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Case number 22-1220, Federal Education Association stateside region petitioner versus Federal Labor Relations Authority.

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Mr. Hearn for the petitioner, Mr. Tso for the respondent.

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Whenever you're ready.

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May I please the court?

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I'm Richard Hearn for the Federal Education Association.

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We offer three separate arguments.

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each of which provide an independent basis for setting aside the authorities' decisions in this case and reinstating arbitrator organs of war.

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First, the courts and the FLRA have consistently held that the determination of whether parties have entered into a collective bargaining agreement

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It's a question of- Before we get to the merits, can we talk about jurisdiction here first?

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Sure.

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So it's mentioned only very briefly in your opening brief and in not much more detail in the reply brief, but we can only review an order of the FLRA from an arbitration award if it involves an unfair labor practice.

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So how does the FLRA's order here involve an unfair labor practice?

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Well, in the National Weather Service Employees Organization case, this court said that a decision in an arbitration case from the authority is reviewable if it disposes of a party's unfair labor practice claim.

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Case before the arbitrator was clearly a case about an unfair labor practice.

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It was unfair labor practices were specifically alleged in both grievances.

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They were specifically agreed to by both parties as the issues to be resolved by the arbitrator.

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And the arbitrator spent four pages of his decision finding.

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So but our case law is very clear that it doesn't matter whether the arbitrator's award involves an unfair labor practice.

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The question is whether the FLRA's order involves an unfair labor.

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It disposed of the unfair labor practice, which is the test under the National Weather Service.

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How does it dispose of an unfair labor practice?

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It overturned the arbitrator's finding that there was an unfair labor practice and the relief he ordered pursuant to it.

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The authority's decision did not address or discuss at all any contractual claim.

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In fact, that's one of the reasons why we find fault with it.

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It acknowledged that the arbitrator had found that

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In its decision, it acknowledged, quote, the arbitrator found that the agency had committed unfair labor practices by refusing to continue negotiations, submitting an un-executed agreement for agency head review, and repudiating the party's 2005 master agreement.

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And then it went ahead to specifically, quote, set aside the arbitrator's finding that the statute didn't violate it.

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That was all that we see that the FLRA's decision was about, setting aside the arbitrator's finding that there was an unfair labor practice.

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But part of the reason it's had to decide is because of the jurisdictional issue of the arbitrator's mandate or scope of review.

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Yes, and as this court made clear in National Weather Service Employees Organization, once you meet the threshold of involving an unfair labor practice, then the entire authority's order and all of its reasoning becomes open for review.

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I mean, that is not perhaps the best reading of that case, NWSEO.

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I mean, disposes of in that context.

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I mean, if we were to consider

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an FLRA order to dispose of a ULP in such a broad way?

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I mean, wouldn't the exception swallow the rule?

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No, because this court has found many times that there have been appeals brought to this court many times by unions, where there was not a finding of an unfair labor practice.

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in the underlying arbitration award that the FLRA set aside and later tried to, the union tried to re-characterize the case as an unfair labor practice case.

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And the court, this court in numerous opinions looked to whether

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There was an unfair labor practice claim alleged in the grievance, looked at the issues cited by the arbitrator, and then looked to see whether the authority's decision disposed of any unfair labor practice claim finding, whether it was one way or another.

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I think of the very first case, Overseas Education Association, which in fact is a predecessor of this union.

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There was in the FLRA's decision in that case, there was actually no discussion of whether an unfair labor practice had been committed or not.

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The question was solely whether what had been alleged in the grievance was the same subject matter as was the subject of

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an earlier unfair labor practice charge that was filed but never adjudicated.

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The authority never got into, in the Overseas Education Association case, the question of whether an unfair labor practice had been committed or not.

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In fact, the arbitrator in that case did not even find an unfair labor practice because it was ultimately determined by this court that the

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arbitration case wasn't about the unfair labor practice that was the subject of the earlier case.

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Judge Starr found that any involvement of an unfair labor practice creates a threshold

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passes the threshold for judicial review in a case.

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In this case, the predominant claim in arbitration, the issues that were submitted by parties to the arbitrator and a substantial portion of his award was finding an unfair labor practice the breach of the duty to bargain in good faith.

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And the authorities specifically acknowledge in both its original decision and its reconsideration decision that that was the basis of the arbitrator's decision.

