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  • National Treasury Employees Union, Chapter 137 (Union) and United States, Department of Homeland Security, Bureau of Customs and Border Protection (Agency)

National Treasury Employees Union, Chapter 137 (Union) and United States, Department of Homeland Security, Bureau of Customs and Border Protection (Agency)

[ v61 p60 ]

61 FLRA No. 10

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 137
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS AND
BORDER PROTECTION
(Agency)

0-AR-3823
(60 FLRA 483 (2004))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

June 27, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This case is before the Authority on the Union's motion for reconsideration of the Authority's decision in 60 FLRA 483 (2004) (Chairman Cabaniss concurring).

      Section 2429.17 of the Authority's Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. We conclude that the Union has failed to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Union's motion.

II.      Decision in NTEU, Chapter 137, 60 FLRA 483

      This case arises out of a dispute stemming from the Agency's implementation in 2001 of its revised National Inspectional Assignment Policy (RNIAP), which replaced an earlier NIAP that had been negotiated and implemented in 1995. The 1995 NIAP provided for the local negotiation of matters set forth in § 7106(b)(1) of the Statute, including staffing levels and tours of duty at the local level. In United States Dep't of the Treasury, Customs Service, Wash., D.C., 59 FLRA 703 (2004) (Member Pope concurring) (Customs Service), petition for review filed sub nom. NTEU v. FLRA, No. 04-1137 (D.C. Cir. Apr. 22, 2004), the Authority concluded that the Agency's implementation of the RNIAP was lawful.

      The Arbitrator, citing the Authority's decision in Customs Service, ruled that under the RNIAP, the Agency was not obligated to bargain with the Union at the local level concerning the change in assignment of overtime to supervisors at the Fort Pierce station. [n1]  The Arbitrator found that the RNIAP terminated the Agency's obligation to bargain at the local level and that the local change at the Fort Pierce station was "covered by" the RNIAP. Award at 27. The Arbitrator further stated that "[w]hen the parties negotiate their next National Agreement, the mandatory subjects involving the implementation of the Agency's policy on inspectional assignment are once again subject to the Statute's bargaining obligation[, and] [a]t that point, the Agency will be required to bargain with the Union." Id.

      The Authority found that the Arbitrator's award, which concluded that the Agency did not have an obligation to bargain at the local level over the change in Sunday overtime assignments to supervisory personnel at Fort Pierce, was consistent with law. The Authority found that under section 3 of the lawfully implemented RNIAP, the Agency terminated its obligation to bargain at the local level over inspectional assignment matters.  [n2]  In reaching this conclusion, the Authority explained that the statutory bargaining obligation with respect to inspectional assignment matters resides at the level of exclusive recognition, that is, at the national level. The Authority noted that under Authority precedent, it is well established that there is no statutory obligation to bargain below the level of recognition. The Authority [ v61 p61 ] further explained that consistent with the parties' ability to negotiate over permissive subjects of bargaining, the parties at the national level agreed to negotiate at levels below the level of exclusive recognition -- that is, at local levels -- over LIAPs that addressed staffing practices based on the specific needs of each port. 60 FLRA at 486.

      The Authority found that when the parties' National Labor Agreement (NLA) expired in 1999, either party was free to lawfully terminate permissively negotiated matters. The Authority held that the Agency acted lawfully in section 3 of the RNIAP by terminating its permissively negotiated obligation under Article 37 of the expired NLA and the NIAP to bargain at the local level over inspectional assignment matters. As such, the Authority found that "the Arbitrator's conclusion that, following the Agency's lawful implementation of the RNIAP, the Agency did not have an obligation to bargain at the local level over the change in Sunday overtime assignment to supervisory personnel at Fort Pierce is consistent with law." 60 FLRA at 487.

      Lastly, the Authority found that the Arbitrator erred in stating that the Agency is required to bargain only during negotiations on the next national agreement. In this respect, the Authority found that Section 3 of the RNIAP "did not extinguish the Agency's statutory bargaining obligations at the national level (that is, at the level of exclusive recognition) to bargain over all mandatory subjects of bargaining concerning overtime inspectional assignments." Id. at 488. Also, the Authority noted that "the Agency acknowledge[d] that itcontinues to have an obligation to bargain at the national level over assignment-related matters and that section 3 does not constitute a waiver of the Union's statutory rights to bargain at the national level over future changes in inspectional assignment policies." Id. (citing Agency's Opposition at 8). Further, the Authority found that the Arbitrator's erroneous statement did "not undermine the validity of his conclusion that the Agency was not obligated to bargain at the local level over the change in assignment policy, under the terms of the RNIAP." Id.

