[00:00:02] Speaker 01: Case number 19-1065. [00:02:31] Speaker 04: All right, Council. [00:02:38] Speaker 01: Good morning, Your Honors. [00:02:39] Speaker 01: May it please the Court? [00:02:40] Speaker 01: My name is Eden Brown Gaines, and I am arguing on behalf of the Independent Union of Pension Employees for Democracy and Justice. [00:02:48] Speaker 01: So the union was elected in May of 2011. [00:02:53] Speaker 01: At the same time, a predecessor union and the employer of the Pension Benefit Guarantee Corporation [00:02:59] Speaker 01: We're negotiating a collective bargaining agreement. [00:03:02] Speaker 01: Obviously, the predecessor union and the employer weren't pleased with the result of the election, and the election was challenged. [00:03:11] Speaker 01: When it became clear that the union would be certified, the predecessor union and the employer got together and pursuant to the collective bargaining agreement that they had negotiated, appointed a panel of arbitrators to adjust and hear grievances. [00:03:27] Speaker 01: The panel that the predecessor union and the employer put together [00:03:31] Speaker 01: was not a panel that obviously they wanted to utilize because when a grievance came up after they appointed a panel, they went to the FMCS rather than utilizing that panel to adjust the grievance. [00:03:45] Speaker 00: Counsel, you accept, I think, correct me if I'm wrong, that you were bound by the CBA as opposed to the MLA? [00:03:52] Speaker 01: Absolutely, yes. [00:03:54] Speaker 01: The Union understood that the selection of arbitrators or the fact that the grievance process is a mandatory [00:04:01] Speaker 01: subject of negotiation and even in negotiating a new CBA that they would be bound by the fact that there would be grievances and that there would be a panel. [00:04:11] Speaker 01: The union's issue was with the language of the CBA, which said that the parties were to select mutually a panel of arbitrators, and their qualm was that now that they are the union and the party, that they had not had the opportunity to select the panel of arbitrators. [00:04:28] Speaker 01: They got nowhere with the employer with respect to wanting to participate in this process. [00:04:34] Speaker 01: And so they went to the panel of arbitrators and advised those arbitrators that they had not been mutually selected. [00:04:41] Speaker 01: This case pertains to two of the arbitrators on the panel and not all of the arbitrators that were ultimately selected. [00:04:48] Speaker 01: But when going to one of the arbitrators, Mr. Fagenbaum, he agreed that he had not been mutually selected and mutuality was an important part of the process. [00:04:58] Speaker 01: And so he voluntarily resigned. [00:05:01] Speaker 01: When it came to the second arbitrator, Mr. Conway, [00:05:04] Speaker 01: He did not agree that he should resign and in fact cast the union's request that he voluntarily step down as a motion for recusal and an arbitration that wasn't quite pending at the time. [00:05:16] Speaker 01: So there was back and forth between the union and the arbitrator and the union expressed its opinion both that he should resign because he had not been mutually selected but also that he had an ethical obligation to consider the fact that he had not been mutually selected and consider his resignation. [00:05:34] Speaker 01: Ultimately, the arbitrator did not resign. [00:05:36] Speaker 01: There was an arbitration hearing that went before Mr. Conway. [00:05:42] Speaker 01: The union participated in that arbitration hearing under protest, believing that he did not have jurisdiction, because during the pendency of the back and forth, the employer filed a charge with the FLRA [00:05:53] Speaker 01: concerning the union's conduct in speaking to and procuring the resignation of several of the arbitrators and filed a ULP. [00:06:02] Speaker 00: A moment ago you said although the CBA wasn't binding, is binding, pardon me, the MOA is not. [00:06:10] Speaker 