Independent Union of Pension Employees for Democracy and Justice and Pension Benefit Guaranty Corporation (agency decision, June 14, 2022)

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

Plain-English summary

The Independent Union of Pension Employees for Democracy and Justice submitted two electronic exception forms challenging an arbitration award involving the Pension Benefit Guaranty Corporation. It uploaded the award and exhibits but supplied no argument in either form and attached no exceptions brief. The Authority's regulations require exceptions to state a recognized ground for review and to be self-contained. Because neither filing explained why the award should be set aside, the Authority had no basis to review it. The Authority dismissed both sets of exceptions without deciding the parties' timing motions or the merits of the award.

Decision snapshot

• Authority: 5 U.S.C. §§ 7122 and 7123(a)(1); 5 C.F.R. §§ 2425.4(a)(1), 2425.6(a), 2425.6(b), 2425.6(c), and 2425.6(e)(1)
• Outcome: The Authority dismissed the Union's exceptions because neither filing stated a ground for review.
• Key point: Uploading an award and exhibits is not enough; exceptions must include a self-contained argument identifying a legally recognized basis for setting the award aside.

Full text (FLRA public release)

73 FLRA No. 14

INDEPENDENT UNION

OF PENSION EMPLOYEES FOR

DEMOCRACY AND JUSTICE

(Union)

and

PENSION BENEFIT

GUARANTY CORPORATION

(Agency)

0‑AR‑5792

ORDER DISMISSING EXCEPTIONS

June 14, 2022

Before the Authority: Ernest DuBester, Chairman, and

Colleen Duffy Kiko and Susan Tsui Grundmann, Members

Statement of the Case

The Union filed two sets of exceptions to Arbitrator C. Allen Foster’s award. Because the Union fails to make any arguments about the award, the Union’s exceptions do not raise a ground for review. Accordingly, we dismiss the exceptions.

Background

The Arbitrator served the award on the parties by email on December 14, 2021. The Union filed an exceptions form (initial exceptions) using the Federal Labor Relations Authority’s (FLRA’s) eFiling system on January 14, 2022, at 12:00 a.m. The Union successfully uploaded a copy of the award but did not make any arguments within the exceptions form or attach an exceptions brief.[1] Seven minutes later, at 12:07 a.m., the Union filed a second exceptions form (second exceptions) using the FLRA’s eFiling system and successfully uploaded several exhibits. However, the Union once again did not make any arguments within the form or attach an exceptions brief.[2] Later that same day, the Union faxed a motion to the FLRA to “strike the initial [exceptions]” and “accept the second [exceptions] . . . as timely.”[3]

On March 14, 2022, the Agency filed an opposition.

Analysis and Conclusion: The Union’s exceptions do not set forth a ground for review under the Authority’s Regulations.

Under § 2425.4 of the Authority’s Regulations, an excepting party must ensure its exceptions are “self‑contained,” and that it provides “[a] statement of the grounds on which review is requested.”[4] Exceptions “may be subject to dismissal . . . if . . . [t]he excepting party fails to raise” recognized grounds for review listed in § 2425.6(a)‑(c) or “otherwise fails to demonstrate a legally recognized basis for setting aside the award.”[5]

As neither of the Union’s filings provide the Authority a statement of the grounds on which review is requested, there is no basis for reviewing the award.[6] Consequently, we dismiss the exceptions.[7]

Decision

We dismiss the Union’s exceptions.

[1] In the Union’s first electronic exceptions form, the section where the Union could upload a brief said, “Empty but *[r]equired.” Exceptions Form (Initial Exceptions Form) at 2.

[2] In the Union’s second electronic exceptions form, the section where the Union could upload a brief said, “Empty but *[r]equired.” Exceptions Form (Second Exceptions Form) at 2.

[3] Union Mot. to Strike at 2.

[4] 5 C.F.R. § 2425.4(a)(1); see id. § 2425.6(a)-(c) (detailing the grounds under which the Authority will review arbitration awards).

[5] Id. § 2425.6(e)(1); see AFGE, Loc. 446, 72 FLRA 54, 55 n.21 (2021) (Loc. 446) (Chairman Kiko concurring).

[6] See Loc. 446, 72 FLRA at 54‑55 (dismissing exceptions that “d[id] not articulate any grounds currently recognized for review” where excepting party attached only its post‑hearing brief and did not make any arguments); AFGE, Loc. 3955, Council of Prison Locs. 33, 65 FLRA 887, 889 (2011) (Member Beck dissenting in part) (dismissing exceptions because the excepting party failed to raise grounds recognized for review by the Authority and did not cite any legal authority to support a ground currently not recognized by the Authority).

[7] On February 9, 2022, the Agency requested leave to file, and did file, two motions: (1) a motion to stay Authority proceedings or extend the opposition deadline and (2) a motion to dismiss the Union’s exceptions as untimely. The Union requested leave to file, and did file, a response to the Agency’s motion to dismiss on February 15, 2022. On February 23, 2022, the Agency also requested leave to file, and did file, an additional motion to extend the opposition deadline. As we are dismissing the Union’s exceptions, it is unnecessary to address any of the parties’ motions. See, e.g., U.S. Dep’t of the Interior, Bureau of Indian Affs., Wapato Irrigation Project, 65 FLRA 5, 6 n.2 (2010) (Member Beck dissenting) (finding it unnecessary to address the parties’ remaining arguments when dismissing exceptions). Similarly, it is unnecessary to address whether the Union’s procedurally deficient exceptions were timely. Cf. AFGE, Nat’l Joint Council of Food Inspection Locs., 64 FLRA 1116, 1118 n.2 (2010) (after dismissing an exception under one subpart of the Authority’s Regulations, finding it unnecessary to address whether the exception was also deficient under another subpart of the Authority’s Regulations); AFGE, Loc. 131, 60 FLRA 999, 999 n.* (2005) (finding it unnecessary to reach the question of whether the opposition was timely filed because the excepting party failed to establish that the award was deficient).