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61 FLRA No. 169
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(61 FLRA 618 (2006))
ORDER DENYING MOTION
October 26, 2006
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in National Treasury Employees Union and United States Dep't of the Treasury, Internal Revenue Service, 61 FLRA 618 (2006) (NTEU). The Agency filed an opposition to the Union's 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 Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.
II. Decision in NTEU, 61 FLRA 618
In NTEU, the Authority reviewed an award [n1] wherein the Arbitrator had concluded that an Agency requirement that candidates for Revenue Agent positions demonstrate knowledge in five areas of accounting (the five-knowledges requirement) was an educational requirement that violated 5 U.S.C. § 3308 (§ 3308). [n2] The Arbitrator had also concluded that the five-knowledges requirement violated Article 13, Section 3(B) of the parties' agreement, which provides that "selective placement factors will only be used in determining eligibility when they are essential to successful performance in the position to be filled." NTEU, 61 FLRA at 619. The Arbitrator had rejected the Union's claim that the five-knowledges requirement violated 5 C.F.R. § 300.103. The Arbitrator also rejected the Union's argument that the requirement did not satisfy the documentation requirements of the Uniform Guidelines for Employment Selection Procedures, 29 C.F.R. § 1600, et seq (Uniform Guidelines).
Both parties filed exceptions to various aspects of the award. Resolving exceptions filed by the Agency, the Authority set aside the Arbitrator's finding that the five-knowledges requirement violated § 3308, concluding that § 3308 applied to requirements that could be established through education only (not through experience), and that the award and the record indicated that the five-knowledges requirement could be satisfied though experience as well as education. NTEU, 61 FLRA at 621. The Authority also concluded that the Arbitrator's finding of a contract violation was contrary to management's right to make selections under § 7106(a)(2)(C) of the Federal Service Labor-Management Relations Statute (the Statute). Id. at 622. The Authority found that, as argued by the Agency, the award affected this right by precluding the Agency from using the five-knowledges requirement as a selective factor. Id. In so finding, the Authority rejected the Union's argument that there was no effect on management's right because the award expanded, rather than limited, the Agency's selection options. Id. The Authority also found that the Union made no claim that the award enforced either a provision negotiated under § 7106(b) of the Statute or an applicable law, making it unnecessary to make such determinations under the framework set forth in United States Department of the Treasury, Bureau of Engraving & Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP).
Resolving exceptions filed by the Union, the Authority concluded that the Arbitrator had not erred in finding the five-knowledges requirement consistent with 5 C.F.R. § 300.103 and in finding no violation of the Uniform Guidelines. [n3] As for the Uniform Guidelines, the Authority found that the Arbitrator had erred in stating that the Agency had no obligation to evaluate the possible adverse impact of the five-knowledges requirement on any race, sex, or ethnic group. NTEU, 61 FLRA at 624. Nevertheless, the Authority concluded [ v61 p847 ] that the Arbitrator's ultimate conclusion that the Agency had not violated the Uniform Guidelines was not deficient. Id. In this regard, the Authority stated that the Agency had evaluated, and found no adverse impact of, the five-knowledges requirement standing alone, while the Union's evidence assessed the five-knowledges requirement only as combined with the 30-hours requirement. Id. The Authority noted that the Union had not claimed that the five-knowledges requirement discriminated against the grievants, but had claimed only that the Agency failed to follow documentation requirements of the regulations. Id.
III. Positions of the Parties
A. Union's Motion
The Union asserts that the Authority's consideration of the management rights issue in NTEU "effectively raised an issue sua sponte" and that the Union should have an opportunity to directly address, under the Authority's BEP framework, whether the Arbitrator was enforcing an applicable law or a provision negotiated under § 7106(b) of the Statute. Motion at 9. In this regard, the Union asserts that Authority precedent requires the moving party to raise a claim under BEP and that the Authority's "elaboration of the undeveloped agency exceptions" should have also considered "readily apparent" reasons why the provision at issue satisfied the BEP test. Id. Setting out those reasons, the Union argues that the contract provision at issue satisfies prong I of the BEP test because it is intended to enforce an applicable law, specifically OPM requirements regarding selective placement factors. The Union also argues that the award constitutes a reconstruction of what management would have done if it had not violated the agreement, satisfying prong II of BEP.
