United States, Department of the Treasury, Internal Revenue Service, Denver, Colorado (Agency) and National Treasury Employees Union, Chapter 32 (Union) (Authority decision, May 4, 2005)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122 and an unfair labor practice claim under 5 U.S.C. § 7116. Because the order involves an unfair labor practice, an aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

An arbitrator found that the IRS unlawfully refused to bargain over a union proposal to let employees swap approved leave. The Authority had set aside that ruling because the parties' agreement already addressed how leave was granted. The union sought reconsideration, arguing that the Authority failed to defer to the arbitrator's interpretation and decided an issue the agency had not raised. The Authority found that it had accepted the arbitrator's facts and contract interpretations but could independently decide their legal effect. It also found that the agency had raised the agreement's express coverage of leave procedures. The Authority denied reconsideration, leaving its earlier ruling in place.

Decision snapshot

• Authority: 5 C.F.R. § 2429.17; 5 U.S.C. §§ 7116(a)(1), 7116(a)(5), and 7122(a).
• Outcome: Union's reconsideration motion denied; earlier setting aside of the unfair labor practice finding remains.
• Key point: The union did not show extraordinary circumstances when the Authority independently assessed whether the contract covered the leave proposal.

Full text (FLRA public release)

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60 FLRA No. 165

UNITED STATES

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

DENVER, COLORADO

(Agency)

and

NATIONAL TREASURY

EMPLOYEES UNION

CHAPTER 32

(Union)

0-AR-3871

(60 FLRA 572 (2005))

_____

ORDER DENYING MOTION

FOR RECONSIDERATION

May 4, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members

I. Statement of the Case

This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in United States Dep't of the Treasury, Internal Revenue Serv., Denver, Colo., 60 FLRA 572 (2005) (Chairman Cabaniss concurring) (IRS). 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 IRS, 60 FLRA 572

The Arbitrator found that the Agency violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over the Union's leave swapping proposal. Specifically, as relevant here, the Arbitrator rejected the Agency's argument that the Union's proposal was covered by the parties' agreement, applying the standard set out in United States Dep't of Health and Human Serv., Soc. Sec. Admin., Balt., Md., 47 FLRA 1004 (1993) (HHS).

The Agency filed timely exceptions to the award, in which it argued, as relevant here, that the Union's proposal was "clearly an aspect of the granting of annual leave[,]" which is covered by the parties' agreement. IRS, 60 FLRA at 573. The Agency argued that the Union's proposal was "inseparably bound up" with the parties' agreement. Id.

The Authority set aside the portion of the award finding a violation of the Statute for the Agency's refusal to bargain over the Union's leave swapping proposal. The Authority found that the parties' agreement expressly addressed the standards for granting leave and that, therefore, the Union's leave swapping proposal was covered by the parties' agreement. As such, the Authority held that the Agency had no duty to bargain over the Union's proposal and did not violate the Statute when it refused to bargain.

III. Positions of the Parties

A. Union's Motion for Reconsideration

The Union argues that the Authority misapplied the "covered-by doctrine" because it failed to defer to the Arbitrator's factual findings and contract interpretations. Motion at 4. According to the Union, the first prong of the covered by doctrine "does not require an exact congruence of language [between the disputed provisions and proposals]," so long as "a reasonable reader would conclude that the [existing] provision settles the matter in dispute." Id. at 6 (citing HHS, 47 FLRA 1004). In the Union's view, "a reasonable reader would not find the subject of leave-swapping to be settled by a provision requiring management to grant leave by seniority." Id. (emphasis supplied).

The Union asserts that the Arbitrator interpreted Article 32, § 1.C as applying to "situations involving a conflict between employees requesting leave," while the leave swapping proposal addresses "interactions between employees" who "willingly volunteer to the transaction, without conflict." Id. at 5. The Union also claims the Arbitrator interpreted the agreement as addressing "only management's procedures for granting and denying leave, not matters related to an employee's use of authorized leave." Id.