00: Yes. [00:06:10] Speaker 00: Let me ask you, is it your position that in any event you didn't violate the MOA or that you did let us not bind it? [00:06:17] Speaker 01: Well, the MOA wasn't violated because the union actually went forward with the one arbitration that was before the parties with that panel. [00:06:30] Speaker 01: They protested it, but they ultimately went forward with it. [00:06:33] Speaker 01: They simply believed that the arbitrator should know that they hadn't been mutually selected and have the opportunity to step down so that they could negotiate a new process [00:06:41] Speaker 01: with the employer in order to replace those arbitrators. [00:06:46] Speaker 01: A violation of the statute would either be to repudiate, I'm sorry, the CBA would be either to repudiate the CBA by believing that they shouldn't go forward at all, rather than saying that they should be a part of the process. [00:06:59] Speaker 00: Okay, but there's case law in the FLRA for treating the memorandum of agreement as binding on a new union as well. [00:07:09] Speaker 01: If it's a mandatory subject of bargaining, I think the MOA would be binding on the union. [00:07:15] Speaker 00: Right, and access to the grievance machinery is a mandatory subject. [00:07:19] Speaker 01: That's right, but the union sees this as a little different. [00:07:23] Speaker 01: Who serves on the arbitration panel is not the same issue as access to the grievance machinery. [00:07:28] Speaker 01: The union was not contesting the fact that there should be a grievance process. [00:07:32] Speaker 01: and that there should be a panel of arbitrators, the matter of contest for the union is who serves on the panel of arbitrators. [00:07:39] Speaker 01: And the union believed the very language of the CBA itself makes clear that the parties to that agreement should be able to select arbitrators. [00:07:47] Speaker 01: So the union simply believed that now that there's a new union on board, that this aspect should be redone. [00:07:53] Speaker 01: We should be able to mutually select [00:07:55] Speaker 00: the arbitrators that are going to adjust the grievances that the union, for the people that... I understand you had a good faith argument that the MOA didn't require you to use the old arbitrators. [00:08:09] Speaker 00: You did use an old arbitrator for one matter, right? [00:08:13] Speaker 00: But on the others, refused to do so, there was some delay, and that's what the FLRA lights upon, isn't it? [00:08:22] Speaker 00: By delaying this process and so on, [00:08:25] Speaker 00: You are depriving the employees of access to the grievance. [00:08:28] Speaker 01: Not quite, because the union actually went forward with the one arbitration that was an issue at the time about the other under protest. [00:08:34] Speaker 01: The union actually has gone forward. [00:08:36] Speaker 01: There have been delays in the arbitration process for other reasons, but the union has gone forward. [00:08:41] Speaker 01: They have continued to utilize this panel to date. [00:08:44] Speaker 01: including Mr. Fagenbaum and Mr. Foster, the union is moving forward. [00:08:48] Speaker 01: I think the FLRA focused on the conduct in asking that the arbitrators step down or voluntarily step down. [00:08:58] Speaker 00: The FLRA saw that as... That's true with regard to the B1, but not the B5. [00:09:05] Speaker 01: The B-5 is confusing to the union and quite frankly to myself. [00:09:08] Speaker 01: B-5 is refusing to negotiate in good faith or refusing to work with the employer. [00:09:16] Speaker 01: There's just no evidence in the record whatsoever. [00:09:18] Speaker 01: that the union has failed to do that. [00:09:20] Speaker 01: In fact, the union's argument is that we do want to negotiate in good faith. [00:09:24] Speaker 01: We do want to get together with the employer in order to select the panel of arbitrators. [00:09:30] Speaker 00: I think that B5... But you do want to is one thing, but