ORAL ARGUMENT NOT YET SCHEDULED

No. 20-1183

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

LOCAL 3690, AFL-CIO,

Petitioner,

v.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

______________________________

ON PETITION FOR REVIEW OF A DECISION OF THE 

FEDERAL LABOR RELATIONS AUTHORITY

______________________________

BRIEF FOR RESPONDENT 

FEDERAL LABOR RELATIONS AUTHORITY

______________________________

NOAH B. PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

SARAH C. BLACKADAR

Attorney

Federal Labor Relations Authority

1400 K Street, N.W.

Washington, D.C. 20424

(202) 218-7908

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties

Appearing below in the administrative proceeding before the Federal Labor 

Relations Authority (the “Authority”) were the U.S. Department of Justice, Federal 

Bureau of Prisons Federal Correctional Institution Miami, Florida and the American 

Federation of Government Employees Local 3690 Council of Prison Locals, C-33. In 

this Court proceeding, the Union is the petitioner and the Authority is the 

respondent.

B. Ruling Under Review

The Union seeks review of the Authority’s Decision in U.S. Department of Justice 

Federal Bureau of Prisons Federal Correctional Institution Miami, Florida and American 

Federation of Government Employees Local 3690 Council of Prison Locals, C-33, 71 FLRA 

(No. 125) 660 (April 2, 2020) (Member Abbott concurring; Member DuBester 

dissenting). 

C. Related Cases

This case was not previously before this Court or any other court. There are 

no related cases currently pending before this Court or any court of which counsel for 

the Authority is aware.

/s/ Noah Peters

Noah Peters

Solicitor

Federal Labor Relations Authority

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES..................i

TABLE OF CONTENTS.......................................................................................................ii

TABLE OF AUTHORITIES................................................................................................iv

GLOSSARY OF ABBREVIATIONS .................................................................................ix

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ......1

STATEMENT OF THE ISSUE PRESENTED................................................................3

RELEVANT STATUTORY PROVISIONS ......................................................................3

STATEMENT OF THE CASE.............................................................................................4

STATEMENT OF THE FACTS ..........................................................................................8

I. This Court has already ruled—twice—on the meaning of Article 18 

of the Master Agreement........................................................................................8

II. The Arbitrator considered only the Agency’s alleged contractual 

violations of the parties’ agreement. ...................................................................10

III. The parties’ arguments concerning the Award before the Authority 

were based on the parties’ agreement, not the Statute.....................................12

IV. The Authority set aside the Award because it did not draw its essence 

from the parties’ agreement. ................................................................................13

SUMMARY OF THE ARGUMENT .................................................................................14

STANDARD OF REVIEW .................................................................................................18

ARGUMENT..........................................................................................................................20

I. The Court does not have jurisdiction to review the Authority’s 

Decision because it does not involve a ULP.....................................................20

A. The Union cannot create jurisdiction with this Court by claiming that 

the Agency committed a ULP by repudiating an MOU, because the

Union never raised that objection until it filed its brief with this 

Court. ...........................................................................................................27

B. Language in the Decision concerning the Steelworkers trilogy did not 

impact substantive law concerning ULPs. .............................................30

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C. The Court does not have jurisdiction under the narrow exception 

created by Leedom v. Kyne...........................................................................32

D. The Union’s attempt to assert jurisdiction under Customs is unavailing 

because this case does not involve law outside of the Authority’s area 

of responsibility. .........................................................................................36

II. If the Court reaches the merits, it should deny the Petition because 

the Authority’s Decision is neither arbitrary nor capricious. ..........................37

A. The Authority set aside the Award because it was in direct conflict 

with this Court’s precedent interpreting the parties’ Master 

Agreement...................................................................................................37

B. The Authority’s application of the Steelworkers trilogy to this case did 

not represent a break with the Authority’s past precedent..................40

CONCLUSION ......................................................................................................................41

CERTIFICATE OF SERVICE............................................................................................43

STATUTORY ADDENDUM

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TABLE OF AUTHORITIES

PAGE(S)

CASES

Am. Fed. Of Gov’t Emps., Local 2303 v. FLRA,

815 F.2d 718 (D.C. Cir. 1987)........................................................................................... 19

Am. Fed’n of Gov’t Emps., Local 2343 v. FLRA,

144 F.3d 85 (D.C. Cir. 1998)............................................................................................. 19

Am. Fed’n of Gov’t Emps., Local 2510 v. FLRA,

453 F.3d 500 (D.C. Cir. 2006)........................................................... 16, 21, 26, 30, 32, 33

Ass’n of Civilian Techs., Mont. Air Chapter No. 29 v. FLRA,

22 F.3d 1150 (D.C. Cir. 1994)........................................................................................... 19

Ass’n of Civilian Technicians, N.Y. State Council v. FLRA,

507 F.3d 697 (D.C. Cir. 2007)....................................................................2, 15, 21, 22, 30

Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc.,

502 U.S. 32 (1991)............................................................................................................... 34

Bd. of Governors Office of Cuba Broad. v. FLRA,

752 F.3d 453 (D.C. Cir. 2014).................................................................................1, 18, 21

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,

419 U.S. 281 (1974)............................................................................................................. 19

Bureau of Alcohol, Tobacco & Firearms v. FLRA,

464 U.S. 89 (1983)............................................................................................................... 19

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984)............................................................................................................. 19

Citgo Asphalt Refining Co. v. Paper, Allied-Indus., Chem. & Energy Workers Int’l Union Local 

No. 2-991,

385 F.3d 809 (3d Cir. 2004)............................................................................................... 41

City of Arlington, Tex. v. Fed. Commc’n Comm’n,

569 U.S. 290 (2013)............................................................................................................. 20

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CTS Corp. v. Env’t Prot. Agency,

759 F.3d 52 (D.C. Cir. 2014)............................................................................................. 18

Davis v. Wakelee,

156 U.S. 680 (1895)............................................................................................................. 26

Equal Emp’t Opportunity Comm’n v. FLRA,

476 U.S. 19 (1986)............................................................................................................... 20

Fed. Bureau of Prison v. FLRA,

654 F.3d 91 (D.C. Cir. 2011)............................................................... 2, 4, 6, 8, 29, 37, 41

Fed. Deposit Ins. Corp. v. FLRA,

977 F.2d 1493 (D.C. Cir. 1992)......................................................................................... 19

Griffith v. FLRA,

842 F.2d 487 (D.C. Cir. 1988)..................................................................14, 19, 20, 32, 34

Int’l Union, United Auto Workers v. Marrowbone Dev. Co.,

232 F.3d 383 (4th Cir. 2000)................................................................................. 32, 36, 42

Kokkonen v. Guardian Life. Ins. Co. of Am.,

511 U.S. 375 (1994)............................................................................................................. 18

Leedom v. Kyne,

358 U.S. 184 (1958).......................................................................................................16, 34

McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial 

Conference of the U.S.,

264 F.3d 52 (D.C. Cir. 2001)............................................................................................. 34

Nat’l Air Traffic Controllers Ass’n AFL-CIO v. FSIP,

437 F.3d 1256 (D.C. Cir. 2006)......................................................................................... 35

Nat’l Treasury Emps. Union v. FLRA,

414 F.3d 50 (D.C. Cir. 2005)............................................................................................. 20

Nat’l Treasury Emps. Union v. FLRA,

754 F.3d 1031 (D.C. Cir. 2014)...................................................................................19, 20

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Nat'l Weather Serv. Emps. Org. v. FLRA,

966 F.3d 875 (2020).........................................................................................16, 22, 30, 36

Nyunt v. Chairman, Broad. Bd. of Governors,

589 F.3d 445 (D.C. Cir. 2009)........................................................................16, 33, 34, 36

Overseas Educ. Ass’n v. FLRA,

824 F.2d 61 (D.C. Cir. 1987)............................................................. 15, 18, 20, 21, 22, 27

Patent Office Prof. Ass’n v. FLRA,

180 Fed. Appx. 176 (D.C. Cir. 2006) ............................................................................... 21

Penn. Power Co. v. Local Union No. 272, Int’l Broth. of Elec. Workers,

276 F.3d 174 (3d Cir. 2001).................................................................................. 31, 36, 42

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994)............................................................................................................. 20

U.S. Dep’t of Air Force v. FLRA,

680 F.3d 826 (D.C. Cir. 2012)........................................................................................... 27

U.S. Dep’t of Com., Nat'l Oceanic & Atmospheric Admin., Nat'l Weather Serv., Silver Spring, 

Md. v. FLRA,

7 F.3d 243 (D.C. Cir. 1993) ..................................................................................................3

U.S. Dep’t of Homeland Sec. v. FLRA,

784 F.3d 821 (D.C. Cir. 2015)........................................................................................... 21

U.S. Dep’t of Interior v. FLRA,

26 F.3d 179 (D.C. Cir. 1994)............................................................................................. 24

U.S. Dep’t of Justice v. FLRA,

981 F.2d 1339 (D.C. Cir. 1993)...................................................................................22, 33

U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Coleman, Fla. v. FLRA,

875 F.3d 667 (D.C. Cir. 2017).......................................................2, 4, 6, 9, 25, 29, 37, 39

U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Florence, Colo.,

70 FLRA 748 (2019)...................................................................................................7, 9, 10

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U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Lompoc, Cal.,

70 FLRA 596 (2018)......................................................................................................... 7, 9

U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Big Springs, Tex.,

70 FLRA 442 (2018)......................................................................................................... 7, 9

U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Phx., Ariz.,

70 FLRA 1028 (2018).................................................................................................7, 9, 10

U.S. Dep’t of Labor,

34 FLRA 573 (1990)........................................................................................................... 39

U.S. Dep’t of Navy, Naval Undersea Warfare Center Division Newport, Rhode Island, v. 

