Arbitrator Louise Berman Wolitz found that the Agency violated the parties’ collective‑bargaining agreement, a number of statutory provisions,^[1] and a Federal Register notice (the Notice)^[2] by not immediately extending the Foreign Language Award Program (FLAP) to employees represented by the Union after they were merged with another bargaining unit that had been receiving FLAP awards. The Agency filed exceptions to the Arbitrator’s award, and in U.S. DHS, U.S. CBP (Customs I),^[3] the Authority rejected the Arbitrator’s conclusion that the Agency violated federal law. Because the Arbitrator’s finding of a contractual violation was based solely on her finding that the Agency violated federal law, the Authority set aside the award in its entirety.

 

 

The facts are set forth in detail in Customs I and are only briefly summarized here. The Homeland Security Act of 2002 (the Act)^[4] resulted in the merger of the inspection functions of the Immigration and Naturalization Service (INS) and the U.S. Customs Service (USCS) into a single agency – U.S. Customs and Border Protection. After the merger, customs inspectors, who had been receiving FLAP awards at USCS, continued to receive FLAP awards. However, following the merger, the Agency did not immediately extend FLAP eligibility to immigration inspectors, who had not been receiving these awards at INS.

 

 

 

 

 

The Arbitrator determined that the Agency violated the Act, the Notice, and 5 U.S.C. § 267a, which authorizes FLAPs. Based on her conclusion that these authorities implemented the merit‑system principle of equal pay for equal work,^[6] the Arbitrator determined that the violations constituted a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) and, as relevant here, that “[t]hey further establish[ed] [a] violation of Article 11 of the [parties’ a]greement.”^[7]

 

 

                The Authority’s Regulations do not provide for responses to motions for reconsideration. And, while a party may request leave to file additional documents under § 2429.26 of the Authority’s Regulations,^[8] the Agency did not request leave to do so here. Accordingly, we have not considered the Agency’s response.^[9]

 

                Further, in its motion for reconsideration, the Union seeks clarification of our decision under § 2425.9 of the Authority’s Regulations.^[10] However, that provision provides that “[w]hen required to clarify a record or when it would otherwise aid in disposition of the matter, the Authority . . . may . . . [d]irect the parties to provide specific documentary evidence . . . [or] respond to requests for further information . . . .”^[11] It does not permit a party to request that the Authority clarify its decisions. Accordingly, we deny the Union’s request for clarification.

                Section 2429.17 of the Authority’s Regulations permits a party to request reconsideration of an Authority decision if it can establish extraordinary circumstances.^[12] A party seeking reconsideration bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action.^[13] The Authority has found that errors in its conclusions of law or factual findings constitute extraordinary circumstances that may justify reconsideration.^[14] The Authority also has found extraordinary circumstances where an intervening court decision or change in the law affected dispositive issues, or the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision.^[15] But attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances.^[16] 

 

                The Union argues that extraordinary circumstances warrant reconsideration because the Authority erred by “not consider[ing] the separate contractual basis relied upon by the Arbitrator in her award – namely, Article 11.B(11).”^[17] 

 

First, the Authority considered and rejected the Union’s arguments concerning Article 11 in Customs I. Specifically, the Authority explained that the Arbitrator’s “finding that the Agency violated § 2302(b)(12) require[d] a finding that the Agency violated a ‘law, rule, or regulation implementing, or directly concerning, the merit[‑]system principles,’”^[18] and that “Article 11.B(11) essentially repeats 5 U.S.C. § 2302(b)(12).”^[19] Thus, the Authority set aside the award in its entirety “as the Arbitrator’s finding of a contractual violation was based solely on [her finding of] legal violations, which [the Authority] set aside.”^[20] 

 

Second, contrary to the Union, the Arbitrator did not rely on Article 11.B(11) as an independent basis for her award. Rather, the Arbitrator found that the Agency’s “violations [of law] . . . establish[ed] [a] violation of Article 11.”^[21] Moreover, this interpretation is supported by the plain text of Article 11.B(11) – which forbids the Agency from “tak[ing] any . . . personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning the merit[‑]system principles.”^[22]

 

 

 

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