their claim is that you violated B5 by blocking temporarily, perhaps, or blocking access to the grievance machine. [00:09:41] Speaker 01: And I think that's incorrect, because the union has never, and there are no facts... But did you go to the employer to bargain about replacements? [00:09:49] Speaker 01: The union did not have the opportunity to bargain about replacements because the FLRA had ordered that the union's conduct was a ULP. [00:09:58] Speaker 00: Before that, when you first came in as becoming the incumbent union, did you ever go to the employer and say, let's talk about some new arbitrators? [00:10:08] Speaker 01: Yes, sir. [00:10:09] Speaker 01: The union did that. [00:10:10] Speaker 01: The employer refused. [00:10:11] Speaker 01: The employer wanted to use the panel of arbitrators. [00:10:13] Speaker 00: And did you then go to the FLRA and complain? [00:10:16] Speaker 01: No, the union did not complain to the FLRA. [00:10:18] Speaker 00: Instead, you took self-help. [00:10:22] Speaker 01: I think the union simply let the arbitrators know that they didn't feel that their service was mutual. [00:10:27] Speaker 01: I think it was an expression of opinion. [00:10:29] Speaker 01: I think it was an argument that the union had the right to make under the statute itself, under 716E. [00:10:34] Speaker 00: I need to ask you a question about that, because I find it very confusing, 716E. [00:10:43] Speaker ?: OK. [00:10:44] Speaker 00: To show that your statements are protected under that section, do you have to show both that the statements were not personal views and that they were not coercive? [00:10:59] Speaker 01: Yes. [00:11:00] Speaker 01: I think personal opinion or expressions or argument for the union and that they were not coercive, yes. [00:11:09] Speaker 01: I believe that is the case. [00:11:10] Speaker 00: How can they be personal? [00:11:12] Speaker 00: as opposed to on behalf of the union. [00:11:15] Speaker 01: Well, if you look at the case law, personal seems to arise in the context of it when it's an individual person expressing their own personal opinions. [00:11:23] Speaker 01: This, in this case, was the opinion of the union. [00:11:26] Speaker 01: So I would say that this falls more under the argument or opinion part of the union. [00:11:30] Speaker 01: The union was simply expressing their opinion that a panel of arbitrators that were not mutually selective... Okay, so it's the union's opinion, but a union representative. [00:11:39] Speaker 00: not a personal statement. [00:11:41] Speaker 01: The union as a body and not a personal statement. [00:11:44] Speaker 01: The president of the union was acting on behalf of the union as a body and expressing this opinion and making this argument and it's colloquy back and forth with the arbitrators. [00:11:53] Speaker 01: And then, yes, I think the union has to show that the speech was not threatening or coercive. [00:11:58] Speaker 01: And I think that there isn't anything about the colloquy between the arbitrators that even could reasonably be viewed as threatening in course. [00:12:05] Speaker 01: I think when you look at the case laws that the courts have concerning what... [00:12:12] Speaker 00: implicit threat to and the accusation of unethical, the important threat to complain about that. [00:12:19] Speaker 01: He did. [00:12:20] Speaker 01: I think there's case law that even says that an implicit threat to sue or a statement that a suit could go forward is not necessarily— I understand that, but the ALJ said it's—actually the words were coercive conduct under the circumstances, right? [00:12:37] Speaker 00: because of this campaign to get rid of the old panel. [00:12:42] Speaker 00: And I don't know how we can not defer to that. [00:12:45] Speaker 01: Well, I don't know how telling someone that we don't think that you should be participating because you are not mutually selected. [00:12:52] Speaker 00: And you're acting in violation of the Code of Ethics. [00:12:55] Speaker 