FLRA,

665 F.3d 1339 (D.C. Cir. 2012)............................................................................ 18, 28, 29

U.S. Dep’t of the Navy, Puget Sound Naval Shipyard & Intermediate Maintenance Facility, 

Bremerton, Wash.,

70 FLRA 754, 755-56 (2018) (2018) ............................................................................7, 39

U.S. Dep’t of the Treasury, Internal Revenue Serv.,

70 FLRA 783 (2018)........................................................................................................... 39

U.S. Dep't of the Treasury, U.S. Customs Service v. FLRA,

43 F.3d 682 (D.C. Cir. 1994)................................................................................ 17, 33, 37

Zedner v. United States,

547 U.S. 489 (2006)............................................................................................................. 26

STATUTES

5 U.S.C. § 7101........................................................................................................................ 37

5 U.S.C. § 7122(a)................................................................................................35, 36, 37, 38

5 U.S.C. § 7123(a)....................................................... 1, 3, 14, 15, 18, 20, 21, 23, 30, 33, 34

5 U.S.C. § 7123(c).............................................................................2, 3, 7, 16, 19, 25, 27, 28

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REGULATIONS

5 C.F.R. § 2425.4(c)................................................................................................................ 28

5 C.F.R. § 2425.6 .................................................................................................................... 35

5 C.F.R. § 2425.6(b) ............................................................................................................... 38

5 C.F.R. § 2429.5 ..............................................................................................................22, 40

OTHER AUTHORITIES

Subcomm. on Postal Personnel and Modernization of the Comm. on Post Office and 

Civil Serv., 96th Cong., 1st Sess., Legislative History of the Fed. Serv. Labor-Mgmt. 

Relations Statute, Title VII of the Civil Serv. Reform Act of 1978, at 821 (1978)................ 21

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GLOSSARY OF ABBREVIATIONS

Agency U.S. Department of Justice Federal Bureau of Prisons 

Federal Correctional Institution Miami, Florida

Arbitrator Dennis J. Campagna

Award The Arbitrator’s September 14, 2018 Award

Augmentation The temporary reassignment of non-custodial staff to 

custody positions when a shift is short of custody staff

Authority Respondent, the Federal Labor Relations Authority

CBA The Master Agreement signed by the Federal Bureau of 

Prisons covering all 122 of its correctional facilities

Decision The decision of the Authority in this case, dated April 2, 

2020

Master Agreement The Master Agreement signed by the Federal Bureau of 

Prisons covering all 122 of its correctional facilities 

MOU Memorandum of Understanding

PA The Petitioner’s Appendix, which is the Joint Appendix 

Pet’r Br. Petitioner’s opening brief 

The Statute The Federal Service Labor-Management Relations Statute, 

5 U.S.C. §§ 7101-7135 (2018)

ULP Unfair Labor Practice

Union Petitioner, American Federal of Government Employees 

Local 3690, Council of Prison Locals, C-33

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STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION

The American Federation of Government Employees Local 3690, Council of 

Prison Locals, C-33’s (the “Union”) seeks review of the decision of the Federal Labor 

Relations Authority (the “Authority” or “FLRA”) in U.S. Department of Justice Federal 

Bureau of Prisons Federal Correctional Institution Miami, Florida and American Federation of 

Government Employees Local 3690 Council of Prison Locals, C-33, 71 FLRA (No. 125) 660 

(April 2, 2020) (Member Abbott concurring; Member DuBester dissenting) (the 

“Decision”).1

The Union’s Petition for Review, however, suffers from two fatal jurisdictional 

flaws. First and foremost, it is jurisdictionally barred by Section 7123(a) of the 

Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2018) 

(the “Statute”). Section 7123(a) precludes circuit courts from asserting jurisdiction 

over Authority decisions resolving exceptions to arbitration awards, except where the 

decision “involves an unfair labor practice.” 5 U.S.C. § 7123(a)(1); Broad. Bd. of 

Governors Office of Cuba Broad. v. FLRA, 752 F.3d 453, 456 (D.C. Cir. 2014) (“Cuba 

Broadcasting”). In order to “involve” an unfair labor practice (“ULP”), the Authority’s 

order must “include some sort of substantive evaluation of a statutory unfair labor 

 1 The Decision is included in the Petitioner’s Appendix (“PA”) at PA 201-17. In the 

Authority’s Decision and other documents in Petitioner’s Appendix the Union is 

referred to as Local 3960. (See, e.g., PA 1, 37, 144, 201.) This is an error, the Union is 

Local 3690, for consistency and accuracy Local 3690 is used in this brief. (See PA 

197.)

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practice.” Ass’n of Civilian Technicians, N.Y. State Council v. FLRA, 507 F.3d 697, 699 

(D.C. Cir. 2007) (“ACT”) (internal quotation marks omitted). 

Here, the Authority’s Decision reviews an arbitrator’s award adjudicating solely 

contractual claims—specifically, the Union’s claim that the U.S. Department of Justice 

Federal Bureau of Prisons Federal Correctional Institution Miami, Florida (the 

“Agency”) breached Article 18 of the parties’ master collective bargaining agreement 

(“CBA” or the “Master Agreement”) by refusing to negotiate over staffing 

assignments. Although the Union might have framed its claims in terms of a ULP, it 

chose not to do so, and even resisted the Agency’s attempts to characterize its claims 

as a ULP. The Union presumably took this tack because this Court has twice ruled in 

ULP proceedings that the plain language of Article 18 covers staffing assignments and 

the Agency did not have a duty to negotiate further concerning such assignments. See 

Fed. Bureau of Prison v. FLRA, 654 F.3d 91, 96 (D.C. Cir. 2011) (“BOP I”); see also U.S. 

Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Coleman, Fla. v. FLRA, 875 F.3d 

667, 670 (D.C. Cir. 2017) (“BOP II”). Thus, the Authority’s Decision did not involve 

a ULP. 

Second, under the Statute, this Court may not consider any “objection that has 

not been urged before the Authority, or its designee.” 5 U.S.C. § 7123(c). Here, the 

Union never raised with the Arbitrator Dennis J. Campagna (the “Arbitrator”) or the 

Authority the arguments it now makes to this Court: that the Agency committed a 

ULP by refusing to negotiate, that the Agency repudiated a Memorandum of 

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Understanding (“MOU”) which constituted a ULP, or that the Authority’s Decision 

violated a clear statutory mandate. Its failure to do so deprives this Court of the 

ability to consider those arguments under § 7123(c). See U.S. Dep’t of Com., Nat’l

Oceanic & Atmospheric Admin., Nat’l Weather Serv., Silver Spring, Md. v. FLRA, 7 F.3d 243 

(D.C. Cir. 1993) (finding that this Court lacked jurisdiction to hear objections that the 

petitioner failed to raise before the Authority).

Neither the Arbitrator’s Award nor the Authority’s decision addressed ULPs or 

the law concerning ULPs. And the Union below did not raise any of the arguments 

that it now makes to this Court in a its attempt to retroactively transform this matter 

into one involving a ULP. As a result, this Court lacks appellate jurisdiction under 

§ 7123(a)(a) and § 7123(c) of the Statute, and the Union’s Petition for Review must be 

dismissed. 

STATEMENT OF THE ISSUE PRESENTED

Does the Court have jurisdiction to review the Authority’s Decision vacating an 

arbitration award that addressed purely contractual claims when 5 U.S.C. § 7123(a) 

limits of judicial review of Authority arbitration decisions to cases involving a ULP?

Can this Court, consistent with 5 U.S.C. § 7123(c), consider new arguments 

that the Union raises for the first time on appeal?

RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions are contained in the attached 

Statutory Addendum. (Add. 1.)

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STATEMENT OF THE CASE

The Union seeks to challenge the Authority’s Decision vacating the Arbitrator’s 

September 14, 2018 award (the “Award”) for failing to draw its essence from the 

parties’ agreement. (PA 201.)

Article 18 of the parties’ Master Agreement sets forth the procedures the 

Agency must observe when assigning personnel to shifts at the Agency’s prisons. 

BOP I, 654 F.3d at 93. Article 18 represents the final product of the parties’ impact 

and implementation bargaining, not the “starting point for constant negotiations over 

every agency action.” Id. at 95 (internal quotations omitted). 

In 2011, this Court first considered the extent to which Article 18 covered 

Agency personnel assignments. Id. It concluded that Article 18 represents “the 

agreement of the parties about the procedures by which a warden formulates a roster, 

assigns officers to posts, and designates officers for the relief shift.” Id. It further 

determined that, “[b]ecause the parties reached an agreement about how and when 

management would exercise its right to assign work, the implementation of those 

procedures, and the resulting impact, do not give rise to a further duty to bargain.” Id. 

at 96. “Article 18 therefore covers and preempts challenges to all specific outcomes 

of the assignment process.” Id. 

In 2017, this Court again considered Article 18 in the context of the Agency’s 

attempt to use consolidated relief rosters without engaging in interim bargaining. 

BOP II, 875 F.3d at 673. The Court found that the Agency did not have a duty to 

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engage in interim bargaining because Article 18 covered personnel assignments and 

preempted challenges to the outcomes of those assignments. Id. at 674-75. The 

Court therefore found that the Authority erred when it concluded “that negotiation of 

the procedures for assigning work does not cover all assignments devised in 

compliance with those procedures.” Id. at 676. 

The case at bar developed against this legal background. In 2016, the Agency 

changed its staff assignment practices for vacant custody positions at the prison. (PA 

3.) The new practices included using non-custody employees to fill vacant custody 

positions at the prison, a practice known as “augmentation.” (PA 3.)2

 Prior to 2016, 

the Agency generally left those positions vacant or filled them with overtime shifts 

from custody employees. (PA 3-4.)

The Union requested bargaining over the impact and implementation of the 

Agency’s change. (PA 5.) The Agency declined, citing Article 18 of the parties’ 

collective bargaining agreement (“CBA”). (PA 5.)3

 After the Agency refused to 

 2 “Custody,” in this context, refers to shifts where employees are responsible for 

directly supervising prisoners. (PA 110-11.) “Non-custody” shifts are those in other 

departments such as education, food services, recreation, and medical services. (Id.) 