Further, the Union argues that the Authority erred in its factual finding that the Union had not established that the five-knowledges requirement, standing alone, had an adverse impact on the selection process for Revenue Agents. The Union asserts that "an objective review" of the Union expert's testimony that was relied on by the Authority demonstrates that the expert evaluated the requirement "by itself." Motion at 13, 14 (quoting Transcript (Tr.) at 206). Further, the Union claims that the decision in NTEU misunderstood "the nature of the Union's claim" in finding that the Union had not claimed that the five-knowledges requirement "discriminated against the grievants." Motion at 15 (quoting NTEU, 61 FLRA at 624).
B. Agency's Opposition
The Agency argues that the Union has failed to establish that extraordinary circumstances warrant reconsideration of NTEU. In this regard, the Agency claims that the Authority did not raise sua sponte the issue of whether the award violates the Agency's right to make selections pursuant to § 7106(a)(2)(C) of the Statute. Further, the Agency contends that the Authority did not err in upholding the Arbitrator's conclusion that the Union had not established that the five-knowledges requirement had an adverse impact, in violation of the Uniform Guidelines.
IV. 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. 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). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where an: (1) 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; (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) the moving party had 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).
A. The Authority did not raise an issue sua sponte that the Union
should be permitted to address.
In NTEU, the Authority applied its well-established framework for the evaluation of agency claims that an arbitration award violates a management right under § 7106 of the Statute, "which the Authority developed in light of the Supreme Court's decision in" Dep't of the Treasury, IRS v. FLRA, 494 U.S. 922 (1990). United States Dep't of Veterans Affairs, Board of Veterans Appeals, 61 FLRA 422, 424 (2005). That framework is as follows:
In resolving whether an arbitrator's award violates management's rights under § 7106, the Authority first determines whether the award affects management's rights. United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If the award affects management's rights, then the Authority applies the two-prong test established in the Authority's decision in United States Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). [ v61 p848 ]
NTEU, 61 FLRA at 622. In applying BEP, the Authority routinely refuses to address elements of the test that are not argued by the parties. See United States Dep't of Homeland Sec., United States Customs & Border Prot., 61 FLRA 113, 116 nn. 8-9 (2005); United States Dep't of the Army, Corps of Engineers, Northwestern Div. and Portland Dist., 60 FLRA 595, 597 (2005); United States Dep't of Defense, Ala. Air Nat'l Guard, Montgomery, Ala., 58 FLRA 411, 413 n.3, recons. denied, 58 FLRA 635 (2003).
The Union's argument that the Authority raised the issue of BEP sua sponte is misplaced because BEP is not an issue -- it is a framework for evaluating issues that arise when an agency asserts that an arbitrator's award is inconsistent with its rights under § 7106 of the Statute. It is undisputed that the Agency argued that the award was contrary to its right to make selections under § 7106(a)(2)(C) of the Statute and the Union responded that that the award did not affect that right. The Authority agreed with the Agency's argument and the Union makes no claim in its motion that this finding was erroneous. In stating that the Union had made no argument that the contract provision was enforceable under the BEP framework, the Authority acted consistent with its practice of not addressing issues that a party does not raise. Thus, the Union is not objecting to the Authority's raising an issue sua sponte; it is objecting that the Authority did not raise sua sponte issues that it failed to raise. As that is not a ground for reconsideration, we deny the Union's request that the Authority reconsider the management rights issue.