01: And pointing out that the Code of Ethics requires mutuality. [00:13:00] Speaker 00: Well, I think the court, the ALJ and the board authority both found that [00:13:05] Speaker 00: that this was not a violation of the ethical code after all. [00:13:10] Speaker 01: Well, I think the authority also made an important point that, I mean, what would have happened in looking at the entire context of the colloquy, even if they had violated this professional code of ethics as issued by the FMCS, what would have been the result? [00:13:23] Speaker 01: Simply removal from the list, and that list wasn't even at issue. [00:13:26] Speaker 01: in this case. [00:13:27] Speaker 01: I mean, it's hard to see pointing out that here's the guidelines by which we must all operate and here is how you're stepping outside of those guidelines can be considered threatening or coercive behavior. [00:13:38] Speaker 04: Well, the union had an opportunity to take the complaint to the agency and it decided not to, it decided to proceed under protest. [00:13:46] Speaker 01: Well, I think the union went to the agency and was unsuccessful in getting them to renegotiate a new list of arbitrators and so they didn't feel that there was any reason [00:13:55] Speaker 01: that would preclude them from letting the arbitrators know. [00:13:58] Speaker 04: Did that happen after the union went to the employer and tried to get agreement? [00:14:04] Speaker 04: The employer said no, it wanted to use the existing panel. [00:14:10] Speaker 01: Yes, yes. [00:14:11] Speaker 04: And then it went to the agency and what did it do? [00:14:13] Speaker 01: The union went to the agency first and said we wanted to use a different panel. [00:14:17] Speaker 01: The agency said no. [00:14:18] Speaker 01: Then they went to the arbitrators and notified the arbitrators that they had not been voluntarily selected, that we're the new union on board, that we'd like to have the opportunity to meet with you because we think that we should be a part of the process of the arbitration selection. [00:14:34] Speaker 04: So having, let me just be clear, Yale J rejected the notion that you had exhausted all of the remedies you had. [00:14:42] Speaker 01: And otherwise, you were just parroting what the requirement was. [00:14:47] Speaker 01: I'm sorry, Your Honor. [00:14:48] Speaker 01: The FLRA didn't really speak to the notion of exhausting remedies. [00:14:51] Speaker 04: No, I know. [00:14:52] Speaker 04: But I mean, that would be the implication of the ALJ's decision, wouldn't it? [00:14:59] Speaker 01: Well, the FLRA simply said that the union had committed an unfair labor practice by engaging in this conduct, sensibly because the conduct was, in fact, coercive and threatening. [00:15:09] Speaker 04: Well, we can ask counsel. [00:15:10] Speaker 04: What was the alternative facing the union? [00:15:14] Speaker 01: I mean, yes. [00:15:14] Speaker 01: I mean, ultimately, the union did not commit an unfair labor practice. [00:15:18] Speaker 01: That's what your position is. [00:15:20] Speaker 01: We understand. [00:15:21] Speaker 01: Why don't you hear from me? [00:15:22] Speaker 01: OK. [00:15:22] Speaker 01: Thank you, Your Honor. [00:15:31] Speaker 02: Good morning, Your Honors. [00:15:32] Speaker 02: My name is Rebecca Althorn. [00:15:34] Speaker 02: And together with Noah Peters, I represent the Federal Labor Relations Authority in this matter. [00:15:40] Speaker 02: This case is a simple one. [00:15:43] Speaker 02: We would state that and respectively submit that the union did engage in an unfair labor practice by refusing to give and to abide by mandatory provision of the collective bargaining agreement. [00:16:02] Speaker 02: And that would include the memorandum of agreement that the predecessor union entered into [00:16:08] Speaker 02: with the agency that is all part of the mandatory portion of the collective bargaining agreement. [00:16:17] Speaker 04: So what is a new lease, elected and