All prison employees are initially trained as correctional officers. (PA 111.)

3 The Award indicates that the Agency’s Human Resource Manager responded to the 

Union’s request on “January 8, 2018” but this section of the Award list all events in 

chronological order, and is likely an error that should read “January 8, 2016.” 

However, the record does not contain a copy of this written notice.

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bargain, the Union filed a grievance alleging violations of multiple articles of the CBA. 

(PA 5.)

In his Award, the Arbitrator found that the issue before him was whether the 

Agency’s use of augmentation violated Article 16, 18, 27, or 28 of the Master 

Agreement. (PA 18.) The Arbitrator found that the Agency had a past practice of 

non-augmentation at this prison. (PA 20.) He also found that this past practice was 

an unwritten contractual term. (PA 20-21.) Thus, a change in that practice was 

equivalent to a change in the parties’ contract, and the Agency had a duty to bargain 

over the impact and implementation of augmentation at this particular prison. (PA 

22-23.) The Award, however, failed to mention this Court’s previous decisions 

interpreting Article 18 and holding clearly that the Agency had no further duty to 

bargain over staffing assignments. (PA 13-31; see BOP I, 654 F.3d at 96; BOP II, 875 

F.3d at 670.)

The Agency filed multiple exceptions to the Award, including that it failed to 

draw its essence from the parties’ agreement. (PA 37-72.) The Agency argued that it 

had no duty to bargaining over the use of augmentation because it was simply a 

specific type of reassignment. (PA 44-46.) The Agency argued that it and the Union 

had already bargained over the procedures for assignment and reassignment of shifts 

and work assignments, resulting in Article 18 of the Master Agreement. (PA 47-48.)

The Authority agreed and found that the parties’ past practice, while helpful for 

interpreting ambiguous terms in a contract, could not alter the plain language of the 

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contract (as the Award did here). (PA 202 (citing U.S. Dep’t of the Navy, Puget Sound 

Naval Shipyard & Intermediate Maintenance Facility, Bremerton, Wash., 70 FLRA 754, 755-

56 (2018) (Member DuBester dissenting).) The Authority acknowledged the long 

history of Article 18, including a plethora of Authority decisions and two D.C. Circuit 

opinions interpreting Article 18. (PA 202-03.) 4

 The Authority then set aside the 

Award because it failed to draw its essence from the parties’ agreement. (PA 201.) 

The Authority found that the Arbitrator erred when he created a new contractual 

term, purportedly derived from a past Agency practice, that directly contradicted the 

established meaning of Article 18 of the Master Agreement. (PA 203.) The Authority 

also found that the Arbitrator erroneously required that the Agency engage in 

additional impact and implementation bargaining. (PA 203.) Notably, the Authority’s 

decision did not involve a ULP and did not address substantive law concerning ULPs.

The Union did not move to reconsider the Authority’s decision. Instead, it 

filed the instant Petition for Review. Despite the clear bar of § 7123(c) prohibiting 

parties from raising new issues on appeal, the Union argues for the first time that its 

 4 Following BOP II, the Authority vacated a series of arbitration awards that found 

that other articles in the parties’ agreement took precedent over Article 18, and 

required the agency to bargain. See U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. 

Inst., Phx., Ariz., 70 FLRA 1028, 1029-30 (2018) (Member DuBester dissenting); U.S. 

Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Florence, Colo., 70 FLRA 748, 

749 (2019) (Member DuBester dissenting); U.S. Dep’t of Justice, Fed. Bureau of Prisons, 

Fed. Corr. Complex, Lompoc, Cal., 70 FLRA 596 (2018) (Member DuBester dissenting); 

U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Big Springs, Tex., 70 FLRA 442 

(2018) (Member DuBester concurring).

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grievance involved a ULP, that the Agency’s alleged repudiation of the MOU 

constituted a ULP, and that the Authority’s decision violated clear statutory mandates. 

STATEMENT OF THE FACTS

I. This Court has already ruled—twice—on the meaning of Article 18 of the 

Master Agreement.

Over twenty years ago, the parties reached an agreement regarding what 

procedures the Agency would observe when assigning personnel to shifts at the 

Agency’s numerous prisons. BOP I, 654 F.3d at 93. That agreement, memorialized in 

Article 18 of the Master Agreement, represented the final product of the parties’ 

impact and implementation bargaining concerning personnel assignments and was 

meant to preclude further negotiations over personnel assignments. Id. at 95. 

This Court first considered the scope of Article 18 in 2011, in BOP I. See Id. It 

concluded that Article 18 represents “the agreement of the parties about the 

procedures by which a warden formulates a roster, assigns officers to posts, and 

designates officers for the relief shift.” Id. The Court rejected the narrower 

interpretation of Article 18 adopted by the Authority in BOP I: “Because the parties 

reached an agreement about how and when management would exercise its right to 

assign work, the implementation of those procedures, and the resulting impact, do not 

give rise to a further duty to bargain.” Id. at 96. “Article 18 therefore covers and 

preempts challenges to all specific outcomes of the assignment process.” Id.

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In 2017, Article 18 was again before this Court after the Authority found that 

Article 18 did not cover the use of consolidated relief rosters. BOP II, 875 F.3d at 

673. The Court again rejected a narrow interpretation of the covered-by doctrine and 

the parties’ agreement, holding that Article 18 precluded further negotiations over 

staffing assignments. Id. at 674-75. BOP II held that the Authority erred when it 

concluded “that negotiation of the procedures for assigning work does not cover all 

assignments devised in compliance with those procedures.” Id. at 676.

Informed by these two decisions, the Authority subsequently vacated four 

arbitration awards that relied on the same erroneous interpretation of Article 18 that 

this Court had twice rejected. See Fed. Corr. Inst. Big Spring, Tex., 70 FLRA 442 (2018); 

Fed. Corr. Complex Lompoc, Cal., 70 FLRA 596 (2018); Fed. Corr. Complex Florence, Colo., 

70 FLRA 748 (2018); Fed. Corr. Inst. Phoenix, Az., 70 FLRA 1028 (2018). Two of 

those cases involved the Agency’s use of augmentation. In both cases, the Authority 

found that the arbitration award failed to draw its essence from the parties’ agreement 

because it held that the agency had a duty to bargain over the outcome of the 

assignment process, in contravention of BOP I and BOP II. Fed. Corr. Complex Florence, 

Colo., 70 FLRA at 748; Fed. Bureau of Prisons Fed. Corr. Inst. Phoenix, Az., 70 FLRA at 

1028.

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II. The Arbitrator considered only the Agency’s alleged contractual 

violations of the parties’ agreement.

In 2016, the Agency began assigning non-custody employees to fill vacant 

custody positions at the prison, a practice known as “augmentation.” (PA 3-5.) The 

non-custody employees were originally trained for custody positions, and received 

regular refresher trainings, but had, over time, been assigned to various non-custody 

departments within the prison. (PA 111, 203.) Those employees did not routinely fill 

custody shifts prior to 2016. (PA 20, 203.) Instead, the Agency either left the 

additional custody posts vacant or filled them with custody employees on an overtime 

basis. (PA 203.) 

In 2016, the Agency changed its staffing practices and began using 

augmentation to fill vacant custody posts. (PA 20, 203.) The Union objected to the 

Agency’s use of augmentation without notice and an opportunity for the Union to 

bargain. (PA 5-6.) When the Agency refused to bargain, citing Article 18 of the 

parties’ agreement, the Union filed a grievance. (PA 5-6.)

The Agency denied the grievance and the Union invoked arbitration. (PA 5-6.) 

The Arbitrator had authority to resolve only the issues alleged in the Union’s demand 

for arbitration. (PA 2.) He found that the issue before him was whether the Agency 

“violated the Ma[s]ter Agreement at, among other Articles, Article 18 (Hours of 

Work) and Article 28 (Uniform, Clothing) by augmenting [n]on-[c]ustody staff to 

work in [c]ustody [p]osts.” (PA 2.)

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Before the Arbitrator, the Union alleged that when the Agency failed to follow 

its past practice and refused to bargain over the implementation of a change to that 

practice, it violated Article 4 of the Master Agreement. (PA 13.) Article 4 requires the 

Agency to provide notice of changes to working conditions and opportunity to 

negotiate in accordance with the parties’ Master Agreement. (PA 21.) The Agency 

responded that augmentation was merely a method of reassigning employees. (PA 

16.) The Agency further argued that it did not have a duty to bargain over the use of 

augmentation because Article 18 reflected the fully-negotiated procedures that the 

parties agreed the Agency would use for reassignments. (PA 16.)

In his Award, the Arbitrator determined that it was the Agency’s practice 

before 2016 not to use augmentation to fill vacant custody posts. (PA 20.) The 

Arbitrator found that “[t]hus, a binding past practice was established and violated at 

[Federal Correctional Institution] Miami.” (PA 13.) The Arbitrator then accepted the 

Union’s argument that Articles 3, 4, and 5 required the Agency to bargain over the 

implementation of augmentation at the prison. (PA 20-21.) In so doing, the 

Arbitrator implicitly rejected the Agency’s argument that it had no obligation bargain 

over augmentation because it had already done so when the parties negotiated Article 

18. (PA 20-23.) The Arbitrator found that the Agency also violated Article 27, 

regarding safe working conditions, when it violated the past practice of nonaugmentation. (PA 23-27.) The Arbitrator awarded backpay to custody staff who lost 

overtime opportunities because of the Agency’s use of augmentation. (PA 35.)

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III. The parties’ arguments concerning the Award before the Authority were 

based on the parties’ agreement, not the Statute.

The Agency filed exceptions to the Award with the Authority, arguing that the 

Award failed to draw its essence from the parties’ agreement and was contrary to law. 