III.      Motion for Reconsideration

      The Union contends that extraordinary circumstances are present in this case that warrant reconsideration of the Authority's decision in NTEU, Chapter 137. First, the Union maintains that the Authority "misconstrued the issues before the [A]rbitrator, when it considered only the question of whether the [A]gency was obligated to bargain" at the local level with the Union. Motion at 3. The Union maintains that "the broader issue raised in the grievance, framed by the [A]rbitrator, and clearly established in the stipulated record below was whether the [A]gency's unilateral implementation of changes in overtime work assignment practices was violative of 5 USC § 7116(a)(1) and (a)(5)" of the Statute, in relation to the "entire scope of the [A]gency's bargaining obligation." Id. at 3-4. In this respect, the Union relies on paragraph 27 of the stipulation that stated that the "Agency implemented the changes in work assignments . . . without notice to NTEU Chapter 137 or NTEU at the national level or provid[ing] NTEU with an opportunity to bargain over the impact, implementation or adverse affects of those changes in working conditions." Id. at 4.

      Second, the Union maintains that the Authority's failure to find that the Agency violated the Statute is contrary to law since the Authority found that "the [A]gency retained its obligation to bargain the changes here at the national level[,]" and the Agency conceded that it failed to provide the Union notice and an opportunity to bargain at the national level. Id. at 5-6.

      Third, the Union maintains that the Authority should reconsider NTEU, Chapter 137, as it erred by not entering an appropriate remedial order for the Agency's violation of the Statute in failing to provide the Union notice and an opportunity to bargain at the national level over the changes in this case. Id. at 6. The Union states that if the Authority grants its motion for reconsideration, then it would not object to a remand to the Arbitrator "to fashion an appropriate remedy for the clear violations of law[, as] . . . such a remand would be consistent with the parties' stipulations to the [A]rbitrator" to fashion an appropriate remedy. Id. at 6 n.8 (citing Stipulation 28 in Award).

      Fourth, the Union maintains that the Authority's finding that the Agency properly rescinded its bargaining obligation at the local level is contrary to law and Authority precedent that requires clear and specific notice of intent to terminate a negotiated clause concerning a permissive matter, such as Article 37 of the NLA. Id. at 7, citing United States Dep't of Justice, Fed. Bureau of Prisons, FCI Danbury, Danbury, Conn., 55 FLRA 201 (1999) (DOJ). The Union maintains that the RNIAP and the August 2, 2001 transmittal letter did not provide clear and specific notice of the Agency's termination of its bargaining obligations at the local level since "[t]here is no mention or even a reference to [A]rticle 37, sections 3 or 6 of the NLA[,]" and "there is not one word in the RNIAP regarding the level of bargaining." Id. at 7-8. Rather, the Union contends that the RNIAP and the August 2, 2001 transmittal letter provided clear and specific notice solely of the Agency's [ v61 p62 ] intent to terminate its obligations to bargain over § 7106(b)(1) matters. Thus, the Union argues that the Authority's determination that the RNIAP rescinded the Agency's local bargaining obligation is contrary to DOJ and not supported by the record below.

IV.      Agency's Opposition to Union's Motion

      The Agency maintains that the Union's motion should be denied as the Union has failed to demonstrate extraordinary circumstances warranting reconsideration of the Authority's decision. The Agency maintains that the Authority "appropriately ruled that the Agency did not have an obligation to bargain over the change in the Fort Pierce assignment." Opposition at 1. Also, the Agency maintains that Section 3 of the RNIAP "superseded all prior agreements, policies, and practices, national or local, which would clearly encompass the Fort Pierce assignment in this case." Id. at 2.

V.      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. 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 (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 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.

      As to the Union's first claim, we conclude that the Union has failed to establish that the Authority erroneously limited the scope of the issue before the Arbitrator solely in terms of the Agency's obligation to bargain at the local level, as opposed to any level including the national level. Contrary to the Union's assertions, review of the Arbitrator's decision, the grievance, and the stipulated record does not establish that the Authority erred in addressing the Agency's alleged violation of the Statute solely in terms of the Agency's bargaining obligation at the local level. In reviewing the Arbitrator's award, we find that the Arbitrator addressed and resolved the scope of the Agency's bargaining obligations with the Union in terms of the Agency's obligation to bargain at the local level. As noted in NTEU, Chapter 137, in addressing "whether under the revised `lawful' [RNIAP] the Agency had the obligation to bargain with the Union about the Ft. Pierce Sunday overtime assignment," the Arbitrator concluded:

[This is] an area where there cannot be too much controversy. Local bargaining is abolished under the [RNIAP]. The Agency's local action must stand, and the grievance must be denied.

60 FLRA at 484 (quoting Award at 27).

      With regard to the grievance, the Union correctly notes that the grievance alleges that the Agency violated the parties' NLA, NIAP, past practice and local assignment policy, as well as § 7116(a)(1) and (5). However, the grievance describes the Agency's statutory violation at the local level in terms of the "implementation of a new policy by the Port Director without bargaining." Attachment to Union's Motion, Grievance at 2. Moreover, the overall statement of the circumstances giving rise to the dispute focuses entirely on the local Port Director's actions and refusal to resolve the dispute at the lowest level possible by meeting formally with the local Chief Steward.

