U.S. Department of the Treasury, Internal Revenue Service (Agency) and National Treasury Employees Union (Union) (Authority decision, November 27, 2001)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

The Internal Revenue Service sought reconsideration of a decision sustaining compensation for employees whose commute increased during a temporary assignment. The arbitrator had found that the agreement authorized payment under the Portal-to-Portal Act. The agency argued that the Authority wrongly refused to consider its regulatory objection. The Authority explained that the agency had raised the regulatory conflict before the arbitrator, but had not argued that the Act was inapplicable even if the agreement contained an express compensation provision. That new argument was barred, and the agency established no extraordinary circumstances warranting reconsideration. The Authority denied reconsideration and also denied a stay because its regulations no longer authorize stays of arbitration awards.

Decision snapshot

• Authority: 5 C.F.R. §§ 2429.17 and 2429.5; 29 U.S.C. § 254(b); 5 C.F.R. § 551.422.
• Outcome: Reconsideration and a stay denied.
• Key point: Raising a regulatory conflict did not preserve the separate argument that the statutory exception could not apply even to an express contract provision.

Full text (FLRA public release)

[ v57 p592 ]

57 FLRA No. 112

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-3351 REC

(57 FLRA 444 (2001))

_____

ORDER DENYING MOTION FOR

RECONSIDERATION

November 27, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This case is before the Authority on the Agency's motion for reconsideration and request for a stay of the Authority's decision in 57 FLRA 444 (2001) (Chairman Cabaniss concurring). The Union filed 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. We conclude that the Agency has failed to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Agency's motion and its request for a stay. [n2]

II. Decision in 57 FLRA 444

In 57 FLRA 444, the Arbitrator found that the Agency's failure to compensate employees whose commute time increased as a result of a temporary assignment violated a provision of the parties' collective bargaining agreement authorizing compensation. In reaching this result, the Arbitrator addressed the stipu lated [ v57 p593 ] issue of whether application of the agreement provision to the employees' temporary assignment would violate law, rule, or regulation, including 5 C.F.R. § 551.422. The Arbitrator concluded that the agreement provision conflicted with law and regulation, including 5 C.F.R. § 551.422, but was nevertheless enforceable under the Portal-to-Portal Act, 29 U.S.C. § 254 (the Act), which contains exceptions to the general prohibition on compensation for commute time. [n3] The Arbitrator found that the exception allowing compensation for commute travel where authorized by an express provision of a written contract was applicable here because the parties' agreement contained an "express provision" within the meaning of 29 U.S.C. § 254(b)(1).

The Agency excepted to the award on the basis that it was contrary to law and failed to draw its essence from the agreement. [n4] The Agency maintained that the agreement provision did not constitute an express provision within the meaning of the Act because it did not explicitly provide payment for travel. The Agency added that the Act's exceptions apply only to legal and enforceable contract provisions and that the agreement provision here contravened government-wide regulations that prohibit federal employees from being compensated for commute time.

The Authority rejected the Agency's claim that the agreement provision did not constitute an "express provision." The Authority determined that the Agency failed to establish that the Arbitrator erred, as a matter of law, in finding that the agreement provision was an express provision under the Portal-to-Portal Act. In reaching this conclusion, the Authority found that nothing in § 254(b), or judicial opinions involving the Act, requires that a contract, custom or practice be set forth with any degree of precision or specificity.

The Authority also found that § 2429.5 of its Regulations barred consideration of the Agency's claim that the agreement provision was not enforceable under 29 U.S.C. § 254(b) because it was contrary to 5 C.F.R. § 551.422(b). [n5] The Authority stated that the Agency's contention that the agreement provision was not an "express provision," within the meaning of § 254(b), was predicated on the view that § 254(b) otherwise applied. The Authority found that the new argument, instead, was based on the Agency's contention that even if the requirements of § 254(b) were met, that section itself did not apply to the agreement provision. The Authority determined that this new claim could have been, but was not, raised before the Arbitrator and, therefore, it was not properly before the Authority. [n6]

III. Motion for Reconsideration

The Agency contends that the Authority erred in refusing to consider the argument that the award violated 5 C.F.R. § 551.422. According to the Agency, this contention had been raised before the Arbitrator as part of the stipulated issue for resolution. The Agency adds that the parties' positions before the Arbitrator regarding the applicability of § 551.422 challenged the enforceability of the agreement provision under § 254(b) and that the Authority misconstrued the Agency's exception on this point. The Agency also asserts that the term "issue" in § 2429.5 must be read broadly to include new "arguments" and supporting judicial opinions. Finally, the Agency states that the Authority must exercise de novo review in assessing whether the award is consistent with law and, as the award here is contrary to law, it must be set aside.

The Union opposes the motion for reconsideration, arguing that the Agency failed to raise the claim before the Arbitrator.

IV. Analysis and Conclusions

The Authority has repeatedly recognized that 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., Washington, D.C., 56 FLRA 935 (2000) (IRS). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist: (1) where an intervening court decision or change in the law [ v57 p594 ] affected dispositive issues; (2) where evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding, and (4) where the moving party has 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). The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See IRS, 56 FLRA at 936.

The Authority did not find, as the Agency argues, that the Agency failed to raise the asserted inconsistency between the agreement provision and 5 C.F.R. § 551.422. The Authority recognized that the claim had been presented to -- and resolved by -- the Arbitrator as part of the parties' stipulated issue. See 57 FLRA at 445. Rather, the claim that the Authority found was barred from consideration was the Agency's contention that, even if the agreement provision constituted an "express provision," within the meaning of § 254(b), it was not enforceable under the Portal-to-Portal Act. With regard to the Portal-to-Portal Act, the Agency disputed before the Arbitrator only whether the agreement provision constituted an express provision -- not whether the Act applied at all to the provision.

The Agency's arguments in its motion for reconsideration do not establish that any of the situations identified by the Authority as meeting the extraordinary circumstances requirement are present. Accordingly, we deny the Agency's motion.

V. Order

The Agency's motion for reconsideration is denied.

Footnote # 1 for
57 FLRA No. 112

Member Armendariz did not participate in this decision or in 57 FLRA 444.

Footnote # 2 for
57 FLRA No. 112

The Authority's Regulations do not provide a basis for filing requests for stays of arbitrators' awards. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45,754). Therefore, we deny the Agency's request.

Footnote # 3 for
57 FLRA No. 112

The Portal-to-Portal Act, 29 U.S.C. § 254, amended the Fair Labor Standards Act. Under 29 U.S.C. § 254(a), an employer is not liable for wages or overtime compensation for the time employees spend going to and from work. Exceptions to this prohibition are set forth in § 254(b), which states that such activity is compensable by either "an express provision of a written or nonwritten contract . . . between [the employee's] collective-bargaining representative and his employer," or "a custom or practice in effect, at the time of such activity."

Footnote # 4 for
57 FLRA No. 112

The Agency does not seek reconsideration of the Authority's finding that the award drew its essence from the agreement. Consequently, we do not address further this portion of the award.

Footnote # 5 for
57 FLRA No. 112

Under § 2429.5, the Authority "will not consider . . . any issue, which was not presented in the proceedings before the . . . arbitrator."

Footnote # 6 for
57 FLRA No. 112

Agreeing that the Agency's new argument had not been timely raised, Chairman Cabaniss wrote separately to express her views that a court decision cited by the Agency would have compelled a finding in its favor, had the new argument been made in a timely manner.