Finally, the Union argues that the Authority improperly based its decision on the first prong of the covered-by doctrine, which the Union asserts the Agency did not raise. According to the Union, the Agency's exceptions "were based exclusively on the Arbitrator's application of the second prong of the covered-by analysis, that the subject matter of the leave-swapping proposal is inseparably bound up with the language in the leave article." Id. at 7. [ v60
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B. Agency's Opposition

The Agency asserts that the Authority acted properly, pursuant to its "de novo review[,]" by not deferring to the Arbitrator's conclusion that the Union's leave swapping proposal was not covered by the parties' agreement. Opposition at 5 (citing Soc. Sec. Admin., Headquarters, Balt., Md., 57 FLRA 459 (2001) (SSA)). In this connection, the Agency asserts that "the Arbitrator's conclusion was not supported by either the record or by the standards and principles of interpreting collective bargaining agreements." Id. at 4. According to the Agency, the Authority must defer only to the Arbitrator's factual findings, not his legal conclusions.

The Agency argues that the Union's argument that the Authority improperly based its decision on prong 1 of the covered by doctrine is "factually and legally without merit." Id. at 6. As to the facts, the Agency asserts that it argued before the Authority that the Union's proposal was "expressly covered by" the parties' agreement, based on the "express language" of the agreement, "which is an argument based on the first prong of the `covered by' doctrine." Id. at 7. As to the law, the Agency asserts that "when a matter is expressly addressed in an agreement it is also inseparably bound up with that agreement." Id. at 8 (citing NTEU, 59 FLRA 217 (2003)).

IV. The Union's Motion for Reconsideration

Fails to Establish that Extraordinary

Circumstances Exist Within the Meaning

of § 2429.17

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. 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., 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: (1) where an intervening court decision or change in the law 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 Union first argues that extraordinary circumstances exist because the Authority misapplied the law by not deferring to the Arbitrator's factual findings and contract interpretations. The Union's claim in this regard confuses the Authority's obligation to defer to factual findings and contract interpretations with its duty to review legal conclusions de novo. In this regard, although the Authority defers to an arbitrator's factual findings and contract interpretations, the Authority does not defer to an arbitrator's conclusions as to the legal effect of those findings and interpretations. See, e.g., NTEU, Chapter 168, 55 FLRA 237, 241-42 (1999) (deferring to arbitrator's interpretation of parties' agreement and reviewing de novo the legal affect of applying the agreement, as interpreted by the arbitrator).

Here, the Arbitrator interpreted the Union's proposal as permitting an employee with leave to transfer that leave to an employee who does not have approved leave. The Arbitrator interpreted Article 32, § 1.C as requiring the Agency to grant leave by seniority when there is a conflict among employees wanting to take leave at the same time. These interpretations are not in dispute. Based on these interpretations, the Arbitrator concluded as a matter of law that the proposal was not covered by the parties' agreement. Based on these same interpretations, and consistent with its de novo review, the Authority concluded that Article 32, § 1.C covers the situation described in the Union's proposal. In this regard, the Authority rejected the Arbitrator's legal conclusion that the agreement did not cover the subject matter of the proposal. Consequently, the Union's argument does not demonstrate extraordinary circumstances warranting review of the Authority's decision.

The Union also claims that extraordinary circumstances exist because the Authority addressed prong 1 of the covered by analysis sua sponte and the Union did not have an opportunity to address the issue. However, the Agency specifically argued that the "express language of the [parties'] agreement . . . already provides a methodology for determining" the matter addressed in the Union's proposal, which relates to the first prong of the analysis. Exceptions to Initial Award at 6. Therefore, the Authority did not address prong 1 sua sponte, and the Union had an opportunity to address the issue. Finally, even assuming that only the second prong of the covered-by doctrine, and not the first, was in dispute, the Authority's conclusion that the matter is expressly covered by the parties' agreement effectively resolves both prongs. In this connection, when a matter is expressly addressed by a provision, it necessarily is "an aspect of" that provision, as required under prong 2.

V. Order

The Union's motion for reconsideration is denied.

Footnote * for
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FLRA No. 165

• Authority's Decision

The Agency requested permission to file an opposition to the Union's motion, pursuant to § 2429.26 of the Authority's Regulations.
We grant the Agency's request.