(PA 37-72.) The Agency argued that the Award, which required the Agency to 

bargain over the outcome of staffing assignments, could not be squared with the plain 

language of Article 18 or this Court’s decisions regarding Article 18. (PA 48-49 

(“Even with this unequivocal contract language, and the explanation of the breadth of 

Article 18 from the FLRA and the D.C. Circuit . . . [the Arbitrator] still manages to 

interpret Article 18, in conjunction with his take on Articles 3, 4, and 5, to require the 

Agency to give notice and bargaining before reassigning non-custody employees to 

cover custody posts.”); see also PA 70-71.) The Agency noted that the Award directly 

conflicted with Sections o, r, and s of Article 18 that cover reassignments when the 

Agency moves employees to different shifts or posts. (PA 49.) Section o of Article 

18 dictates the procedure that the Agency must follow when making changes to 

employees’ shifts. (PA 141.) While it requires the Agency to give 24-hour notice 

when changing an employees’ shift time, it also states that “[w]ork assignments on the 

same shift may be changed without advanced notice.” (PA 141.) Section r requires 

the Agency to “make reasonable efforts to assure that” employee shift changes do not 

affect the employees’ days off. (PA 142.) And Section s states that shift and 

assignment changes must be confirmed in writing. (PA 142.)

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The Agency also argued that the Union’s claims should more logically be 

brought as a ULP, rather than as the contractual claims the Union asserted in the 

grievance. (PA 50.) But the Union, in its opposition to the Agency’s exceptions, 

emphasized that this was not a ULP case, citing the Arbitrator’s finding “that the 

Agency committed an unjustified and/or unwarranted personnel action by violating 

Article 18 of the parties’ agreement.” (PA 155.) The Union further argued that the 

Award represented “a plausible interpretation of the agreement.” (PA 158.) Finally, 

the Union reiterated its position that Articles 3, 4, and 5 require the Agency to bargain 

with the Union over the use of augmentation and that Article 18 does not extend to 

the use of this specific reassignment practice. (PA 157-58.)

IV. The Authority set aside the Award because it did not draw its essence 

from the parties’ agreement.

The Authority set aside the Award because it failed to draw its essence from 

the parties’ agreement—specifically, because the Arbitrator relied on past practice 

rather than the plain wording of the Master Agreement. (PA 203.) At the outset, the 

Authority noted that the Award concerned only whether the Agency’s conduct 

violated various articles of the parties’ CBA. (PA 201-02.) The Authority found that 

the entire Award flowed from “the Arbitrator’s determination that the Agency’s 

previous restraint from utilizing . . . augmentation amounted to a ‘past practice,’ and 

an ‘unwritten contractual right.’” (PA 202.) The Authority determined that the 

Arbitrator’s use of past practice was untenable here because it directly contradicted 

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the plain wording of the Master Agreement that allowed the Agency to reassign 

employees in accordance with Article 18 without additional bargaining. (PA 202-03).

The Authority then discussed this Court’s two decisions holding that Article 18 

represents the parties’ complete agreement regarding scheduling and work assignment 

procedures. (PA 202-03.) The Authority found that the Award directly contradicted 

the established meaning of Article 18, as determined by this Court and the Authority. 

(PA 203.) The Authority therefore set aside the Award because it failed to draw its 

essence from the agreement. (PA 203.)

This Petition for Review followed. 

SUMMARY OF THE ARGUMENT

The Court does not have jurisdiction to hear the Petition for Review because 

the Authority’s Decision resolving exceptions to the Arbitrator’s Award does not 

involve a ULP. 5 U.S.C. § 7123(a). Section 7123(a) of the Statute expresses an 

“unusually clear congressional intent” to “foreclose review” of the Authority decisions 

in arbitration cases. Griffith v. FLRA, 842 F.2d 487, 490 (D.C. Cir. 1988). The 

Union’s grievance, the Award, and the Authority’s Decision do not discuss any law 

governing ULPs. Further, the Union’s grievance did not allege, and neither the 

Arbitrator nor the Authority adjudicated, a claim that the Agency committed a ULP. 

Thus, this Court lacks jurisdiction.

The Court strictly interprets § 7123(a). As early as 1987, this Court rejected the 

argument that federal court jurisdiction may be conferred simply because a party may 

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be able to recast a contractual claim as a ULP—as the Union’s brief seeks to do here 

(Pet’r Br. 15-16)— after an arbitrator and Authority rendered their decisions. Overseas 

Educ. Ass’n v. FLRA, 824 F.2d 61, 66 (D.C. Cir. 1987) (“OEA”). 

In subsequent cases the Court has reiterated this principle. While this Court 

found that its jurisdiction extends beyond cases involving on-the-merits adjudication 

of ULPs, an Authority’s order must “include some sort of substantive evaluation of a 

statutory” ULP before this Court’s jurisdiction may be invoked. Ass’n of Civilian Techs., 

N.Y. State Council v. FLRA, 507 F.3d 697, 699 (D.C. Cir. 2007). This case does not 

involve a ULP, the covered-by doctrine, or an allegation of a ULP based on an 

Agency contract repudiation, despite the contrary assertions that the Union presents 

for the first time on appeal. (Pet’r Br. 11-12, 20-21.) This case merely involves the 

Authority’s Decision granting exceptions to an arbitration award based on its failure 

to draw its essence from the parties’ agreement.

This Court’s most recent decision addressing the scope of § 7123(a) also 

dictates that this Petition be dismissed for want of federal court jurisdiction. In 

National Weather Service Employees Organization v. FLRA, (“NWSEO”), the Court 

emphasized that § 7123(a) requires “that a statutory [ULP] be discussed in some way 

in, or be some part of, the Authority’s order” before this Court may exercise 

jurisdiction over the matter. 966 F.3d 875, 880 (2020) (quoting OEA, 824 F.2d at 65). 

Here, the Union never attempted to describe its grievance as a ULP until it 

filed its Petition for Review, and the Authority’s order does not—in any part—discuss 

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a ULP. The Union’s last-ditch effort to recast its grievance as a ULP, either for 

refusing to negotiate or for repudiating a contract, cannot create jurisdiction. The 

Union never raised those issues before the Authority, and the Court should decline to 

hear them for the first time on appeal. 5 U.S.C. § 7123(c).

In addition, the Union’s argument that this Court could have jurisdiction under 

Leedom v. Kyne, 358 U.S. 184 (1958) is unavailing. Leedom is a doctrine that, in 

extremely rare circumstances, may be invoked to establish federal district court 

jurisdiction. But it has no application whatsoever to appellate jurisdiction. Am. Fed’n of 

Gov’t Emps., Local 2510 v. FLRA, 453 F.3d 500, 502 (D.C. Cir. 2006) (“AFGE”) 

(“Leedom v. Kyne implicates the jurisdiction of the district court, not that of the court of 

appeals”). Moreover, the Leedom doctrine is does not apply in cases like this, where 

“the statutory preclusion of review” is express, rather than implied. Nyunt v. Chairman, 

Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009). Finally, the Union has not 

met its high burden of demonstrating that the Authority acted “in excess of its 

delegated powers and contrary to a specific prohibition in the statute that is clear and 

mandatory.” Id. 

Similarly unavailing is the Union’s attempt to assert jurisdiction under U.S. 

Department of the Treasury, U.S. Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) 

(“Customs”). Customs represented an unusual circumstance in which the Authority 

interpreted import and export laws and regulations. 43 F.3d at 686. Customs says that 

this Court may review cases in which the Authority exceeds its own jurisdiction by 

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interpreting a law that does not “affect[] working conditions.” Id. at 690-91. As the 

Authority’s Decision dealt only with contract interpretation, not the interpretation of 

any statute, Customs is inapplicable.

Even if the Court had jurisdiction to review this Petition, the Authority acted 

reasonably in setting aside the Award. Indeed, it had little choice. The meaning of 

Article 18 of the Master Agreement has been made clear through the course of at least 

a dozen cases that have been adjudicated since 2003. (PA 202-03.) And this Court 

has twice ruled that Article 18 allows the Agency to make any staffing assignments or 

reassignments it chooses so long as it does so in accordance with Article 18 

procedures—precedents the Arbitrator failed to discuss. As the Award cannot be 

squared with this Court’s precedent or the plain language of Article 18, the 

Authority’s Decision must be upheld. 

The Union’s citation to the Steelworkers trilogy is unavailing. The Steelworkers

cases do not require the Authority to blindly ratify every arbitrator’s decision, no 

matter how untethered from the language of the parties’ CBA. Moreover, the 

Authority’s reason for overturning the Award—because it did not draw its essence 

from the parties’ agreement—is similar to those considered by federal courts in the 

private sector. Even if this Court had jurisdiction to review it, then, the Authority’s 

Decision complied with applicable law and was neither arbitrary nor capricious. 

The Union’s Petition should therefore be dismissed or denied.

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STANDARD OF REVIEW

Before the Court considers the merits of the Union’s arguments, it “must 

determine whether [it] has subject matter jurisdiction.” Broad. Bd. of Governors Office of 

Cuba Broad. v. FLRA, 752 F.3d 453, 465 (D.C. Cir. 2014); CTS Corp. v. Env’t Prot. 

Agency, 759 F.3d 52, 57 (D.C. Cir. 2014) (“This Court, as a matter of constitutional 

duty, must assure itself of its jurisdiction to act in every case.”). “Federal courts are 

courts of limited jurisdiction[,]” and the burden is on the party seeking judicial review 

to establish that its petition lies within the Court’s limited jurisdiction. Kokkonen v. 

Guardian Life. Ins. Co. of Am., 511 U.S. 375, 377 (1994).

Jurisdiction to review Authority decisions is restricted by “the language of the 

[S]tatute,” which provides that Authority orders involving an arbitration award cannot 

be reviewed by this Court “unless the order involves a [ULP].” OEA, 824 F.2d at 64; 

see also 5 U.S.C. § 7123(a)(1). “If the Authority’s Decision was based solely on the 

collective bargaining agreement between [the agency] and [the union], then [this 

Court] do[es] not have jurisdiction.” U.S. Dep’t of Navy, Naval Undersea Warfare Center 

Division Newport, Rhode Island, v. FLRA, 665 F.3d 1339, 1344 (D.C. Cir. 2012) 

(“Undersea Warfare”).

