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

[ v60 p893 ]

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 p894 ]

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