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And in its conclusion in the first case, it set aside the arbitrator's finding that the statute had been violated.

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It wasn't finding that the contract had been violated.

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The authority's decision was solely based on his finding that an unfair labor practice had not been committed.

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The first argument we were making on the merits, Judge Rao, is that

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the courts and the authority have consistently held that the arbitrator's finding that the parties did not re-enter into a new collective bargaining agreement was a factual finding.

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And that factual finding by the arbitrator should have been the end of the matter because the Supreme Court has held in

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major league baseball players versus Garvey, paper workers versus Misto, that an arbitrator's factual findings are simply not subject to review.

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And as this court made clear not long ago in the National Weather Service Employees Organization case, the FLRA is supposed to apply the same standards to review of arbitration awards in federal sector as is applied in the private sector.

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Our second argument is that the FEA and DOD took great pains to avoid any dispute over whether they had entered into a collective bargaining agreement.

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They agreed in both the ground rules and in the tentatively agreed to provision of the new contract that the old contract would not sunset, that the new contract would not be sent for agency head review nor implemented until the parties actually physically signed the new contract acknowledging that they had a meeting of the minds.

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The FLRA in the case of the Association of Civilian Technicians, Kentucky Long Rifle Chapter, wrote that, quote, the parties may adopt ground rules that specify the conditions in which they will recognize an agreement to be executed for the purposes of agency head review.

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And just last year, this court in the National Treasury Employees Union case noted that the FLRA's decision in the civilian technician's case stood for the very simple proposition that the parties may define for themselves when they consider a contract to be executed.

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That case law was totally ignored in the authority's decision in this case.

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Furthermore, the authority's case law that holds that a contract is automatically executed upon the issuance of an FSIP decision says only if no further action is necessary to finalize a complete agreement.

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That is an important qualifier that the FLRA ignored in this case.

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the court.

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Um.

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Let me see if my colleagues have any options.

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Um, Judge Henderson.

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No.

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Thank you.

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Thank you.

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We'll give you a few minutes on

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In response to Judge Rao's question, there is no jurisdiction here.

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The authority's decision order did not involve the ULP.

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And contrary to what the petitioners argue, at the core of this case is a very straightforward case about the panel resolving a contractual impasse.

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making a contractual decision, then they went to an arbitrator to try to overturn that contractual resolution.

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If you look at the arbitrator's decision on J-19, they went through the same analysis of the panel's decision, just to disagree with the panel.

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But that's contrary to what the statute intended.

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The statute intended the panel to have the final authority to decide all these contractual questions and resolve these contractual issues.

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and that deprived the authority of neither the authority nor the court to review the finality of that decision.

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And that's clear from the Brewer decision here in the D.C.

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Circuit.

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that all of this case, all of the discussion of unfair labor practices really turns on that contractual issue at the core of this case.

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And what they want the court to do is basically overturn the panel's decision that resolved a contractual dispute.

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Through different proposals, the panel decided those proposals.

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So is it your view that the authority's order doesn't involve a ULP?

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Yes, that's the position.

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And what about the fact that the arbitrator's decision does extensively talk about ULP?

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So the arbitrator's decision, if you read the arbitrator's decision, it's a very sequential decision.

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At the core of the decision, foundation decision, is an argument about what the contract means.

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And what the what the two proposals, which proposal is more favorable than the other.

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That's what the panel is built for.

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That's what the panel's authorized to do.

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You say panel, you're meaning the arbitral panel.

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That's the federal service in past panel.

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Yes.

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So Congress authorizes them.

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to resolve these contractual matters.

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This is why the arbitrator exceeded its jurisdiction, went out of its way to then overturn a fissile panel decision, and then built upon that, made some additional extraneous sort of conclusions about what a UOP may exist if

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the panel had sided with the union.

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But the panel did not side with the union.

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The panel sided with the agency.

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And from the outset, the union had tried to overturn that decision, but the Congress did not allow any judicial review.

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So in the authority's opinion, why does the authority's decision here or order here not necessarily implicate a ULP, which is one of the standards in our case law for jurisdiction?

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And before you answer that, address specifically in the second paragraph of the authority's order, the sentence, consequently, the arbitrator found that the agency committed unfair labor practices, ULPs, and then listed three that were committed.

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Yeah, so if you look at the arbitrator's decision, all of those ULPs are founded upon the fact that they had to resolve the contractual dispute that the panel already resolved.

