National Treasury Employees Union (Union) and United States Department of the Treasury, Internal Revenue Service, Office of Chief Counsel, Washington, D.C. (Agency) (Authority decision, September 25, 2012)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying reconsideration of a negotiability decision. 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

The IRS Office of Chief Counsel asked the Authority to reconsider an order requiring it to rescind disapproval of a union contract provision affecting discipline. The agency argued that the Authority should return to an older test for deciding whether an agreed provision excessively interferes with management rights. The Authority had considered that argument in its earlier decision and retained the newer standard, which asks whether the provision abrogates the management right. It found that the motion repeated the same disagreement and showed no extraordinary circumstances for reconsideration. The earlier order to rescind disapproval of the provision therefore remains in place.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(3); 5 C.F.R. § 2429.17
• Outcome: Agency motion for reconsideration denied; the earlier order to rescind disapproval of the contract provision remains.
• Key point: Repeating an objection to the Authority's chosen legal standard does not justify reconsideration.

Full text (FLRA public release)

66 FLRA No. 185

NATIONAL TREASURY

EMPLOYEES UNION

(Union)

and

UNITED STATES

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

OFFICE OF CHIEF COUNSEL

WASHINGTON, D.C.

(Agency)

0-NG-3130

(66 FLRA 809 (2012))

_____

ORDER DENYING

MOTION FOR RECONSIDERATION

September 25, 2012

_____

Before the Authority: Carol Waller Pope, Chairman, and

Ernest DuBester, Member

I. Statement of the Case

This matter is before the Authority on the Agency’s motion for reconsideration (motion) of the Authority’s decision in NTEU, 66 FLRA 809 (2012) (NTEU) (Member Beck dissenting). The Union did not file an opposition to the Agency’s motion.

Section 2429.17 of the Authority’s Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority final decision or order. For the reasons that follow, we find that the Agency has not established extraordinary circumstances warranting reconsideration of NTEU. Accordingly, we deny the Agency’s motion.

II. Background

In National Treasury Employees Union, 65 FLRA 509 (2011) (Treasury), the Authority modified the standard for determining, in the negotiability context, whether an agreed-upon contract provision constitutes an appropriate arrangement within the meaning of § 7106(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute). Treasury, 65 FLRA at 509. The Authority stated that it would “make that determination by applying an abrogation (waiver) — not an excessive-interference — standard.” Id. The Agency appealed Treasury to the United States Court of Appeals for the District of Columbia Circuit, which dismissed the appeal for lack of jurisdiction. U.S. Dep’t of the Treasury, Bureau of the Pub. Debt, Wash., D.C. v. FLRA, 670 F.3d 1315, 1321 (D.C. Cir. 2012).

In NTEU — the decision at issue in the motion in this case — the Agency noted that a provision that had been disapproved on agency-head review was “similar to a provision found negotiable” in Treasury. Statement of Position (SOP) at 3. But the Agency argued that Treasury was “improperly decided” because the Authority should have applied the excessive-interference standard, rather than adopting the abrogation standard.* Id. at 3-4. In support of its view that the provision “‘excessively interferes’ with management’s right to discipline,” the Agency “incorporate[d] by reference arguments set forth in the briefs filed by the Department of Justice [(DOJ briefs)] in support of the [Agency’s] appeal” of Treasury. Id. at 4; see also Reply at 2. In its response, the Union requested that the Authority “continue to apply the ‘abrogation’ test introduced in” Treasury. Response at 2.

The Authority acknowledged that the Agency had requested, for the reasons asserted in the DOJ briefs, that the Authority return to the excessive-interference standard that existed prior to Treasury. NTEU, 66 FLRA at 811; see also id. at 812 n.8. But the Authority stated that it had “explained the reasons for adopting an abrogation standard” in Treasury, 65 FLRA at 511-15, and that, for the same reasons, it would decline to return to the excessive-interference standard that existed prior to Treasury. NTEU, 66 FLRA

at 812 n.8. The Authority found that the relevant provision did not abrogate management’s right to discipline and, thus, was not inconsistent with law, rule, or regulation. See id. at 812-13. Therefore, the Authority ordered the Agency to rescind its disapproval of the provision. See id. at 813.

III. Motion for Reconsideration

The Agency argues that the Authority has “not adequately justified its departure” from pre-Treasury precedent, and that the “new analytical framework” set forth in Treasury is “not consistent with the plain language nor the intent and purpose of the Statute.” Motion at 3. The Agency requests that the Authority “reconsider its decision in the case at hand . . . and return to its pre-[Treasury] precedent applying the excessive interference analysis to [provisions] disapproved during agency[-]head review.” Id. at 17. To support its motion, the Agency asserts that the Authority “did not address any of the arguments set forth in the [DOJ briefs] incorporated by reference in the” Agency’s SOP, id. at 3, and makes numerous legal arguments that challenge the Authority’s decision in NTEU not to return to the excessive-interference standard that existed prior to Treasury, see Motion at 9-18.

IV. Analysis and Conclusions

Section 2429.17 of the Authority’s Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. E.g., Nat’l Ass’n of Indep. Labor, Local 15, 65 FLRA 666, 667 (2011). A party seeking reconsideration under § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. Id. The Authority has identified a limited number of situations in which extraordinary circumstances were found to exist. E.g., U.S. Dep’t of the Navy, Marine Corps Depot Maint. Command, Barstow, Cal., 66 FLRA 708, 709 (2012). 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. Id. The Authority has held that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. E.g., U.S. Dep’t of Homeland Sec., U.S. Customs & Border Prot., 66 FLRA 634, 636 (2012) (CBP).

The Agency argues that the Authority did not address any of the arguments set forth in the DOJ briefs and incorporated by reference in the Agency’s SOP, Motion at 3, and makes numerous legal arguments that challenge the Authority’s decision in NTEU not to return to the excessive-interference standard that existed prior to Treasury, see Motion at 9-18. In NTEU, the Authority acknowledged that the Agency had requested, for the reasons asserted in the DOJ briefs, that the Authority return to the excessive-interference standard that existed prior to Treasury. See NTEU, 66 FLRA at 811, 812 n.8. But the Authority concluded that it would not return to the excessive-interference standard, for the reasons set forth in Treasury. See NTEU, 66 FLRA at 812 n.8 (citing Treasury, 65 FLRA at 511-15). All of the arguments in the Agency’s motion attempt to relitigate that conclusion. See Motion 9-18. As such, those arguments do not establish extraordinary circumstances warranting reconsideration of NTEU. See, e.g., CBP, 66 FLRA at 636. Accordingly, we deny the Agency’s motion.

V. Order

The Agency’s motion is denied.

• The underlying matter involved an additional provision that was disapproved on agency-head review. See NTEU, 66 FLRA at 810, 813-15. The Agency does not seek reconsideration with regard to that provision. See Motion at 1.