[00:00:00] Speaker 00:
Case number 20-1183, American Federation of Government Employees Local 3690 Petitioner versus Federal Labor Relations Authority.

[00:00:10] Speaker 00:
Mr. Davis for the petitioner, Ms.

[00:00:12] Speaker 00:
Blackadar for the respondent.

[00:00:14] Speaker 05:
Mr. Davis, good morning.

[00:00:17] Speaker 03:
Good morning, Your Honor.

[00:00:19] Speaker 03:
May it please the court.

[00:00:21] Speaker 03:
My name is Joshua Davis, and I'm here on behalf of the American Federation of Government Employees, Local 3690, Federal Correctional Institution, Miami, Florida.

[00:00:33] Speaker 03:
Today, I come here to you, your honors, to discuss the Federal Labor Relation Authority, who from here on out I'll just refer to as the authority.

[00:00:45] Speaker 03:
The authority's patent

[00:00:49] Speaker 03:
refusal to follow the Steelworkers Trilogy as laid out by the United States Supreme Court.

[00:00:57] Speaker 03:
Further, I come to let this court have its say on the practice known as augmentation.

[00:01:11] Speaker 03:
This is a practice that has affected the institution and the workers that I represent greatly.

[00:01:19] Speaker 03:
And it's a practice that was explained in the briefs, but for brevity's sake, where the Bureau of Prisons takes teachers and turns them into maximum security prison guards and the like.

[00:01:35] Speaker 03:
I think the first thing and the most important thing to address this morning is that this court does have jurisdiction to hear this argument.

[00:01:47] Speaker 03:
The issue of the memorandum of understanding was brought before the arbitrator, was addressed before the authority, and the authority's slight mention in what seems to be acceptance of the repudiation of the memorandum of understanding

[00:02:16] Speaker 03:
is clearly within the bounds of what a ULP needs to be in order to come before this court.

[00:02:29] Speaker 02:
But you did not counsel, you did not litigate this and allege an unfair labor practice before the arbitrator, correct?

[00:02:44] Speaker 03:
We did not use the words unfair labor practice.

[00:02:47] Speaker 03:
We used breach of the memorandum of understanding.

[00:02:51] Speaker 03:
Now, under the authority precedent, there can be two sorts of repudiation, an explicit or an implicit.

[00:03:00] Speaker 03:
In this case, it's the union's position that there was an implicit repudiation.

[00:03:05] Speaker 03:
And the authority's test for that is the

[00:03:10] Speaker 03:
nature of the violation and whether the violation goes to the heart of the party's negotiated agreement.

[00:03:18] Speaker 03:
In this case, this MOU, which is petitioners appendix, page 197, it was made after the union and the agency had collectively bargained their initial agreement.

[00:03:35] Speaker 03:
And on number two of that MOU, it clearly states, unless mutually agreed, all matters brought forward at FCI Miami will be negotiated in the order based upon the date the intent to negotiate was filed.

[00:03:51] Speaker 03:
Once an intent to negotiate has been filed, the agency and the union will mutually exchange proposals within 45 days.

[00:03:59] Speaker 03:
If an issue of negotiability is raised by the agency following the exchange of proposals, the agency will provide the union with written notice of the issues deemed as non-negotiable.

[00:04:11] Speaker 03:
This notice will include specific references, case law, master agreement as to why the specific issue has been deemed non-negotiable.

[00:04:22] Speaker 03:
The union at FCI Miami

[00:04:25] Speaker 03:
relying on this memorandum of understanding, which was entered into between the parties, attempted to raise the issue of augmentation with the agency.

[00:04:36] Speaker 03:
But the agency did not follow this contract at all.

[00:04:41] Speaker 03:
All they said was, we're not going to negotiate.

[00:04:45] Speaker 03:
They provided no case law.

[00:04:47] Speaker 03:
They provided no insights.

[00:04:50] Speaker 03:
They did not follow this.

[00:04:54] Speaker 03:
when it gets to the second branch of the authority's test for repudiation, Article 2 of this MOU goes to the heart of the entire agreement, because without knowing what matters are on the table in order to negotiate according to the rules for the rest of the MOU, there is no logical way for the rest of the agreement to exist.

[00:05:24] Speaker 03:
It's a well-recognized canon of statutory and contractual interpretation that we give meaning to as much of the document as we can.

[00:05:36] Speaker 04:
Mr. Davis, if I could interrupt for a moment, how much of what you just said was argued to the authority?

[00:05:49] Speaker 03:
In the exceptions, petitioners appendix 148

[00:05:58] Speaker 03:
The opposition to the exceptions.

[00:06:05] Speaker 03:
The very first thing that the union really argues is that, hey, this has been decided on separate and independent grounds other than what was accepted to by the agency.

[00:06:23] Speaker 03:
And therefore, this needs to be addressed.