certified union? [00:16:22] Speaker 02: I beg your pardon? [00:16:23] Speaker 04: What options does it have if it doesn't like the old panel? [00:16:27] Speaker 02: The option that it has is to wait until the end of the term of the agreement and renegotiate that. [00:16:33] Speaker 04: What is that, three years hence? [00:16:34] Speaker 02: Four years, Your Honor. [00:16:36] Speaker 02: Four years hence. [00:16:37] Speaker 02: Oh, yes. [00:16:37] Speaker 04: Can't do anything for four years? [00:16:39] Speaker 02: No, Your Honor. [00:16:40] Speaker 02: And that is based actually upon an interpretation of the statute that has been held by the FLRA since the early 1980s. [00:16:48] Speaker 02: And what has the agency said? [00:16:50] Speaker 02: The agency has said, Your Honor, that part of the purpose of the statute is to ensure that there is stability in labor relations, which means that there have to be periods of repose. [00:17:03] Speaker 02: When a collective bargaining agreement is entered into by two parties, any successors to that agreement are bound to the agreement to the same extent as the predecessor was. [00:17:15] Speaker 02: No exceptions. [00:17:17] Speaker 02: No exceptions. [00:17:18] Speaker 02: I mean, there are minor caveats, but not applicable in this. [00:17:22] Speaker 04: So there is no option available to the union. [00:17:25] Speaker 02: There is no option available to the union. [00:17:27] Speaker 04: So even though there is a requirement of mutual selection, that neutrality has already been fulfilled. [00:17:34] Speaker 04: That is correct, Your Honor. [00:17:36] Speaker 04: All right. [00:17:38] Speaker 04: Judge, do you want to? [00:17:39] Speaker 03: No, go ahead. [00:17:39] Speaker 03: I didn't mean to interrupt you. [00:17:41] Speaker 03: Well, I have a related question. [00:17:42] Speaker 03: So on this issue, am I right that [00:17:46] Speaker 03: that the union objected to Conway's award, right, in the grievance case? [00:17:56] Speaker 03: That went to the FLRA, correct? [00:17:58] Speaker 02: It did, Your Honor. [00:17:59] Speaker 03: And in that, didn't the FLRA determine that the union's bound by the arbitration procedures? [00:18:06] Speaker 02: Yes, Your Honor. [00:18:07] Speaker 03: Well, why don't you argue that that resolves the issue here? [00:18:11] Speaker 03: Isn't that binding now? [00:18:13] Speaker 02: that is binding, yes, it is, Your Honor. [00:18:15] Speaker 03: Well, you didn't argue that in your brief. [00:18:16] Speaker 03: Am I missing something? [00:18:18] Speaker 03: I mean, isn't that, like law, the case? [00:18:21] Speaker 03: Because I know the FRA finds its decisions, previous decisions, binding. [00:18:26] Speaker 03: Why isn't this just resolve this issue completely? [00:18:31] Speaker 02: Your Honor, it certainly provides substantial evidence for resolving this matter. [00:18:35] Speaker 02: Wait, wait, wait. [00:18:37] Speaker 03: Not substantial evidence. [00:18:38] Speaker 03: I'm asking why you didn't argue this. [00:18:40] Speaker 02: That's basically what I'm asking. [00:18:41] Speaker 02: Your Honor, because the other matter was an arbitration, and it primarily focused on the issue of the arbitration before. [00:18:50] Speaker 03: I understand that, but the FLRA decided this question, didn't it? [00:18:54] Speaker 03: Didn't the FLRA decide that the union was bound by the [00:19:01] Speaker 03: arbitration proceedings in the existing collective bargaining agreement? [00:19:05] Speaker 02: Yes, Your Honor. [00:19:06] Speaker 03: My only question is, why isn't that binding here? [00:19:15] Speaker 02: In that case, it was review of an arbitration award. [00:19:18] Speaker 02: This is review of an unfair labor practice. [00:19:19] Speaker 03: What difference does it make whether it's an arbitration award? [00:19:21] Speaker 03: The FLRA ruled as a matter of law that the union was bound by the existing collective bargaining agreement and the mediation procedures negotiated