If the Court finds it has jurisdiction, the scope of its review is narrow. See, e.g., 

Am. Fed. Of Gov’t Emps., Local 2303 v. FLRA, 815 F.2d 718, 721 (D.C. Cir. 1987) 

(citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 

(1974)). The Court will uphold the Authority’s decisions unless they are “arbitrary, 

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capricious, an abuse of discretion, or otherwise not in accordance with law.” Nat’l 

Treasury Emps. Union v. FLRA, 754 F.3d 1031, 1041 (D.C. Cir. 2014) (“NTEU”); see 

also Am. Fed’n of Gov’t Emps., Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998); 

5 U.S.C. § 7123(c) (incorporating Administrative Procedure Act standards of review). 

The Court “affords considerable deference to the Authority,” in interpreting and 

administering its own Statute. See Fed. Deposit Ins. Corp. v. FLRA, 977 F.2d 1493, 1496 

(D.C. Cir. 1992) (internal quotation marks omitted); see also Ass’n of Civilian Techs., 

Mont. Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994) (citing Chevron, 

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)); Bureau of Alcohol, 

Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 (1983). In addition, the Court considers 

the Authority’s factual findings “conclusive” if they are “supported by substantial 

evidence on the record considered as a whole.” 5 U.S.C. § 7123(c).

Finally, under § 7123(c) of the Statute, this Court may not consider any 

“objection that has not been urged before the Authority, or its designee . . . unless the 

failure or neglect to urge the objection is excused because of extraordinary 

circumstances.” 5 U.S.C. § 7123(c); see also Equal Emp’t Opportunity Comm’n v. FLRA, 

476 U.S. 19, 23 (1986); accord NTEU, 754 F.3d at 1040 (“[w]e have enforced [S]ection 

7123(c) strictly”); Nat’l Treasury Emps. Union v. FLRA, 414 F.3d 50, 59 n.5 (D.C. Cir. 

2005).

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ARGUMENT

I. The Court does not have jurisdiction to review the Authority’s Decision 

because it does not involve a ULP.

This Court does not have jurisdiction over this case in light of the clear 

statutory bar to judicial review of Authority decisions concerning arbitration awards 

that do not involve ULPs. 5 U.S.C. § 7123(a). Congress may limit or foreclose review 

of agency decisions as it sees fit. See, e.g., City of Arlington, Tex. v. Fed. Commc’n Comm’n, 

569 U.S. 290, 297 (2013); Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). With 

respect to § 7123(a), this Court has concluded “that Congress required that a statutory 

[ULP] actually be implicated to some extent in the Authority’s order” before this 

Court may exercise jurisdiction over an Authority decision concerning an arbitration 

award. OEA, 824 F.2d at 66; see also Griffith, 842 F.2d at 490 (noting that § 7123(a) of 

the Statute expresses an “unusually clear congressional intent” to “foreclose review” 

of Authority decisions in arbitration cases).

The legislative history of § 7123(a) underscores Congress’s intent to restrict 

appellate scrutiny of Authority decisions involving arbitration awards. The 

Conference Report explains: 

[T]here will be no judicial review of the Authority’s action on those 

arbitrators[’] awards in grievance cases which are appealable to the 

Authority. The Authority will only be authorized to review the award of 

the arbitrator on very narrow grounds similar to the scope of judicial 

review of an arbitrator’s award in the private sector. In light of the 

limited nature of the Authority’s review, the conferees determined it 

would be inappropriate for there to be subsequent review by the court of 

appeals in such matters. 

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H.R. REP. NO. 95-1717, at 153 (1978), reprinted in Subcomm. on Postal Personnel and 

Modernization of the Comm. on Post Office and Civil Serv., 96th Cong., 1st Sess., 

Legislative History of the Fed. Serv. Labor-Mgmt. Relations Statute, Title VII of the Civil Serv. 

Reform Act of 1978, at 821 (1978) (available at: https://go.usa.gov/xPfNk). The 

Conference Report states that once an arbitrator’s award becomes “final,” it is “not 

subject to further review by any . . . authority or administrative body” besides the 

Authority. Id. at 826.

Thus, the plain language of § 7123(a) bars judicial review of Authority decisions 

on exceptions to arbitrators’ awards, except where the Authority’s order “involves an 

unfair labor practice.” ACT, 507 F.3d at 699; see also OEA, 824 F.2d at 70-71. 

Accordingly, this Court lacks jurisdiction over petitions that seek review of Authority 

decisions resolving exceptions to arbitration awards where the Authority neither 

discusses nor evaluates a statutory ULP. See, e.g., U.S. Dep’t of Homeland Sec. v. FLRA, 

784 F.3d 821, 823 (D.C. Cir. 2015); Broad. Bd. of Governors Office of Cuba Broad., 752 

F.3d at 457; Patent Office Prof. Ass’n v. FLRA, 180 Fed. Appx. 176 (D.C. Cir. 2006); 

U.S. Dep’t of Justice v. FLRA, 981 F.2d 1339, 1342 (D.C. Cir. 1993); cf. NWSEO., 966 

F.3d at 879-80. 

The Authority’s decision does not “involve” a ULP unless it “include[s] some 

sort of substantive evaluation of a statutory [ULP].” ACT, 507 F.3d at 699 (internal 

quotation marks omitted). “A mere ‘passing reference’ to a [ULP in an Authority 

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decision] will not suffice,” to create federal court jurisdiction. AFGE, 453 F.3d at 

503. Nor will the fact that a ULP charge existed as some point in history of the 

parties’ dispute. ACT, 507 F.3d at 699. 

The Union argues, frivolously, that the Authority intentionally avoided 

discussing a ULP to escape judicial review. (Pet’r Br. 22.) The Authority, however, 

did not discuss a ULP because the parties—including the Union—framed the issues 

before the Authority and the Arbitrator as contractual—not ULP—issues. (PA 3-5; 

155; see also 5 C.F.R. § 2429.5 (stating that the Authority will only address arguments 

actually raised and adequately supported by the parties).) The issues before the 

Arbitrator in this case were purely contractual: whether the Agency violated the 

parties Master Agreement by using augmentation to reassign some non-custody staff 

to vacant custody positions. (PA 3-5.) So too, the Union’s opposition to the 

Agency’s exceptions to the Award contested only the proper interpretation of the 

Master Agreement. (PA 144-59.) Like the Arbitrator in his Award, and the parties in 

their exceptions, the Authority’s Decision did not discuss substantive law governing 

ULPs. (PA 201-05.) 

OEA addressed an identical situation. OEA, 824 F.2d at 66. In OEA, the 

Court considered two consolidated cases. Id. at 69-71. In the first, the union filed a 

grievance alleging that the agency had violated the contract by refusing to negotiate 

over changes to overtime practices. Id. at 68. The arbitrator—citing only the parties’ 

contract—ordered the agency to bargain over the changes, and awarded backpay. Id. 

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The Authority upheld the arbitrator’s bargaining order but set aside the backpay 

award. Id. at 68-69. The union petitioned for review with this Court, claiming 

jurisdiction existed “because the underlying agency conduct could have been 

characterized as a statutory [ULP].” Id.

This Court rejected that argument. “Although the underlying conduct was 

indeed capable of characterization as a statutory [ULP], particularly by virtue of the fact 

that the agreement tracks the [Statute], it is clear beyond cavil that it was not so 

characterized by any party, the arbitrator, or the Authority.” Id. at 69 (emphasis in 

original). This is exactly the scenario the Union’s Petition today presents to the Court, 

which thus lacks jurisdiction under § 7123(a). 5

This Court has applied OEA’s rationale in subsequent cases. “If the aggrieved 

party choses to go the grievance procedure route, but characterized its claim as a 

statutory [ULP], judicial review certainly would be available.” U.S. Dep’t of Interior v. 

FLRA, 26 F.3d 179, 183 (D.C. Cir. 1994) (“Interior”). “However, if the aggrieved 

party characterized its claim as a violation of the collective bargaining agreement, 

 5 The Union’s Petition is easily distinguished from the second case the Court 

considered in OEA. There, the Authority determined that a grievance was barred 

because it involved the same issues that the union has previously filed as a ULP with 

the Authority’s General Counsel. Id. at 70-71. To make that determination, the 

Authority was required to review the prior ULP charge, and its decision ultimately 

hinged on its interpretation of ULP law. Id. Thus, because Authority’s decision 

contained a “substantive evaluation of a statutory [ULP],” it was reviewable under 

§ 7123(a)(1). Id. at 71. Here, there are no such prior proceedings on the issues raised 

by the Union’s grievance, and no such substantive evaluation of a statutory ULP.

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judicial review could be had only if the claim ‘involved’ a [ULP].” Id. (internal 

alterations omitted). 

In Interior, for example, the agency made jurisdictional arguments based on 

passing references in the union’s brief, and a single sentence in the Authority’s 

decision, suggesting that under different circumstances the case might be brought as a 

ULP. Id. at 184. The Court, however, found it lacked jurisdiction because it was 

“clear that a [ULP] was neither ‘an explicit ground for,’ nor ‘necessarily implicated by, 

the Authority’s [d]ecision,’” and denied the petition. Id. at 184-85. This case compels 

the same result.

That conclusion is not altered by the Union’s tortured attempt to squeeze this 

case into this Court’s jurisdiction by claiming that the case involves “statutory 

bargaining obligations” and arguing at length about how the Agency’s policy changed 

the conditions of employment for its employees. (Pet’r Br. 13-18.) If the Union 

believed that to be the case, it should have raised those issues with the Arbitrator and 

Authority. But it did not do so. Only now, when it needs a basis for jurisdiction for 

its Petition, has the Union reversed course and argued for the first time that the 

Agency committed a ULP when it refused to negotiate over use of augmentation. 