B. The Authority did not err in finding that the Union had not
established that the five-knowledges requirement violated the
In NTEU, the Authority found that the Union had not established that the five-knowledges requirement, by itself, had an adverse impact on employees, relying on both the record and the Arbitrator's finding that the Union's expert had studied the impact of the five-knowledges requirement and the thirty-hours requirement "combined." Id. at 624 (quoting Award at 41); see Union Exceptions, Attachment 6, Tr. at 205. The Union argues that this finding is erroneous, asserting that record evidence indicates that its expert testified that the five-knowledges requirement "would probably have an adverse impact if you just looked at that by itself." Motion at 14 (quoting Tr. at 206).
While the Union's quotation of testimony is accurate, the context of the testimony indicates that the expert did not evaluate the adverse impact of the five-knowledges requirement independent of the 30-hours requirement. In this regard, the expert stated that "the five-knowledge requirements are inherently part of the . . . 30 semester hours" requirement. Tr. at 205, 206. He reasoned that the five-knowledges requirement would be equivalent to 15 credit hours in accounting. See id. According to the expert, the impact of these 15 hours would be "approximately halfway between" the impact of no education requirement and the impact of the 30-hours requirement. Id. at 205-206. Although the expert stated that the five-knowledges requirement would "probably" have an adverse impact "by itself," the statement must be evaluated in the context of the expert's additional statement that "the five-knowledge requirements are inherently part of . . . either the college degree in accounting or the 30 semester hours in accounting and . . . you can't say . . . which comes first." [n4] Id. at 205, 206. Thus, the evidence relied on by the Union does not demonstrate that the Authority erred in relying on the record and Arbitrator's finding that the Union's expert had studied the impact of the two requirements "combined." NTEU, 61 FLRA at 624 (quoting Award at 41).
Finally, the Union objects to the Authority's statement in NTEU, 61 FLRA at 624, that it did not claim that the five-knowledges requirement discriminated against the grievants. Motion at 15. The Union argues that it made a discrimination claim because its exceptions cited 5 C.F.R. § 300.103 (c) (§ 300.103(c)), which requires that employment practices not discriminate against employees. Id.
The Union's argument fails to establish that reconsideration is warranted. In this regard, the grievance filed by the Union made no reference to discrimination, see Union Ex. 4, and nothing in the record indicates that the Union made a claim under § 300.103(c) before the Arbitrator. In this regard, the Arbitrator made no reference to a claim of discrimination; the Arbitrator stated the claim as being that "the Agency failed to show that the new requirements are . . . `in compliance with the documentation requirements of the Uniform Guidelines.'" Award at 16 (quoting Union Post-hearing Brief at 12). Section 2429.5 of the Authority's Regulations provides that the Authority will not consider issues that were not presented to an arbitrator. Thus, even if the Union's reliance on § 300.103(c) in its exceptions were considered a claim that the grievants were discriminated against, that argument was not properly before the Authority. The Union has therefore not established that reconsideration is warranted.
The Union's motion for reconsideration is denied.
Footnote # 1 for 61 FLRA No. 169 - Authority's Decision
The award also considered an Office of Personnel Management (OPM) qualification standard that required applicants to have 30 credit hours in accounting (the 30-hours requirement). The parties' dispute over this was resolved in NTEU, 60 FLRA 782 (2005) and is not at issue here.
Footnote # 2 for 61 FLRA No. 169 - Authority's Decision
Section 3308 provides, in pertinent part, that OPM "may not prescribe a minimum educational requirement . . . except when [OPM] decides that the duties of a scientific, technical, or professional position cannot be performed by an individual who does not have a prescribed minimum education . . . ."
Footnote # 3 for 61 FLRA No. 169 - Authority's Decision
Footnote # 4 for 61 FLRA No. 169 - Authority's Decision
Moreover, we note that the 30-hours requirement is no longer at issue. As the 30-hours requirement is already in effect, and as the five-knowledges requirement does not require applicants to have additional credits, no additional adverse effect would flow from the latter requirement.