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So it's built upon the fact that the arbitrator said there was conflict between these two provisions.

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Where does the authority then say, even though we consider them to be ULPs, they really aren't?

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Is that your argument?

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Well, so there are a couple of points here.

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One is that it is a direct review.

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So what the authority said is that this is a form of a direct review, not a form of a collateral attack.

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And the reason why it's a direct review is because the allegations of the UOP are founded on overturning the panel's resolution of these contractual issues.

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And a true UOP, as the authority points out, has to be a collateral attack.

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And what Brewer has said all the way from DC Circuit early on, a collateral attack using a UOP has to be against the validity of the decision, not the merits of the decision.

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So you can't be challenging what the panel says is the better intractable proposal.

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What you can do is challenge the validity of the decision.

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For example, if there's a constitutional infirmity,

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if there's some statutory violation.

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But at the court here, if you look at JA19, the arbitrator started off purely trying to resolve the contractual issue that the panel already resolved.

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Yeah, but the question is whether or not a ULP is implicated.

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The jurisdictional question.

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And it may be that in resolving the ULP, contractual matters are considered.

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So what?

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Sticking with the jurisdictional issue, the issue submitted, the union submitted to the arbitrator included whether the agency committed an unfair labor practice by submitting an unexecuted draft for agency review.

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They're claiming it's a ULP, and the arbitrator decided that.

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And whether the agency committed an unfair labor practice by repudiating the terms of the existing agreement.

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It doesn't matter that that implicates contractual matters.

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The question is whether or not a ULP or ULP issues were presented and decided by the arbitrator sufficient for the authority to take the question and decide it, which they did.

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So what if there's a contract, there are contract disputes that will inform the resolution of the ULP?

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The question is whether or not

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ULP issues were presented to the arbitrator and whether he purported to decide it.

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He did.

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He focused on that.

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That's what he focused on.

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That was what the union's issues were to the arbitrator, specifically.

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Just quoting the union.

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That's what they said the case was about.

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There were ULPs committed here.

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And the arbitrator decided, those two ULPs, and the FLRA then said, well, we're deciding it.

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And the arbitrator was wrong.

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There were no ULPs.

[00:16:36] Speaker 01:
So first of all, if you go back to Overseas Education Association, all the way to a more recent case, AFGI Local 3690, 3F4, 384, this court has looked at whether the underlying claim was really about a contract claim or about a ULP.

[00:16:54] Speaker 01:
So in those cases, it was a contract claim.

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They later pleaded a ULP and tried to plead a ULP.

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But at its core, if it's a contract claim, then it doesn't involve a ULP.

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Right here, if you look at what is a contract claim, it cannot involve a UOP, is what you said?

[00:17:13] Speaker 01:
No, if it's purely a contract claim, if it's purely about the interpretation of the collective bargaining agreement, if it's clearly about the resolution of contractual proposals, then that is separate and apart, a claim separate and apart from the UOP.

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Now, right here, if you look at how the arbitrator decided this case, how it was pled, the first step

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that they asked the arbitrator to do was to overturn the panel's resolution of two contractual proposals.

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And that is a contractual issue.

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Now, they can build upon that ULPs.

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They're saying the issue that they presented was whether the agency committed ULPs by submitting an un-executed draft to the agency.

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Yet, that's a straightforward ULP claim.

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They're saying that action that they took by submitting this for approval by the head was a ULP in their view.

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And the arbitrator decided that.

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And they also said, there's a question as to whether the agency committed an unfair labor practice by repudiating the terms of an existing agreement.

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That's a very usual ULP claim.

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And that's what they said.

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And the FLRA said, no.

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They're wrong.

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There was no ULP.

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The arbitrator is wrong in assuming that there was.

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It's a straightforward ULP question.

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The fact that it involves contractual matters doesn't make it any less a ULP claim.

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Well, the ULP claim is based on the fact that they thought the contract had a impermissible provision.

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So what?

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But that impermissible provision was based on a contractual interpretation that is already made by the panel.

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The ULP may involve either the NLRB or the FLRA looking to see what the alleged contractual terms are or not.

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That's not unusual.

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But right here, all they're doing is alleging a conflict which would resolve as a contractual matter.

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And the problem is that what the FLRA said, well, and the arbitrator purported to decide them.

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And we now are going to look at it and say that this position based on ULP is wrong.