(Compare Pet’r Br. 14-18, with PA 13-31 (Award), PA 144-59 (Local 3690 Opposition 

to Agency’s Exceptions).) By failing to raise those objections before the Authority, 

the Union has waived them and cannot now rely on them to assert jurisdiction. 5 

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U.S.C. § 7123(c) (“No objection that has not been urged before the Authority, or its 

designee, shall be considered by the court. . . .”).

Similarly unavailing is the Union’s attempt to invoke this Court’s jurisdiction by 

relying on a single sentence in a footnote in the Agency’s exceptions to the 

Arbitrator’s Award that “[t]he current case is clearly a ULP brought through an 

Arbitration.” (Pet’r Br. 15 (citing PA 50).) The Agency made that claim in the midst 

of an attempt to persuade the Authority to apply the “covered-by” doctrine, which is 

a defense in ULP proceedings, “as a defense to a contractual duty to bargain.” (PA 51 

(emphasis added).) Under the covered-by doctrine, “[i]f a union and an employer in a 

collective-bargaining relationship reach an agreement on a subject during contract 

negotiations, neither side has a duty to bargain any further over that subject once the 

parties execute a collective bargaining agreement.” BOP II, 875 F.3d at 669. Agencies 

use this doctrine as a defense to claims that they committed a ULP by failing to 

negotiate with a union concerning a subject by arguing that the subject is “coveredby” a fully negotiated term in the agreement. See, e.g., id. 

In attempting to rely on the Agency’s footnote to secure jurisdiction (Pet’r Br. 

15), the Union does not mention the arguments it made to the Authority that 

emphasized the contractual—not statutory—nature of the dispute. (PA 155.) The 

Union asserted that its claim was a “Back Pay Act grievance” in which the Arbitrator 

“found that the Agency committed an unjustified and/or unwarranted personnel 

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action.” (Id.) The Union asserted that the covered-by defense could not be asserted 

in connection with such contractual violations. (Id.) 

The Union’s tactical decision to contest, before the Authority, the Agency’s 

claims that the matter involved a ULP was one it was free to make, but the decision 

has the consequence of depriving this Court of jurisdiction. First, the Union’s 

argument highlights the fact that the Union never presented its claim before the 

Authority as a ULP and fought any attempt to characterize it as such. Second, the 

Authority agreed with the Union’s position that the covered-by doctrine was 

inapplicable to this case (PA 202), and the Union is thus precluded from reversing 

that position in the current case. See Zedner v. United States, 547 U.S. 489, 504 (2006) 

(“Where a party assumes a certain position in a legal proceeding, and succeeds in 

maintaining that position, he may not thereafter, simply because his interests have 

changed, assume a contrary position.” (quoting Davis v. Wakelee, 156 U.S. 680, 689 

(1895) (alterations omitted))). 

Third, however the Agency may have characterized the case, no Member of the 

Authority, not even the dissenting Member, referred to or analyzed any statutory 

ULP. If a “mere ‘passing reference’ to a [ULP in an Authority decision] will not 

suffice,” to create federal court jurisdiction, AFGE, 453 F.3d at 503, then a petition to 

review a decision with no reference to a ULP surely lacks such jurisdiction. 

It is of no moment that the Union might have been more successful from the 

start if it had framed its claims as ULPs (though that too is unlikely given the Court’s 

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holdings in BOP I and BOP II). OEA, 824 F.2d at 68-69. The Union did not frame 

its claims as ULPs, which is demonstrated by the Union’s own words, the Award, and 

the Authority’s Decision. The Union’s eleventh-hour attempt to change course in 

order to manufacture federal court jurisdiction where there clearly is none must 

therefore fail.

A. The Union cannot create jurisdiction with this Court by claiming 

that the Agency committed a ULP by repudiating an MOU, 

because the Union never raised that objection until it filed its brief 

with this Court.

The Union cannot create jurisdiction by raising a wholly new argument on 

appeal: namely that the Agency committed a ULP when it repudiated the local MOU. 

(Pet’r Br. 13, 19-24.)

Again, the Statute precludes the Court from considering objections not raised 

before the Authority. 5 U.S.C. § 7123(c); see also U.S. Dep’t of Air Force v. FLRA, 680 

F.3d 826, 830 (D.C. Cir. 2012) (holding that strict enforcement § 7123(c) ensures that 

the Authority’s expertise is brought to bear on each party’s arguments and promotes 

both “agency autonomy and judicial efficiency.”). So too, the Authority’s regulations 

provide that parties may not raise arguments or request remedies that could have 

been, but were not, presented to the arbitrator. 5 C.F.R. § 2425.4(c). 

The Union did not argue to either the Arbitrator or Authority that the Agency 

repudiated the MOU. (Compare Pet’r Br. 13-19 with PA 1-36 (Award discussing only 

contractual claims); see also PA 144-59 (the Union Opposition to the Agency’s 

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Exceptions that did not argue that the Agency repudiated the parties’ MOU).) As it 

failed to raise this claim before either the Arbitrator or Authority, the Union waived 

any arguments it may have had concerning this alleged ULP. 5 U.S.C. § 7123(c). The 

Court should therefore reject the Union’s attempt to generate jurisdiction based on a 

claim it abandoned long before it appeared before this Court.

This Court should also reject the Union’s attempt to use Undersea Warfare to 

belatedly reframe the contractual dispute heard by the Arbitrator and Authority as a 

ULP. (Pet’r Br. 20-22.) In Undersea Warfare, this Court found that it had jurisdiction 

to review an Authority decision requiring an agency to bargain over providing bottled 

water because the decision necessarily implicated a statutory ULP. 665 F.3d at 1343. 

That was because the decision “could not possibly have been upheld based on the 

contract because the contract provided no ground for the Authority’s decision.” Id. at 

1345. Specifically, the Authority 1) identified no provision of the collective bargaining 

agreement supporting its decision, and in finding a duty to bargain, 2) relied on two of 

its prior cases finding that agencies had a statutory duty to negotiate over the removal 

of water coolers; and 3) required the agency to bargain with an employee organization 

with which the agency had no collective bargaining agreement. Id. at 1345-46.

The facts of this case are markedly different. The Authority explicitly based the 

Decision on the language of a specific provision of the Master Agreement: Article 18. 

(PA 202-03.) Nor is there any dispute that the Union and Agency are parties to the 

Master Agreement. And, in rendering the Decision, the Authority did not rely on 

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precedent concerning a statutory duty to bargain. Instead it relied on precedent, 

including two of this Court’s cases, finding that Article 18 of the Master Agreement 

was unambiguous. (PA 202, n.12 (this Court “has twice examined Article 18, as was 

contained in the parties’ agreement executed in 1998, and ruled that it “covers and 

preempts challenges to all specific outcomes of the assignment process.” (citing BOP 

I, 654 F.3d at 96; BOP II, 875 F.3d at 670)).) While those previous disputes (BOP I

and BOP II) may have involved ULPs, the Authority considered those cases only to 

the extent that they shed light on the meaning of Article 18. (PA 202-03.) 

Nor does the Authority’s reference to BOP I and II show that the Authority’s 

Decision “found that the covered-by doctrine permitted the Agency to repudiate the 

MOU.” (Pet’r Br. 20.) In fact, the Authority made the opposite point. “Although the 

prior cases [BOP I and BOP II] were decided under the ‘covered-by’ principle, neither the 

Authority nor [this Court] has found management’s reassignment authority under 

Article 18 to be ambiguous.” (PA 202-03 (emphasis added).) Again, the Authority 

relied on those cases to underscore that Article 18 was a clear contractual term. (PA 

202-03.) The Authority then applied precedent that past practice cannot alter a clear 

contractual term. The quality and nature of the Authority’s reliance on BOP I and 

BOP II thus distinguishes this case from Undersea Warfare.

If anything, BOP I and BOP II demonstrate that there is a path to judicial 

review when disputes involve both contractual and statutory claims, and that the path 

was not followed here. That conclusion is buttressed by this Court’s recent decision 

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in National Weather Service Employees Organization v. FLRA, which makes clear that the 

Union could have brought a contractual and a ULP claim arising from the same set of 

facts. 966 F.3d 875, 879 (2020). If the Authority evaluated exceptions related to both 

claims, then the whole of the Authority’s decision would potentially be subject to 

judicial review. Id. By contrast, the Union here brought only contractual claims at 

arbitration and opposed the Agency’s exceptions based on the Union’s interpretation 

of the Master Agreement—not any statutory ULP ground. (PA 13-36.) 

The Authority’s Decision neither explicitly nor implicitly implicated a ULP. 

AFGE, 453 F.3d at 503. The issues presented by the Union and addressed by the 

Arbitrator and Authority were purely contractual. (PA 13-36, 201-05.) The Decision 

did “not contain a substantive discussion of a [ULP] claim.” ACT, 507 F.3d at 700. 

There is in this case “no risk the Authority will leave the path of the law of ULPs and 

yet escape the review that would bring it back to the straight and narrow.” Id.

(quoting AFGE, 453 F.3d at 505). This Court should therefore decline the Union’s 

invitation to rewrite the history of this case and instead hold that it lacks jurisdiction 

under § 7123(a). 

B. Language in the Decision concerning the Steelworkers trilogy did 

not impact substantive law concerning ULPs.

The Union cannot rescue the Petition from dismissal with the false claim that 

this case affects the law of ULPs because the Authority allegedly repudiated the 

Steelworkers trilogy in its Decision. (Pet’r Br. 23-24.) That is so for two reasons.