under it, right? [00:19:31] Speaker 02: Yes, Your Honor. [00:19:34] Speaker 03: Therefore? [00:19:36] Speaker 02: Why isn't the... The authority came to the same conclusion in this case. [00:19:42] Speaker 03: Yeah, that's my point. [00:19:44] Speaker 03: Why is it alive anymore? [00:19:47] Speaker 03: Do you understand what I'm asking? [00:19:51] Speaker 02: I do, Your Honor, but I think that part of what this case was also attempting to address is the issue of the [00:20:00] Speaker 02: unfair labor practices that the union had engaged in harassing and coercing the arbitrators to resign. [00:20:08] Speaker 02: That's a different question. [00:20:10] Speaker 03: That's a different question. [00:20:12] Speaker 03: Well, you didn't make the argument. [00:20:13] Speaker 04: The case is not over, but the legal question has been resolved. [00:20:18] Speaker 04: And you agree with that, don't you? [00:20:20] Speaker 04: Yes. [00:20:20] Speaker 04: And so the only question is, is there any further remedy [00:20:25] Speaker 04: because of the ALJ's findings in terms of the nature of the remarks. [00:20:30] Speaker 02: That is correct, Your Honor. [00:20:33] Speaker 02: And the further remedy in this case was appropriate because it was a remedy, non-traditional though it was, just simply asking the union to invite these arbitrators to return to the panel. [00:20:47] Speaker ?: I don't have any other questions. [00:20:49] Speaker 04: Anything further? [00:20:50] Speaker 02: No. [00:20:50] Speaker 04: No, I mean, no. [00:20:52] Speaker 04: Excuse me? [00:20:52] Speaker 04: Anything further? [00:20:53] Speaker 02: No, thank you, Your Honor. [00:20:55] Speaker 04: All right, thank you. [00:20:57] Speaker 04: All right, Council for Petitioners. [00:21:04] Speaker 03: Your Honor, could you just address this one question that I just asked? [00:21:07] Speaker 03: Why isn't this question of whether the union is bound by the CBA and its grievance procedures, what kind of law in the case? [00:21:15] Speaker 03: Why is this even any longer a live issue? [00:21:19] Speaker 01: Because the FLRA, Your Honor, actually didn't address the issue that's present before the court today. [00:21:24] Speaker 03: Tell me why. [00:21:26] Speaker 01: Yes, the FLRA certainly said... Didn't they say it was bound? [00:21:30] Speaker 01: I'm sorry, Your Honor. [00:21:31] Speaker 03: Didn't they say the union was bound by the CBA? [00:21:34] Speaker 01: Yes, and the union doesn't disagree, nor does the union disagree when they're bound by the grievance procedure. [00:21:38] Speaker 01: The question is, is the selection of arbitrators. [00:21:41] Speaker 01: The FLRA can't make an arbitrator serve as an indigent... Wasn't that decided in the grievance case? [00:21:48] Speaker 03: It was decided that... Because that was convoy, right? [00:21:50] Speaker 03: Yes. [00:21:51] Speaker 03: It was the same guy. [00:21:51] Speaker 01: Yes, but it doesn't answer the question of when an arbitrator resigns or steps down. [00:21:56] Speaker 01: What happens? [00:21:57] Speaker 01: And that's the issue. [00:21:59] Speaker 01: The union simply went to the arbitrators and said, hey, we didn't mutually select you. [00:22:03] Speaker 01: We don't want to use you. [00:22:04] Speaker 01: They voluntarily stood down. [00:22:07] Speaker 01: Then what happens? [00:22:08] Speaker 01: The parties are supposed to negotiate to replace new arbitrators. [00:22:12] Speaker 01: So the FLRA case concerning arbitrators, Conway's jurisdiction in that particular grievance, resolves an issue that wasn't really in dispute, that they had to follow the grievance process [00:22:22] Speaker 01: and that they had to work with the arbitrators that had been selected. [00:22:26] Speaker 01: The question presented here today was, was the union's conduct in asking arbitrators to voluntarily resign because of their opinion, was that a ULP? [00:22:35] Speaker 01: And the FLRA case does not speak to that particular issue and