[00:06:26] Speaker 03:
The union cites actually on 148 that.

[00:06:30] Speaker 03:
For the actual word repudiation.

[00:06:48] Speaker 03:
The union in its opposition, I found it.

[00:06:53] Speaker 03:
It's actually petitioners appendix 149.

[00:06:56] Speaker 03:
The last paragraph of the page, the union actually cites in comparison a FLR case where the authority found that the agency had in fact violated 71 16 a one in five of the statute after a unilaterally repudiated the party's local memorandum of understanding.

[00:07:20] Speaker 03:
This court's precedents and this court's holdings even as recently

[00:07:25] Speaker 03:
as the NLRB case that came out a couple of days ago show us that this was enough to put the authority on notice, that this was an appealable ground.

[00:07:39] Speaker 03:
And the repudiation of an MOU is by definition a statutory unfair labor practice.

[00:07:49] Speaker 03:
So I think it's the union's position that that was sufficiently raised to the authority.

[00:07:58] Speaker 03:
Thank you.

[00:08:01] Speaker 03:
Now, the other main argument for why this court has jurisdiction is because the authority clearly, clearly has decided to exceed its statutory

[00:08:19] Speaker 03:
permissions given to it by 7122.

[00:08:23] Speaker 03:
These require the authority to defer to arbitration awards on grounds similar to those in the private sector.

[00:08:38] Speaker 03:
The grounds similar in the private sector rely on the Steelworkers Trilogy, MISCO, Garvey,

[00:08:47] Speaker 03:
Um, and the Supreme Court has been very clear that if the arbitrator is even arguably construing the contract, this is the deference owed to his decision.

[00:09:03] Speaker 03:
And when you look at the authority's decision where they expressly say and then use this decision as precedent to continue to say that

[00:09:15] Speaker 03:
We don't owe the same amount of deference to an arbitrator because public sector is different.

[00:09:21] Speaker 03:
This is clearly in excess of their statutory authority.

[00:09:27] Speaker 03:
And by doing that, that would give this court jurisdiction to hear this.

[00:09:33] Speaker 03:
It would also make their decision arbitrary and capricious because when you look at this court's ruling in National Weather Service,

[00:09:41] Speaker 03:
this court was very clear to the authority as to what standard it must apply.

[00:09:49] Speaker 03:
And it was the standard found in steelworkers.

[00:09:55] Speaker 03:
So when you get past those two jurisdictional issues, and I know I'm running a little short on time at this point, and you really get to the merits, the authority then decides that a binding past practice can't create a condition of employment.

[00:10:12] Speaker 03:
which is a private sector labor law concept that has been around for 40 or 50 years, which all of a sudden led the authority to pursue a faulty analysis of why the arbitrator's decision was not within the essence of the contract.

[00:10:37] Speaker 03:
Those are the main points that I wanted to make, and I know I'm over time now,

[00:10:41] Speaker 03:
submit to Ms.

[00:10:44] Speaker 03:
Blackadar for.

[00:10:47] Speaker 05:
All right, Mr. Davis, we'll give you a couple of minutes.

[00:10:49] Speaker 05:
Ms.

[00:10:49] Speaker 05:
Blackadar.

[00:10:55] Speaker 01:
Thank you, Your Honors, and may it please the court, Sarah Blackadar for the respondents, the Federal Labor Relations Authority.

[00:11:01] Speaker 01:
The authority respectfully requests the court dismiss the union's petition for lack of jurisdiction or in the alternative to deny it entirely on the merits.

[00:11:10] Speaker 01:
The case lacks jurisdiction for three reasons.

[00:11:14] Speaker 01:
First, the Union has waived a number of the arguments that it seeks to bring before this Court and under Section 7123C, those arguments are not properly before this Court's jurisdiction.

[00:11:26] Speaker 01:
Second, under section 7123A, the statute clearly precludes judicial review of authority decisions that address arbitration awards that do not involve an unfair labor practice.

[00:11:39] Speaker 01:
This decision does not involve an unfair labor practice.

[00:11:43] Speaker 01:
And finally, the union's efforts to invoke a litem-esque like claim of jurisdiction or jurisdiction similar to that in the custom service case are inapplicable here.

[00:11:55] Speaker 01:
Even if the court reached the merits of this petition, though, there is simply no grounds to overturn the authorities decision that is the court has twice interpreted article 18 and come to the clear conclusion.

[00:12:08] Speaker 01:
that it states that shift reassignments and post changes are governed by Article 18.

[00:12:15] Speaker 01:
That is exactly what the union sought to negotiate over here.

[00:12:19] Speaker 01:
And the only way that the arbitrator could reach a decision that allowed or required the agency to bargain anew was to write an entirely new contractual term

[00:12:31] Speaker 01:
into the party's agreement, not interpret the agreement as it exists.