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First, the Union grossly mischaracterizes the Authority’s discussion of 

Steelworkers. (Pet’r Br. 24-25.) The Authority did not hold that Steelworkers was 

inapplicable to federal-labor-management relations or that the Authority “has the sole 

discretion to inset its opinion in place of the Arbitrator’s.” (Pet’r Br. 25.) The 

Decision explicitly recognized that the Steelworkers trilogy provides “valuable

guidance” concerning the review of arbitration awards. (PA 205.) The Authority 

merely found that the Steelworkers cases do not require the Authority to give “blind 

deference” to arbitrators or “ignore erroneous arbitral awards that run counter to the 

plain language, or judicial interpretations, of contractual provisions.” (PA 205.) The 

Authority’s observation is not novel; federal courts adjudicating private-sector cases 

have come to the same conclusion. See, e.g., Penn. Power Co. v. Local Union No. 272, Int’l 

Broth. of Elec. Workers, 276 F.3d 174, 178-80 (3d Cir. 2001) (vacating arbitrator’s award 

because it wrote into the parties’ agreement a requirement of parity between the 

benefits offered to supervisory and union employees that had no basis in the parties’ 

agreement); Int’l Union, United Auto Workers v. Marrowbone Dev. Co., 232 F.3d 383, 389 

(4th Cir. 2000) (vacating an arbitration award where the arbitrator failed to consider 

the binding effect of a prior arbitration and because “his award also contravened the 

Agreement’s ‘plain language.’”). The Union’s claim that the Authority’s Decision 

conflicts with this Court’s decision in NWSEO (Pet’r Br. 24-25), is thus untrue.

Second, the Union fails to explain how the Authority’s commentary on the 

Steelworkers trilogy—which concern the review of arbitration awards—affects 

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substantive law governing ULP cases. (See Pet’r Br. 23.) The Award that the 

Authority reviewed did not adjudicate a statutory ULP. (PA 1-5.) The Union 

opposed the Agency’s exceptions based on the Union’s interpretation of the parties’ 

Master Agreement. (PA 144-59.) The Authority then set aside the arbitration award 

because it failed to draw its essence from the parties’ agreement. (PA 201.) 

If the Authority’s discussion of the rules applicable to review of arbitration 

awards “involves” substantive ULP law, then there would be no arbitration award that 

could fall outside this Court’s jurisdiction. Accepting the Union’s argument here 

would undermine the clear Congressional bar on judicial review of arbitration awards. 

Griffith v. FLRA, 842 F.2d 487, 490 (D.C. Cir. 1988). It would also require the Court 

to disregard the text of the Statute and over forty years of precedent. As the Union 

offers no coherent reason to do so, the Court should dismiss the Petition.

C. The Court does not have jurisdiction under the narrow exception 

created by Leedom v. Kyne.

The Union’s Leedom claims fail, because not only has the Union asserted those 

claims in the wrong court, it also has not met the “nearly insurmountable” burden of 

establishing entitlement to Leedom jurisdiction. U.S. Dep’t of Justice v. FLRA, 981 F.2d 

1339, 1343 (D.C. Cir. 1993). 

Leedom jurisdiction may only be invoked in federal district court. AFGE, 453 

F.3d at 506. Futher, to invoke Leedom jurisdiction, the Union must demonstrate: “(i) 

the statutory preclusion of review is implied rather than express . . . (ii) there is no 

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alternative procedure for review of the statutory claim; and (iii) the agency plainly acts 

in excess of its delegated powers and contrary to a specific prohibition in the statute 

that is clear and mandatory.” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 

449 (D.C. Cir. 2009) (internal citations and quotations omitted) (emphasis added). 

The Union’s Petition does not to meet those requirements. 

First, by raising a Leedom claim in this Court, the Union ignores two of this 

Court’s decisions that explicitly hold that Leedom claims against the Authority may 

only be brought in federal district court. In each of those cases, this Court rejected 

petitioners’ attempts to side step § 7123(a)’s bar to judicial review because “[t]he 

Leedom exception . . . is premised on the original federal subject matter jurisdiction of 

the district courts” and thus cannot be first asserted in a Court of Appeals. AFGE, 

453 F.3d at 506 (quoting U.S. Dep’t of the Treasury, U.S. Customs Serv. v. FLRA, 43 F.3d 

682, 688 n. 6 (D.C. Cir. 1994)). 

Second, even if the Union had made a claim for Leedom jurisdiction in the 

proper court, the Union still could not meet the criteria necessary to assert Leedom

jurisdiction. “The Leedom v. Kyne exception applies . . . only where the statutory 

preclusion of review is implied rather than express.” Nyunt, 589 F.3d at 449 (citing 

Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 44 (1991)); 

McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial 

Conference of the U.S., 264 F.3d 52, 63-64 (D.C. Cir. 2001)). In this case, § 7123 of the 

Statute expressly excludes orders “under [§] 7122 of this title (involving an award by 

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an arbitrator)” from the scope of judicial review. 5 U.S.C. § 7123(a). By contrast, 

Leedom “involved preclusion that had been inferred from the National Labor Relations 

Act, and is therefore merely an application of the familiar requirement that there be 

‘clear and convincing evidence’ of legislative intent to preclude review.” McBryde, 264 

F.3d at 63 (emphasis in original) (quoting MCorp., 502 U.S. at 44). As “the specific 

language of § 7123, the structure of the [Statute’s] arbitration and review provisions, 

and the relevant legislative history all provide clear and convincing evidence that 

Congress intended to cut off judicial review of FLRA decisions regarding arbitration 

awards of the sort involved in this case,” Leedom jurisdiction is unavailable in this case. 

Griffith, 842 F.2d at 492.

Finally, the Union’s attempt to invoke Leedom jurisdiction fails because the 

doctrine “is not one to ‘review’ . . . a decision [an agency] made within its 

jurisdiction.” 358 U.S. at 188. Rather, it applies only when an agency violates a “clear 

and mandatory” statutory provision in a manner that is “so extreme that one may 

view it as jurisdictional or nearly so.” Nyunt, 589 F.3d at 449 (quoting Griffith, 842 

F.2d at 493). 

The Petition, however, is plainly one to review a decision of the Authority 

made within its jurisdiction to take “such actions” as it “consider[s] necessary” in 

resolving exceptions to arbitration awards under 5 U.S.C. § 7122(a). That includes 

setting aside arbitration wards on “grounds similar to those applied by Federal courts 

in private sector labor-management relations.” 5 U.S.C. § 7122(a)(2). The Authority’s 

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Decision followed its own regulations in setting aside the Award, because the Award 

failed “to draw its essence from the parties’ collective bargaining agreement.” 5 

C.F.R. § 2425.6. The Union thus cannot establish that the Authority disregarded a 

“clear and mandatory” statutory provision. The Authority’s application of its own 

standard of review for arbitration awards does not amount to the disregard of “a 

specific and unambiguous statutory directive.” Nat’l Air Traffic Controllers Ass’n AFLCIO v. FSIP, 437 F.3d 1256, 1264 (D.C. Cir. 2006).

That conclusion is not altered by the Union’s argument that the Decision failed 

to adhere to Steelworkers cases. (Pet’r Br. 25-39.) As described above and below, the 

Authority did not in the Decision “announce[] it would no longer follow Steelworkers.” 

(Pet’r Br. 25.) Indeed, the Authority acknowledged that those cases guide its review 

of arbitration awards. (PA 205.) It merely stated that, to the extent that the 

Authority’s past precedent could be read to require “blind adherence” to arbitrator’s 

awards, the Authority would no longer follow that precedent. (PA 205.) 

The Statute requires only that the Authority review arbitration decisions on 

grounds “similar to those applied by Federal courts in private sector labormanagement relations.” 5 U.S.C. § 7122(a). The Authority did so in this case when it 

determined that the Arbitrator’s Award failed to draw its essence from Article 18, the 

meaning of which this Court has twice determined. (PA 204.) By failing to heed this 

Court’s interpretation of the Master Agreement and instead relying solely on “past 

practice” that had supposedly become an “unwritten contractual right,” the Arbitrator 

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did not “arguably construe” the meaning of the contract. NWSEO, 966 F.3d at 881. 

Thus, the Authority correctly set aside the Award for failing to draw its essence from 

the parties’ Master Agreement. (PA 205.) Contrary to the Union’s assertions (Pet’r 

Br. 31), that conclusion is buttressed by decisions in other Circuits vacating arbitration 

awards where arbitrators failed to arguably construe the parties’ contracts. See, e.g., 

Marrowbone Dev., 232 F.3d at 389; Penn. Power, 276 F.3d at 178-80. The Union cannot, 

therefore, establish that the Authority violated a clear and mandatory provision of the 

Statute, much less that it committed an error “so extreme that one may view it as 

jurisdictional or nearly so.” Nyunt, 589 F.3d at 449. 

D. The Union’s attempt to assert jurisdiction under Customs is 

unavailing because this case does not involve law outside of the 

Authority’s area of responsibility.

The exceptional circumstances that gave rise to this Court’s jurisdiction in 

Customs are not present in this case. Customs involved this Court’s review of an 

Authority decision that hinged on the Authority’s interpretation of a law related to 

import tariffs, not working conditions. 43 F.3d at 689. Id. This Court found that it 

had jurisdiction in the case because a “‘grievance’ predicated on a claim of violation of 

a law that is not directed toward employee working conditions is outside both the 

arbitrator’s and the [Authority]’s jurisdiction.” Id. (emphasis in original).

Here, the Authority’s Decision involved only the interpretation of the parties’ 

contract and the rules applicable to labor-management arbitration in the federal 

sector. (PA 201-05.) Neither the Authority’s Decision nor the Award interpreted any 

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law unrelated to working conditions. (Compare PA 13-36, 201-05, with Customs, 43 F.3d 

at 689-91.) Instead, the question the Authority and Arbitrator decided was whether 

the Agency had an obligation to bargain about changes to employees’ work 

assignments made in accordance with the parties’ Master Agreement. (PA 201-03.) 

Resolving that question is at the heart of the Authority’s function and expertise. 5 

U.S.C. §§ 7101, 7122. The narrow exception that allowed for jurisdiction in Customs

thus does not apply in this case.

II. If the Court reaches the merits, it should deny the Petition because the 

Authority’s Decision is neither arbitrary nor capricious.

