National Association of Government Employees, Local R3-10, SEIU (Union) and United States Department of Transportation, Federal Aviation Administration (Agency) (Authority decision, July 29, 2016)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This abbreviated decision does not state that the award involves an unfair labor practice.

Plain-English summary

NAGE Local R3-10 filed exceptions to an arbitration award involving the Federal Aviation Administration. The Authority declined to consider a reply that only repeated or could have added arguments already available in the union's exceptions. It dismissed a claim that the arbitrator violated the agreement because the union had not identified a recognized ground for review, denied an unsupported exceeded-authority claim, and rejected the remaining nonfact challenge. The expedited public release does not describe the underlying grievance or the arbitrator's result. The arbitration award remained in place.

Decision snapshot

• Authority: 5 U.S.C. §§ 7122(a) and 7123(a)(1); 5 C.F.R. part 2425 and §§ 2425.6 and 2425.7
• Outcome: The Authority dismissed one union exception and denied the others, leaving the arbitration award in place.
• Key point: An exception must identify and support a recognized ground for review, and a disputed or noncontrolling factual claim does not establish a nonfact.

Full text (FLRA public release)

69 FLRA No. 71

NATIONAL ASSOCIATION

OF GOVERNMENT EMPLOYEES

LOCAL R3-10

SEIU

(Union)

and

UNITED STATES

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

0‑AR‑5175

_____

DECISION

July 29, 2016

_____

Before the Authority: Carol Waller Pope, Chairman, and

Ernest DuBester and Patrick Pizzella, Members

This matter is before the Authority on exceptions to an award of Arbitrator John Paul Simpkins filed by the Union under § 7122(a) of the Federal Service Labor‑Management Relations Statute (the Statute)[1] and part 2425 of the Authority’s Regulations.[2] The Agency filed an opposition to the Union’s exceptions.

In its opposition, the Agency opposes an expedited, abbreviated decision under § 2425.7 of the Authority’s Regulations,[3] but does not support or explain that position.[4] We have determined that this case is appropriate for issuance as an expedited, abbreviated decision under § 2425.7 of the Authority’s Regulations.[5]

As a preliminary matter, the Union requested permission to file, and did file, a reply to the Agency’s opposition (Union’s reply).[6] But the Union merely makes arguments that it already made, or could have made, in its exceptions. Therefore, because the Union has not demonstrated why the Authority should consider the Union’s reply, we do not consider it.[7]

The Union filed three exceptions. The first, asserting that the Arbitrator violated the parties’ agreement, does not raise a recognized ground for review listed in § 2425.6(a)-(c) of the Authority’s Regulations[8] and does not demonstrate a legally recognized basis for setting aside the award.[9] Therefore, we dismiss this exception under § 2425.6(e)(1) of the Authority’s Regulations.[10]

The Union argues further that the Arbitrator exceeded his authority, but does not support that argument. Therefore, we deny this exception under § 2425.6(e)(1).[11]

As for the Union’s remaining nonfact exception, upon careful consideration of the entire record in this case and Authority precedent, we conclude that the award is not deficient on the ground raised in the exception.[12]

Accordingly, we dismiss, in part, and deny, in part, the Union’s exceptions.

[1] 5 U.S.C. § 7122(a).

[2] 5 C.F.R. pt. 2425.

[3] Id. § 2425.7.

[4] See Agency’s Opp’n at 3.

[5] 5 C.F.R. § 2425.7 (“Even absent a [party’s] request, the Authority may issue expedited, abbreviated decisions in appropriate cases.”).

[6] See generally Union’s Reply to Agency’s Opp’n (Mar. 9, 2016).

[7] U.S. Dep’t of Transp., FAA, 66 FLRA 441, 444 (2012) (citing NTEU, 65 FLRA 302, 305 (2010)) (where a party seeks to raise issues that it could have addressed, or did address, in a previous submission, the Authority ordinarily denies requests to file supplemental submissions concerning those issues).

[8] 5 C.F.R. § 2425.6(a)-(c).

[9] For the same reasons that he articulated in AFGE, Nat’l Border Patrol Council, Local 2455, 69 FLRA 171, 174-75 (2016) (Local 2455) (Concurring Opinion of Member Pizzella), Member Pizzella notes that he would conclude that the Union’s argument – that the Arbitrator “violated” the parties’ agreement – raises an obvious essence exception. He would instead address and deny the exception on its merits.

[10] 5 C.F.R. § 2425.6(e)(1); see also Local 2455, 69 FLRA at 172 (Member Pizzella concurring); AFGE, Local 2272, 67 FLRA 335, 335 n.2 (2014) (citing AFGE, Local 3955, Council of Prison Locals 33, 65 FLRA 887, 889 (2011)) (exceptions are subject to dismissal under § 2425.6(e)(1) of the Authority’s Regulations if they fail to raise a recognized ground for review or, in the case of exceptions based on private-sector grounds not currently recognized by the Authority, if they provide insufficient citation to legal authority establishing grounds upon which the party filed its exceptions).

[11] 5 C.F.R. § 2425.6(e)(1); see also U.S. DOJ, Fed. BOP, Metro. Corr. Ctr., N.Y.C., N.Y., 67 FLRA 442, 450 (2014) (exceptions are subject to denial under § 2425.6(e)(1) of the Authority’s Regulations if they fail to support arguments that raise recognized grounds for review); Fraternal Order of Police, Pentagon Police Labor Comm., 65 FLRA 781, 784-85 (2011) (same).

[12] U.S. Dep’t of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593-94 (1993) (award not deficient as based on a nonfact where excepting party either challenges a factual matter that the parties disputed at arbitration or fails to demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result).