National Treasury Employees Union, Chapter 52 (Union) and United States Department of the Treasury, Internal Revenue Service, Wage & Investment Division, Austin, Texas (Agency) (Authority decision, April 19, 2016)

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

Plain-English summary

NTEU Chapter 52 challenged an arbitrator's denial of attorney fees in a dispute involving IRS performance awards. The union argued that the denial violated the Back Pay Act, failed to draw its essence from the agreement, and rested on a nonfact because an agreement provision incorporating the National Performance Awards Agreement required the awards. The Authority held that the union should have presented that agreement-based theory to the arbitrator but did not show that it had done so. It dismissed all exceptions under the rule barring arguments raised for the first time on review. The expedited public release does not describe the underlying merits award or the fee request.

Decision snapshot

• Authority: 5 U.S.C. §§ 5596, 7122(a), and 7123(a)(1); 5 C.F.R. part 2425 and §§ 2425.4(c), 2425.7, and 2429.5
• Outcome: The Authority dismissed all union exceptions and left the attorney-fee denial in place.
• Key point: A party cannot base exceptions on a contract provision that it should have presented to the arbitrator but did not.

Full text (FLRA public release)

69 FLRA No. 46

NATIONAL TREASURY

EMPLOYEES UNION

CHAPTER 52

(Union)

and

UNITED STATES

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WAGE & INVESTMENT DIVISION

AUSTIN, TEXAS

(Agency)

0‑AR‑5174

_____

ORDER DISMISSING EXCEPTIONS

April 19, 2016

_____

Before the Authority: Carol Waller Pope, Chairman, and

Ernest DuBester and Patrick Pizzella, Members

This matter is before the Authority on exceptions to an award of Arbitrator I. B. Helburn filed by the Union under § 7122(a) of the Federal Service Labor‑Management Relations Statute and part 2425 of the Authority’s Regulations. The Agency filed an opposition to the Union’s exceptions.

We have determined that this case is appropriate for issuance as an expedited, abbreviated decision under § 2425.7 of the Authority’s Regulations.

Sections 2425.4(c) and 2429.5 of the Authority’s Regulations bar consideration of the Union’s exceptions. The Union argues that the denial of attorney fees is contrary to the Back Pay Act, fails to draw its essence from the parties’ agreement, and is based on a nonfact because Article 18 of the parties’ agreement, incorporating the parties’ National Performance Awards Agreement, mandates the payment of performance awards. The Union should have known to raise Article 18 of the parties’ agreement before the Arbitrator, but the Union has not demonstrated that it did so. Therefore, we dismiss the exceptions.

Accordingly, we dismiss the Union’s exceptions.

5 U.S.C. § 7122(a).

5 C.F.R. pt. 2425.

Id. § 2425.7 (“Even absent a [party’s] request, the Authority may issue expedited, abbreviated decisions in appropriate cases.”).

Id. §§ 2425.4(c), 2429.5.

5 U.S.C. § 5596.

U.S. DHS, U.S. CBP, 66 FLRA 335, 337-38 (2011) (where a party should have known to make an argument to the arbitrator, but the record does not indicate that the party did so, §§ 2425.4(c) and 2429.5 of the Authority’s Regulations bar the party from raising that argument to the Authority).