[00:19:14] Speaker 01:
If you look at the petitioner's brief itself on page 28, it characterizes the arbitrator's decision as one of purely contractual matter, where it resolved the conflict between the two provisions.

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The existence of that conflict is where all the UOPs are built upon.

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If there is no conflict, then all the UOPs do not exist.

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They're all founded upon the fact that they have alleged a conflict, which the panel had rejected as a matter of contractual issue, which the panel had authority without review to decide under the congressional structure.

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Is it the authority's view that the authority's order is based exclusively on the contractual point and not on UOPs?

[00:19:58] Speaker 01:
Yes, exactly.

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What it talks about is the result.

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It read the claims as directly reviewing the panel's decision as an arbitrator trying to directly review and overturn the panel's decision, which is exactly what happened right at the outset.

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The panel's first point was to overturn the panel's resolution of two contractual proposals and opine on the merits of how it resolved those questions.

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So why does that not necessarily implicate the underlying ULPs?

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Because I take that to be the union's position here.

[00:20:31] Speaker 01:
Right.

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Because what they did was basically circumvent.

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If you look at the arbitrary decision, he had no right to actually review underlying contractual resolution of the panel.

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If you take away that from the arbitrary decision, there are no UOPs left.

[00:20:45] Speaker 01:
Because the whole structure of the arbitrary decision is built upon first overturning the panel's contractual resolution.

[00:20:53] Speaker 01:
So if we follow what Congress has said, that there's no review, the arbitrary decision should not exist, and the UOP's finding should not exist, because it's based on a false premise.

[00:21:05] Speaker 01:
I think if you look at how comparing the arbitrary decision at J-19 and the FISP's decision, it's exactly two approaches to the contractual proposals and trying to resolve the contractual proposals in opposite ways.

[00:21:17] Speaker 01:
Now, if you look at the arbitrary decision, its foundation, it is trying to overturn the panel's decision, and everything is based upon that.

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And I want to point out that the impact proceedings is very different from what the unions are doing.

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It is really about what the panel imposes on the parties as final and binding under the contract.

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We're not talking about a normal circumstance where two parties are trying to come in agreement.

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meeting of the minds.

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It's a special circumstance in federal collective bargaining that we have to uphold the final unbinding nature of what the panel decided.

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And that what the union is proposing is to overturn and asking this court to overturn the final binding contractual resolution of two proposals.

[00:22:04] Speaker 01:
And this case started in 2010.

[00:22:07] Speaker 01:
The Brewer decision from this court noted that Congress wanted these very final, rapid decisions from the panel to resolve these contractual proposals.

[00:22:17] Speaker 01:
I hope what the union has done is basically dressed up these claims, added these UOPs, and tried to circumvent that by finality of that decision to use this UOP to then overturn the finality of the contractual resolution.

[00:22:36] Speaker 01:
I think it's important to note that what the authority did was say there's a very big difference between alleging a direct review versus a collateral attack.

[00:22:46] Speaker 01:
And what the petitioner did was, at his base, asking the arbitrator and the courts today

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to directly review the resolution of the contractual.

[00:22:57] Speaker 01:
That's the first step that this board will have to look at before it reaches any of the UOP issues, which are just derivative of the contractual resolution of this case.

[00:23:08] Speaker 01:
Now, I think I just want to, if the remaining time is to,

[00:23:14] Speaker 01:
If there are no, I think I'm over time.

[00:23:17] Speaker 01:
There are no further questions.

[00:23:19] Speaker 04:
Do you have any further questions, Dr. Henderson?

[00:23:21] Speaker 04:
Anything further?

[00:23:22] Speaker 00:
Yeah, I just want to make this comment.

[00:23:25] Speaker 00:
You're relying on AFGE Local 3690.

[00:23:31] Speaker 00:
That case specifically said there was no discussion, mention, or implication of an unfair labor practice in the authority decision.

[00:23:44] Speaker 00:
Now that, to me, completely contradicts the second paragraph in our decision.

[00:23:51] Speaker 00:
I don't see how we can re-characterize the authority decision, but I don't have a question.

[00:23:59] Speaker 01:
I think what is what I read out of 36 90 is that there is a strong policy based and structural reason why we don't want to curtail it.