[00:12:35] Speaker 01:
This is at the heart of an essence exception, and that is the reason the authority set aside this decision.

[00:12:41] Speaker 01:
But looking first to some of the arguments that were brought up here again today, the Union has simply not raised these unfair labor practices, either at arbitration or before the authority.

[00:12:52] Speaker 01:
It never argued that the agency's refusal to negotiate it constituted an unfair labor practice under the statute.

[00:12:59] Speaker 01:
And it never even attempted to argue that the agency repudiated the memorandum of understanding before the arbitrator or the authority.

[00:13:08] Speaker 01:
This is quite clear because as the union just pointed to one page before in petitioner's appendix on page 148,

[00:13:19] Speaker 01:
It clearly, the unionist is clearly saying that the arbitrator found that the agency violated four provisions of the party's agreement and the local memorandum of understanding.

[00:13:30] Speaker 01:
Therefore, it is quite clear both their understanding, the agency's understanding, the arbitrator's understanding, and the authority's understanding of that award was it was based purely on contractual violations.

[00:13:44] Speaker 01:
This point, even if the,

[00:13:48] Speaker 01:
Union could have been more successful, although that is still doubtful, by bringing an unfair labor practice claim such as repudiation.

[00:13:56] Speaker 01:
It did not do so.

[00:13:57] Speaker 01:
Where there was no unfair labor practice to adjudicate before the arbitrator or the authority, this decision is barred by section 7123.

[00:14:08] Speaker 01:
But these arguments are also barred by section 7123C because they're new and raised to the court for the first time.

[00:14:17] Speaker 01:
and the one reference to one case.

[00:14:21] Speaker 01:
Yes, your honor.

[00:14:24] Speaker 04:
The court, this court in BOP one and BOP two addressed an issue very similar to the issue that the arbitrator and authority addressed in this case.

[00:14:39] Speaker 04:
And we had jurisdiction in BOP one and BOP two.

[00:14:43] Speaker 04:
So can you talk to us a bit about

[00:14:45] Speaker 04:
Why we don't have jurisdiction here when we did have jurisdiction there.

[00:14:51] Speaker 01:
Yes, your honor.

[00:14:52] Speaker 01:
In those two cases we were talking about an unfair labor practice that is evident from the fact that the issue at stake in both cases was the application of the covered by doctrine, which is a doctrine that relates to unfair labor practice cases.

[00:15:06] Speaker 01:
Now, the authority did cite to the court's decision in both of those cases, because particularly in Bureau of Prisons 2, the court was explicit that this isn't just a nuance of unfair labor practice law.

[00:15:22] Speaker 01:
This article is clear on its face what it means and what it covers.

[00:15:27] Speaker 01:
And it needs to be given that effect.

[00:15:28] Speaker 01:
And it chastised the authority for failing to understand and do that

[00:15:32] Speaker 01:
in a number of arbitration awards that were reviewed between Bureau of Prisons 1 and Bureau of Prisons 2.

[00:15:39] Speaker 01:
That's the only reason it comes up in this case because the authority then goes on to explain that given this explicit and clear language in Article 18, the arbitrator's decision has to be based on his finding of a new contractual term, which the arbitrator created based on past practices

[00:15:59] Speaker 01:
and then awarded the remedies that he did in the arbitration award based on that new contractual term.

[00:16:08] Speaker 01:
This is, as the court has expressed in private sector labor law cases, a clear instance of the arbitrator dispensing his own brand of industrial justice, departing entirely from the terms of the party's contract and writing his own.

[00:16:24] Speaker 01:
And for that reason, it had to be set aside for failing to draw its essence from the party's agreement.

[00:16:30] Speaker 01:
But returning again to some of the other issues that the party has raised here, for example, even this argument that the authority can't deviate in any way whatsoever from steelworkers is new.

[00:16:44] Speaker 01:
And even though this was an issue that wasn't in play before the authority's decision, the court has repeatedly held that parties need to file motions for reconsideration with the authority, even to address Sue Espante arguments

[00:16:58] Speaker 01:
before they can bring their positions on those arguments to this court.

[00:17:02] Speaker 01:
That didn't happen in this case.

[00:17:04] Speaker 01:
And so again, under 7123A, essentially the arguments that the union is now relying on to set aside the award are outside this court's jurisdiction.

[00:17:16] Speaker 01:
But going more specifically to the heart of the issue here, where a arbitration award and an authority decision so clearly rests upon contractual findings

[00:17:27] Speaker 01:
This case easily fits into overseas education, the court's earliest precedent on this issue.

[00:17:34] Speaker 01:
Where the conduct could have been but was not characterized as an unfair labor practice by the parties during the arbitration, there is no jurisdiction in this court.

[00:17:46] Speaker 01:
Moreover, the court has been clear that a mere passing reference or the party's own efforts to raise ULPs after the arbitration are not sufficient.