      With regard to the stipulated record, we find that the Union's reliance on paragraph 27 of the stipulation is misplaced. We note that the Arbitrator resolved only the issue of local-level bargaining and that the following paragraphs of the stipulation clearly set forth the alleged violation before the Arbitrator solely in terms of the Agency's bargaining obligation at the local level:

22.      Without providing the Union an opportunity to bargain at the local level or to re-visit the local agreement (LIAP), managerial personnel on October 7, 2001 assigned a supervisor who was on a regularly scheduled shift to perform inspectional duties in lieu of assigning a bargaining unit inspector on overtime.
23.      When the Agency did not provide the local Union with an opportunity to bargain over the October 7, 2001 supervisory assignment[,] . . . the Union filed the instant [ v61 p63 ] grievance on October 31, 2001 alleging inter alia that the Agency violated the local NIAP, past practice and committed an [u]nfair [l]abor [p]ractice in violation of 5 USC § 7116(a)(1) and (a)(5).

Award at 10. Based on the foregoing, the Union has failed to establish extraordinary circumstances warranting reconsideration of the Authority's finding that the grievance involved solely the Agency's obligation to bargain at the local level over the change in assignment policy at the Fort Pierce station.

      Regarding the Union's second claim, we find that the Union has failed to demonstrate that the Authority erred in not finding a violation of the Statute based on the Agency's undisputed failure to provide the Union with notice and an opportunity to bargain at the national level. In this respect, the Union correctly notes that the Authority found that Section 3 of the RNIAP did not terminate the Agency's statutory bargaining obligations at the national level over all mandatory subjects of bargaining concerning overtime inspectional assignments. However, as discussed above, this case involved solely the Agency's obligation to bargain at the local level over the change in assignment policy at the Fort Pierce station. As such, the Agency's obligation to bargain at the national level over the change in assignment policy at Fort Pierce was not at issue in this case. Thus, the Union has failed to establish extraordinary circumstances warranting reconsideration of the Authority's decision not finding a violation of the Statute with respect to the Agency's obligation to bargain at the national level.

      With respect to the Union's third claim, we find, consistent with the foregoing, that the Union has not demonstrated that the Authority erred in not ordering a remedy in this case for the Agency's alleged failure to bargain with the Union beyond the local level.

      Regarding the Union's fourth claim, we find that the Union has not demonstrated that the Authority's finding that the clear terms of Section 3 of the RNIAP properly terminated the Agency's obligation to bargain at the local level over inspectional assignment matters is contrary to Authority precedent. The Union contends that since the RNIAP did not expressly mention Article 37 or levels of bargaining, the Authority's finding conflicts with DOJ that requires clear and specific notice of intent to terminate a permissively negotiated obligation to bargain at the local level over inspectional assignment matters. In our view, these allegations simply attempt to relitigate the conclusions of the Authority in 60 FLRA 483 and provide no basis for reconsideration. With the lawful implementation of the RNIAP, the language of Section 3 clearly established the RNIAP as the governing policies and procedures "tak[ing] precedence over any and all other agreements . . . applied by the parties previously, at either the national or local levels" with respect to inspectional assignment matters. Moreover, Section 3 clearly stated the Agency's intent not to engage in any further bargaining over inspectional assignment matters. As such, Section 3 unambiguously terminated the Agency's obligation to bargain on inspectional assignment matters at the local level imposed by Article 37. Thus, the Union's assertions fail to establish extraordinary circumstances warranting reconsideration of the Authority's decision.

      Accordingly, we deny the Union's motion.

VI.      Order

      The Union's motion for reconsideration is denied.

Footnote # 1 for 61 FLRA No. 10 - Authority's Decision

   As relevant here, a Local Inspectional Assignment Policy (LIAP) was negotiated in February 1996 between NTEU, Chapter 137 (the local Union) and the Port of West Palm Beach, which includes the Fort Pierce station. The LIAP provided that "Sunday assignments and cruise passenger overtime will be scheduled according to current practice," whereby local management offered non-supervisory personnel overtime for inspectional assignments on Sundays prior to offering such assignments to supervisory personnel. Award at 10 (quoting Ft. Pierce Jt. Ex. 4).

Footnote # 2 for 61 FLRA No. 10 - Authority's Decision

   Section 3 of the RNIAP states, in pertinent part:

The policies and procedures contained in this [RNIAP] take precedence over any and all other agreements, policies, or other documents or practices executed or applied by the parties previously, at either the national or local levels, concerning matters covered within this [RNIAP].
. . . . No further obligation to consult, confer, or negotiate, either upon the substance or impact and implementation of any decision or action, shall arise upon the exercise of any provision, procedure, right or responsibility addressed or contained within this [RNIAP].