[00:24:15] Speaker 01:
You know, we don't want to review these final panel decisions and allow parties then to convert whatever

[00:24:21] Speaker 01:
of contractual claims at the outset into unfair labor practices because otherwise it would just curtail sort of, it would just prevent the panels and arbitrators from resolving purely contractual issues expeditiously.

[00:24:35] Speaker 01:
And in fact, if you look at the petitioners brief at 28, arbitrator did say this was a contractual matter and that's what they're trying to affirm today.

[00:24:43] Speaker 01:
Thank you.

[00:24:53] Speaker 02:
The National Weather Service Employees Organization case, which I argued not long ago here, was totally based, the unfair labor practice allegation in that case, was totally based on whether or not, or how one would interpret it, a contractual agreement.

[00:25:09] Speaker 02:
In that case, it was the ground rules.

[00:25:12] Speaker 02:
And interestingly, in NWSEO, the court found jurisdiction

[00:25:18] Speaker 02:
ultimately found that the arbitrators, that the FLRA was wrong in overturning the arbitrators interpretation of the contract, but reaffirmed that there was no unfair labor practice.

[00:25:31] Speaker 02:
And yet we still, and in reaffirming that there was no unfair labor practice, this court reviewed the other rationale behind the authority's decision.

[00:25:45] Speaker 04:
Well, that case in some sense wasn't really about, the way that I read it at least, wasn't about whether there was a ULP involved in the authority's decision.

[00:25:55] Speaker 04:
It was a question about whether you could review the entirety of the authority's decision when there was a ULP, or you could only review the part of it that decided a ULP.

[00:26:05] Speaker 02:
Well, and what I heard my colleague argue a moment ago, as I understood his argument, was that

[00:26:13] Speaker 02:
Since the union's underlying claim here is about interpretation of the contract, which we do not agree is proper characterization of our case, ergo, it's not reviewable.

[00:26:26] Speaker 02:
And as Judge Edgewood pointed out, you will often have, particularly when the repudiation of any unfair labor practices, alleging a repudiation of a contract, which is a common unfair labor practice, is going to involve inevitably the interpretation of the agreement.

[00:26:46] Speaker 02:
I also want to note that my colleague was arguing that the FSIP's interpretation of the party's contract was not subject to review.

[00:26:58] Speaker 02:
That is entirely wrong because the FSIP does not have jurisdiction to interpret the contract.

[00:27:05] Speaker 02:
And that's clear in FLRA case law.

[00:27:09] Speaker 02:
In fact, the FLRA, the FSIP has no jurisdiction whatsoever to resolve bargaining disputes over whether parties have a bargaining obligation.

[00:27:22] Speaker 02:
And it's ironic that just six months after the authority issued the original decision in this case,

[00:27:33] Speaker 02:
finding that Arbitrator Orkin did not have jurisdiction to determine whether the panel decision was within its jurisdiction or not, or whether it was permissive or not.

[00:27:47] Speaker 02:
The FLRA, in a case involving the National Labor Relations Board and the National Labor Relations Board Professional Association, overturned Arbitrator Vaughan's

[00:28:00] Speaker 02:
decision in which he held that he did not have jurisdiction to decide whether or not the panel properly took jurisdiction over what was an allegedly permissive issue.

[00:28:19] Speaker 02:
FLRA sent the case back to Arbitrator Vaughan saying you do have jurisdiction to determine whether the provision sent to the panel by the NLRB was permissive or not, and whether or not, and if you find it was not, find it was permissive, you have a right to find that it's not, that it's not binding on the parties.

[00:28:42] Speaker 02:
That's the exact, I mean, that's exactly what Arbitrator Orkin did.

[00:28:47] Speaker 02:
He looked at

[00:28:49] Speaker 02:
the provision imposed by the panel.

[00:28:55] Speaker 02:
He decided two things.

[00:28:56] Speaker 02:
One, he decided that it was permissive and therefore not binding.

[00:29:05] Speaker 02:
And secondly, that even if the panel had the authority to issue it, it conflicts with another agreement that the parties had a new contract.

[00:29:13] Speaker 02:
And further negotiations were necessary to resolve that apparent

[00:29:17] Speaker 04:
I think you are over your time.

[00:29:19] Speaker 04:
Let me just see if there are any further questions.

[00:29:21] Speaker 04:
Judge Anderson?

[00:29:23] Speaker 04:
Thank you.

[00:29:24] Speaker 04:
Thank you very much.

[00:29:25] Speaker 04:
The case is submitted.