[00:17:58] Speaker 01:
What is essential and important is what is in the arbitration award and what is in the authority's decision.

[00:18:04] Speaker 01:
And so for that reason, the court does not have jurisdiction in this case, even if there were some glancing references to unfair labor practices in the exceptions briefing.

[00:18:16] Speaker 01:
They are not in the arbitration award.

[00:18:18] Speaker 01:
They are not in the authority's decision.

[00:18:20] Speaker 01:
And thus, there is no jurisdiction in this case.

[00:18:24] Speaker 05:
Would you distinguish this National Weather Service employees from 2020?

[00:18:30] Speaker 01:
Yes, Your Honor.

[00:18:31] Speaker 01:
In National Weather Service, the union characterized the exact same conduct, both explicitly as an unfair labor practice when it brought its grievance to arbitration and as a contractual violation.

[00:18:43] Speaker 01:
So although what they were talking about was the exact same

[00:18:47] Speaker 01:
alleged wrongdoing by the agency, they characterized it explicitly as both types of violations.

[00:18:54] Speaker 01:
When the arbitrator found that there was a contractual violation, but no unfair labor practice, the union filed exceptions with that determination.

[00:19:03] Speaker 01:
And the authority then decided whether or not the arbitrator was correct on the unfair labor practice issue, resulting in an authority decision that addressed both contractual violations and unfair labor practices.

[00:19:16] Speaker 01:
The union brought the case to this court and the court said that as long as there is a unfair labor practice that is in the decision, the entire decision is on appeal.

[00:19:25] Speaker 01:
Here, there is no unfair labor practice in the decision, so none of the decision can be on appeal.

[00:19:32] Speaker 05:
All right, thank you.

[00:19:38] Speaker 01:
Your honor, as I've noted here, the authority's decision

[00:19:42] Speaker 01:
is clearly beyond the jurisdiction of this court as it addresses only contractual claims brought through arbitration.

[00:19:49] Speaker 01:
Further, the arguments that the agency or the union brings to the court today are new in their brief for the first time and thus also barred by statute from this court's jurisdiction.

[00:20:00] Speaker 01:
Finally, even if the court were to reach the merits in this case, there is simply no grounds to overturn the authority's decision as it has correctly implemented the essence

[00:20:11] Speaker 01:
exception that exists in the private sector.

[00:20:14] Speaker 01:
And it clearly did not depart from or say that it would no longer use steel workers as a guide.

[00:20:20] Speaker 01:
For these reasons, there's no grounds for jurisdiction under litem or custom service where the statutes being interpreted applied to working conditions and they were applied reasonably as the authority has done throughout its history and not set aside the precedent that the union says they do.

[00:20:39] Speaker 01:
For these reasons, we ask first that the court should simply dismiss this petition for lack of jurisdiction and barring that to deny it entirely on the merits.

[00:20:49] Speaker 05:
All right.

[00:20:49] Speaker 05:
Thank you.

[00:20:50] Speaker 05:
Mr. Davis, why don't you take two minutes?

[00:20:54] Speaker 03:
Thank you, Your Honor.

[00:20:55] Speaker 03:
A few things I'd like to address.

[00:20:58] Speaker 03:
First, the arbitrator's award was based on multiple separate and independent grounds.

[00:21:08] Speaker 03:
While the authority used statutory unfair labor practice law to support its decision, Justice Kavanaugh, or then Judge, now Justice Kavanaugh, in under sea warfare, pointed to that as an indicia of an unfair labor practice being involved.

[00:21:31] Speaker 03:
Moreover, when you look at the separate and independent grounds, this case

[00:21:37] Speaker 03:
can be distinguished from BOP 1 and BOP 2 on the facts that Article 27, the health and safety of workers and the memorandum of understanding, which was entered into after the collective bargaining agreement, are both separate, distinct grounds.

[00:22:01] Speaker 03:
And by the authority not, by the authority

[00:22:06] Speaker 03:
erroneously finding that the arbitrator had relied on past practice and therefore the MOU analysis wasn't needed.

[00:22:15] Speaker 03:
They endorsed the repudiation of the MOU.

[00:22:20] Speaker 03:
That is sufficient to give this court jurisdiction.

[00:22:26] Speaker 03:
And once this court has jurisdiction under National Weather Service, it's clear the authority's decision was arbitrary and malicious.

[00:22:36] Speaker 03:
In the petitioners' reply brief, we pointed that the FLRA has since, in multiple footnotes, cited to this case addressing the deference owed to arbitrators in the public sector.

[00:22:50] Speaker 03:
They have made it a point that as far as steelworkers goes, it's not the same for the public sector as it is the private sector.

[00:23:02] Speaker 05:
All right, thank you.

[00:23:03] Speaker 05:
Madam Clerk, if you would call the next case.