merely enforces the parties' collective bargaining agreement to require, as necessary, that the parties proceed to the Panel. The award in no way intrudes upon the Panel's discretion to determine its jurisdiction. Accordingly, in our view, the Agency's arguments are essentially a reiteration of its exceptions, which the Authority considered and rejected in 56 FLRA 393. Although the Agency disagrees with the denial of those exceptions, such disagreement fails to establish the necessary extraordinary circumstances to warrant reconsideration of 56 FLRA 393. See, e.g., U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office and National Federation of Federal Employees, BIA Council, 54 FLRA 9, 12-13 (1998). Accordingly, we deny the Agency's motion.
The Agency's motion for reconsideration is denied.
Footnote # 1 for 56 FLRA No. 155
Footnote # 2 for 56 FLRA No. 155
No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.