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

[ v56 p935 ]

56 FLRA No. 155

U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
(Union)

0-AR-3172
(56 FLRA 393 (2000))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

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 fa