National Treasury Employees Union (Union) and United States Department of Homeland Security, U.S. Customs and Border Protection (Agency)


66 FLRA No. 184                              
(66 FLRA 892 (2012))
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 U.S. Department of Homeland Security’s (DHS’s) motion for reconsideration (motion) of the Authority’s decision in NTEU, 66 FLRA 892 (2012). The Union filed an opposition to DHS’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 DHS has not established extraordinary circumstances warranting reconsideration of NTEU. Therefore, we deny DHS’s motion.
II.            Decision in NTEU
                In NTEU, the Authority ordered DHS to rescind its disapproval of a provision that requires any representative of the Agency – including a representative of DHS’s Office of Inspector General (DHS‑OIG) – to follow the procedures set forth in Article 22 of the relevant collective-bargaining agreement whenever the representative interviews bargaining-unit employees regarding any criminal or noncriminal matter. 66 FLRA at 892. Specifically, the Authority rejected DHS’s argument that the provision is inconsistent with the Inspector General Act of 1978 (the IG Act). 
                The Authority made two general determinations in this regard.
First, the Authority determined that DHS had not shown that the IG Act completely forecloses bargaining over investigation procedures employed by the DHS‑OIG (IG-investigation procedures), “regardless of the nature of the particular procedures at issue.” Id. at 897. Specifically, the Authority rejected DHS’s reliance on U.S. Nuclear Regulatory Commission, Washington, D.C. v. FLRA, 25 F.3d 229 (4th Cir. 1994) (NRC), by stating that “to the extent that NRC holds that parties may not bargain over any IG‑investigation procedures, regardless of their particular terms, we respectfully disagree.” NTEU, 66 FLRA at 894. For support, the Authority relied on various principles and authorities, including the United States Supreme Court’s holding in NASA v. FLRA, 527 U.S. 229 (1999) (NASA) that the right to representation set forth in § 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute) applies to OIG investigations. See NTEU, 66 FLRA at 895. In this regard, the Authority acknowledged that the Supreme Court in NASA “did not resolve whether it would conflict with the IG Act to require bargaining over IG‑investigation procedures,” id. (citing NASA, 527 U.S. at 244 n.8),but reasoned that “the Supreme Court held that, regardless of IGs’ statutory authority to conduct independent investigations, that independence is not unfettered and may be limited by rights set forth in other laws,” id. (citing NASA, 527 U.S. at 242-43). The Authority also found that DHS had not shown that the Statute or “any provision of the IG Act or its legislative history” indicate that        “IG-investigation procedures are entirely nonnegotiable, regardless of their particular terms.” Id. at 895-96. 
Second, the Authority held that DHS did not meet its “regulatory burden to demonstrate that the provision is contrary to any specific terms of the IG Act.” Id. at 898. Specifically, the Authority found that DHS cited only one section of the                                   IG Act – § 6(a)(2) – and did so only indirectly. Id. at 899. Moreover, the Authority stated that DHS did not “provide any arguments regarding how any of the        [IG-investigation procedures] . . . of Article 22 are contrary to that [section].” Id. In this regard, the Authority noted that DHS “quote[d] . . . Sections 3 and 5” of Article 22, id., and asserted that the procedures required by these sections impermissibly “interfere[] with the OIG’s statutory right to conduct independent investigations,” id. (quoting DHS Statement of Position (SOP) at 6) (internal quotation marks omitted). But the Authority found that this “blanket assertion” was “insufficient to demonstrate that the provision is contrary to the IG Act.” Id.   
III.          Positions of the Parties
                A.            DHS’s Motion for Reconsideration
                DHS argues that NTEU warrants reconsideration because “the Authority misapprehended the facts of [DHS’s] argument, resulting in an erroneous conclusion of law.” Motion at 1. Regarding the Authority’s first determination, DHS argues that “[t]he Authority erred in its reasoning that the [U.S. Supreme] Court overruled or otherwise limited the NRC holding in NASA when, in fact, it expressly declined to do just that.” Id. at 4 (citing NASA, 527 U.S. at 244 n.8). Thus, DHS asserts that NASA is not dispositive, id. at 6, and that the holding in NRC that proposals concerning IG‑investigation procedures conflict with the IG Act applies here, id.       at 4-6 (citing NRC, 25 F.3d at 235‑36). 
                Concerning the Authority’s second determination, DHS argues that by citing § 6(a)(2) of the IG Act, id. at 2-3, and arguing that IG-investigation procedures like those in Sections 3 and 5 of Article 22 “impermissibly interfere with the OIG’s ability to conduct independent investigations,” id. at 3, DHS provided sufficient specific authority for its position that the disputed provision is “contrary to” the IG Act and the NRC decision, id. at 3-4. Accordingly, DHS claims that it “did not rely on a mere ‘blanket assertion’ in its SOP,” id. at 3 (quoting NTEU, 66 FLRA at 899), andargues that the Authority “based its conclusion of law on a mistake of fact,” id. at 2.
B.            Union’s Opposition
                The Union argues that DHS has not shown the “extraordinary circumstances” necessary to warrant reconsideration because DHS’s arguments merely “attempt to [relitigate] the merits of the underlying case.” Opp’n at 1-2.
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.; U.S. Dep’t of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995) (Scott Air Force Base). As relevant here, the Authority has found that errors in its conclusions of law or factual findings constitute extraordinary circumstances that may justify reconsideration. See, e.g., U.S. Dep’t of Justice, Fed. Bureau of Prisons, U.S. Penitentiary, Atwater, Cal., 65 FLRA 256, 257 (2010)