whether or not this was an unfair labor practice. [00:22:43] Speaker 01: And I wanted to talk, does that answer your question Judge Tatel? [00:22:47] Speaker 03: No. [00:22:50] Speaker 01: You go ahead. [00:22:51] Speaker 01: I mean, I could give you a little more. [00:22:53] Speaker 01: No, it's OK. [00:22:54] Speaker 03: Why don't you go ahead. [00:22:55] Speaker 01: I just wanted to just talk quickly about the remedy and the nontraditional aspect. [00:23:00] Speaker 04: Inviting them back? [00:23:01] Speaker 01: Yes. [00:23:02] Speaker 01: Not specifically arbitrator Fagenbaum, because that's just tied to the fact that this is an EOP. [00:23:12] Speaker 01: He voluntarily resigned, and he did it pursuant to a settlement agreement, a contractual agreement. [00:23:17] Speaker 04: So he stepped down because he got paid. [00:23:20] Speaker 01: Yes, absolutely. [00:23:20] Speaker 04: All right, so he's out of the picture too. [00:23:22] Speaker 01: Well, he's in the picture to the extent that the FLRA has ordered that he be brought back. [00:23:28] Speaker 01: He be invited back. [00:23:30] Speaker 01: He be invited back. [00:23:31] Speaker 01: And all of the conduct that went back and forth with Arbitrator Conway happened after the charge period or outside of the charge period. [00:23:38] Speaker 01: So it was inappropriate of the FLRA to order that conduct that is outside of the charge period be remedied based on this charge, but also because there was this contractual agreement that Arbitrator Conway stepped down. [00:23:52] Speaker 01: And then I also wanted to add the second issue, which was about having the FLRA consider the fact that Arbitrator Conway has moved out of the area and is charging both parties, the government. [00:24:03] Speaker 00: Now, you could have raised that at the time in fashion, but didn't. [00:24:06] Speaker 01: It wasn't known at the time. [00:24:07] Speaker 01: So it looks like the union raising the issue, finding out the information and raising the issue, crossed in the mail with the FLRA's decision. [00:24:15] Speaker 01: They don't communicate electronically. [00:24:17] Speaker 01: They send their decisions by mail. [00:24:19] Speaker 01: So when the union realized and obtained proof, which was a bill from another case that Arbitrator Conway was actually paying people, I mean, charging people for his transportation costs, the union then [00:24:32] Speaker 01: prepared to go to the FLRA. [00:24:34] Speaker 01: I mean, I'm sure it took a few days to go to the FLRA to advise them of this fact. [00:24:38] Speaker 01: And it should be something that is considered by the FLRA because... And they just refused to consider it? [00:24:43] Speaker 01: They didn't want to consider it. [00:24:45] Speaker 04: That's not the issue. [00:24:46] Speaker 04: Did they consider it? [00:24:47] Speaker 01: No, they did not consider it. [00:24:49] Speaker 01: No, ma'am. [00:24:49] Speaker 04: So what's the status of that? [00:24:51] Speaker 01: So under the statute, this court has the authority to send this case back to the FLRA for consideration of that issue. [00:24:58] Speaker 04: And where will we find that that issue was raised? [00:25:01] Speaker 04: to the agency in regard to Conway's moving out of the area and therefore the parties, if they use him, will have to pay these long distance travel costs. [00:25:18] Speaker 01: Where was that raised with the agency? [00:25:20] Speaker 01: Yes. [00:25:21] Speaker 01: Oh, it's not in the record in the sense that... So it's not before us. [00:25:25] Speaker 01: Well, under the statute, the court has the authority to hear new evidence that's not in the record, that's not a part of the record or that wasn't before the court. [00:25:33] Speaker 00: You didn't really want them to reopen the record? [00:25:36] Speaker 01: I think it's an important consideration because Arbitrator Conway has created facts that none of the parties had anticipated. [00:25:42] Speaker 01: I mean, I think [00:25:43] Speaker 01: whether the government itself is going to use taxpayers' dollars to pay for an arbitrator to travel. [00:25:48] Speaker 04: You make a nice argument. [00:25:48] Speaker 04: The only point is is that what is before us, all right? [00:25:52] Speaker 04: This is an argument you raised at oral arguments? [00:25:56] Speaker 04: No, it's in a brief. [00:25:57] Speaker 01: Oh, yes, ma'am. [00:25:58] Speaker 01: It's in the brief. [00:25:59] Speaker 01: I apologize. [00:25:59] Speaker 04: I know, but where was it before the agency? [00:26:02] Speaker 01: Well, it wasn't before the agency because the agency made the FLRA made it. [00:26:06] Speaker 04: Now, I understand that. [00:26:07] Speaker 01: OK. [00:26:08] Speaker 04: And so I don't know what we would be asking the agency to look at. [00:26:13] Speaker 01: Well, under the statute, the court can send this back. [00:26:15] Speaker 04: I understand that, counsel, but normally we don't just reach out and say, oh, why don't you consider this some day? [00:26:23] Speaker 04: Normally we send it back because something has been raised and the agency hasn't adequately responded. [00:26:35] Speaker 01: The agency? [00:26:36] Speaker 04: And you cannot point us to anything like that. [00:26:38] Speaker 04: Is that correct? [00:26:40] Speaker 01: Well, the issue was raised with the agency and the union filed the motion for reconsideration. [00:26:49] Speaker 01: The agency was aware of the motion for reconsideration. [00:26:53] Speaker 04: So there is a motion for reconsideration that raises Conway's move. [00:26:56] Speaker 01: Yes. [00:26:57] Speaker 04: All right. [00:26:58] Speaker 01: I apologize. [00:26:58] Speaker 01: So that's what you should have told me. [00:26:59] Speaker 01: I apologize, Your Honor. [00:27:00] Speaker 01: All right. [00:27:00] Speaker 04: Where will I find that? [00:27:01] Speaker 01: You won't find it in the record because the FLRA did not. [00:27:04] Speaker 04: Where will I find it? [00:27:06] Speaker 04: On the docket of the FLRA? [00:27:08] Speaker 01: Yes, it is on the docket. [00:27:10] Speaker 04: And do you have a date? [00:27:13] Speaker 01: Let me see if I can grab the date for you for the motion. [00:27:18] Speaker 04: And why don't council mutually file a copy of that motion and any response that the agency filed? [00:27:32] Speaker 01: Okay, yes. [00:27:33] Speaker 04: Supplemental filing before the court? [00:27:35] Speaker 01: Yes, it was filed on March 11th. [00:27:37] Speaker 04: March 11th, and did the agency respond? [00:27:40] Speaker 01: The agency did file a response to it, opposing it. [00:27:43] Speaker 04: All right, and did you file a reply? [00:27:46] Speaker 01: I don't believe that there was a reply, I believe that. [00:27:49] Speaker 04: All right, so let us have the two documents that are before the agency, both the motion and the opposition. [00:27:56] Speaker 04: I think they're in the record. [00:27:57] Speaker 02: They are in the record or the opposition, yes. [00:28:01] Speaker 04: I'm not sure that the opposition... Why don't counsel get together and make sure that the court has both documents? [00:28:09] Speaker 02: Absolutely. [00:28:09] Speaker 02: We will, Your Honor. [00:28:10] Speaker 02: One thing that I want to point out, Your Honor, is that the record was closed before the authority when... And we are asking that... Yes, Your Honor. [00:28:20] Speaker 04: ...counsel make these documents available to us so we know what we're talking about. [00:28:25] Speaker 04: Yes, Your Honor. [00:28:26] Speaker 04: Yes, Your Honor. [00:28:26] Speaker 04: This ought to be very simple counsel. [00:28:29] Speaker 01: Yes, ma'am. [00:28:29] Speaker 01: We'll file it with the court. [00:28:30] Speaker 01: Absolutely. [00:28:31] Speaker 04: Shana, take notes when they're going to file it. [00:28:36] Speaker 04: Thank you, Your Honor. [00:28:37] Speaker 04: Thank you very much. [00:28:37] Speaker 04: We'll take the case under advisement.