A. The Authority set aside the Award because it was in direct conflict 

with this Court’s precedent interpreting the parties’ Master 

Agreement.

If it had jurisdiction, the Court would review the Authority’s Decision to 

determine it is “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.” BOP I, 654 F.3d at 94. Even if this Court had jurisdiction (and 

it does not), this Court should find that the Authority’s Decision was not arbitrary or 

capricious. 

In BOP II, the Court criticized a series of Authority decisions that—after BOP 

I—upheld arbitration awards requiring the Agency to bargain anew over staffing 

assignments and roster creation, because those awards failed to give full effect to the 

plain language of Article 18. (See PA 204; see also BOP II, 875 F.3d at 673.) The 

Authority attempted to correct that mistake in this case by following this Court’s 

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interpretation of Article 18. The Authority’s adherence to this Court’s interpretation 

of Article 18 can hardly be considered arbitrary or capricious—indeed, it is the 

Union’s attempt to have this Court ignore BOP I and BOP II’s clear interpretation of 

the Master Agreement that would result in arbitrary and capricious decision-making.

The Arbitrator’s reliance on an “unwritten contractual right,” created out of 

whole cloth from the Agency’s alleged past practice, directly contradicted the parties’ 

written agreement embodied in Article 18 and compelled the Authority to set aside 

the Award. The Authority may find arbitration awards deficient “on other grounds 

similar to those applied by Federal courts in private sector labor-management 

relations.” 5 U.S.C. § 7122(a)(2). Thus, the Authority will set aside an arbitration 

ward if it “[f]ails to draw its essence from the parties . . . agreement.” 5 C.F.R. 

§ 2425.6(b)(2)(i). An award fails to draw its essence from a CBA when “the award: (1) 

cannot in any rational way be derived from the agreement; (2) is so unfounded in 

reason and fact and so unconnected with the wording and purpose of the agreement 

as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a 

plausible interpretation of the agreement; or (4) evidences a manifest disregard of the 

agreement.” U.S. Dep’t of the Treasury, Internal Revenue Serv., 70 FLRA 783, 785 n.31 

(2018) (Member DuBester dissenting) (citing U.S. Dep’t of Labor, 34 FLRA 573, 575 

(1990)). “[A]rbitrators may consider parties’ past practices when interpreting an 

ambiguous contract provision, but they may not rely on past practices to modify the 

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terms of a contract.” U.S. Dep’t of the Navy Puget Sound Naval Shipyard, 70 FLRA 754, 

755 (2018) (Member DuBester dissenting) (emphasis in original).

The Arbitrator found that the Agency had an obligation to bargain because he 

found that the Agency’s past practice had created a new, unwritten, contractual term. 

(PA 22-23.) The Arbitrator determined that the Agency could not deviate from this 

“unwritten contractual right” without bargaining. Id. The Arbitrator’s discovery of 

this “unwritten contractual right” was in direct conflict with the Master Agreement, 

specifically Article 18, Section o, that permits the Agency to reassign employees, 

without notice, to different posts in the same shift. (PA 141.) The Authority could 

not uphold the Award because it had no basis in the parties’ written agreement, but 

instead flouted the plain terms of the Master Agreement. (PA 201-03). That is, the 

Arbitrator added a new contract term that was in direct conflict with the parties’ 

written agreement. (Id.) The Authority’s Decision granting the Agency’s exceptions 

was thus neither arbitrary nor capricious—instead, it was compelled both by the 

Authority’s and this Court’s precedent.

The Union fails in its attempt to distinguish this case from BOP I and BOP II. 

(Pet’s Br. 40-42.) This Court’s strong language in BOP II dictates that no contractual 

bargaining obligation may arise from the specific outcomes of staffing assignments 

made in accordance with Article 18. 875 F.3d at 674-76. The Authority thus acted 

reasonably when it enforced the plain language of Article 18, and set aside an Award 

premised on the Arbitrator’s finding of a conflicting, unwritten contractual term.

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The Union argues that the Authority abused its discretion when it set aside the 

Award because in doing so it upheld a ULP. (Pet’r Br. 42.) The Union, however, did 

not argue that this case involved a ULP either in proceedings before the Arbitrator 

(PA 1-36) or the Authority (PA 155-56). The Authority considered only the issues 

and arguments presented to it, as it was required by its regulations to do. See 5 C.F.R. 

§ 2429.5. Thus, the Authority’s Decision to set aside the Award because it did not 

draw its essence from the parties’ agreement did not involve a statutory ULP. 

B. The Authority’s application of the Steelworkers trilogy to this case 

did not represent a break with the Authority’s past precedent.

The Union incorrectly argues that the Authority’s Decision represents an 

unjustified departure from its past precedent. In its Decision, the Authority clarified 

that the Steelworkers trilogy does not require the Authority to “ignore erroneous arbitral 

awards that run counter to the plain language, or judicial interpretations, of 

contractual provisions.” (PA 204-05.) The Authority’s Decision did not repudiate 

past precedent requiring a high level of deference to arbitrators’ findings. Instead, the 

Authority affirmed that Steelworkers will continue to guide its decisions. (PA 205.)

To the limited extent that the Decision questions how much deference the 

Steelworkers trilogy requires the Authority to afford to arbitrators’ findings, those 

questions were justified by the facts of this case. (PA 204.) The Arbitrator did not 

resolve an isolated or novel dispute over the parties’ agreement. (Id.) Instead, the 

Arbitrator resolved a dispute over a contractual provision (Article 18) which has been 

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interpreted numerous times by courts and the Authority itself, including two decisions 

from this Court that explicitly state that Article 18 represented the completion of the 

parties’ bargaining over the process (and impact and implementation) of the Agency’s 

staffing decisions. BOP I, 654 F.3d at 95. 

It was in this context that the Authority concluded that even though the 

Steelworkers trilogy requires reviewing bodies to afford arbitrators a high level of 

deference, that does not mean that the Authority must approve an arbitration award 

that invents a new contractual term from whole cloth and is “‘directly at odds with 

th[e] court’s [interpretations of Article 18] in BOP I.” (PA 204.) That conclusion is 

similar to the conclusion reached by courts in private sector proceedings. See Citgo 

Asphalt Refining Co. v. Paper, Allied-Indus., Chem. & Energy Workers Int’l Union Local No. 

2-991, 385 F.3d 809, 816-17 (3d Cir. 2004) (“Although our review of an arbitration 

award is ‘highly deferential[,]’ we do not ‘simply . . . rubber stamp [arbitrators’] 

interpretations and decisions.’”); see also Marrowbone Dev., 232 F.3d at 389; Penn. Power, 

276 F.3d at 178-80. 

CONCLUSION

For the foregoing reasons, the Authority respectfully requests that the Court 

dismiss the Petition for Review for lack of jurisdiction, or in the alternative deny it in 

its entirety. 

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Respectfully submitted,

/s/Noah Peters

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

SARAH C. BLACKADAR

Attorney

Federal Labor Relations Authority

1400 K Street, NW

Washington, DC 20424

(202) 218-7908

February 16, 2020

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FED. R. APP. P. RULE 32(a) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(B)(i), I hereby certify that this brief is 

double-spaced (except for extended quotations, headings, and footnotes) and is 

proportionally spaced, using Garamond font, 14-point type. Based on a word count 

of my word processing system, this brief contains fewer than 13,000 words. It 

contains 10,675 words excluding exempt material. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of February, 2021, I electronically filed the 

foregoing with the Clerk of the Court for the U.S. Court of Appeals for the District of 

Columbia Circuit by using the CM/ECF system. I also certify that the foregoing 

document is being served on counsel of record and that service will be accomplished 

by the CM/ECF system. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

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ADDENDUM

Relevant Statutes and Regulations

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TABLE OF CONTENTS

Authority Page

5 U.S.C. § 7101...........................................................................................................................3

5 U.S.C. § 7122...........................................................................................................................3

5 U.S.C. § 7123(a), (c) ...............................................................................................................4

5 C.F.R. § 2425.4(c)...................................................................................................................5

5 C.F.R. § 2425.6 .......................................................................................................................5

5 C.F.R. § 2429.5 .......................................................................................................................7

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5 U.S.C. § 7101

Findings and purpose

(a) The Congress finds that--

(1) experience in both private and public employment indicates that the 

statutory protection of the right of employees to organize, bargain collectively, 

and participate through labor organizations of their own choosing in decisions 

which affect them--

(A) safeguards the public interest,

(B) contributes to the effective conduct of public business, and

(C) facilitates and encourages the amicable settlements of disputes 

between employees and their employers involving conditions of 

employment; and

(2) the public interest demands the highest standards of employee performance 

and the continued development and implementation of modern and 

progressive work practices to facilitate and improve employee performance and 

the efficient accomplishment of the operations of the Government.

Therefore, labor organizations and collective bargaining in the civil service are in the 

public interest.

(b) It is the purpose of this chapter to prescribe certain rights and obligations of the 

employees of the Federal Government and to establish procedures which are designed 

to meet the special requirements and needs of the Government. The provisions of 

this chapter should be interpreted in a manner consistent with the requirement of an 

effective and efficient Government.

5 U.S.C. § 7122

Exceptions to arbitral awards

(a) Either party to arbitration under this chapter may file with the Authority an 

exception to any arbitrator's award pursuant to the arbitration (other than an award 

relating to a matter described in section 7121(f) of this title). If upon review the 

Authority finds that the award is deficient--

(1) because it is contrary to any law, rule, or regulation; or

(2) on other grounds similar to those applied by Federal courts in private sector 

labor-management relations;

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4

the Authority may take such action and make such recommendations concerning the 

award as it considers necessary, consistent with applicable laws, rules, or regulations.

(b) If no exception to an arbitrator's award is filed under subsection (a) of this section 

during the 30-day period beginning on the date the award is served on the party, the 

award shall be final and binding. An agency shall take the actions required by an 

arbitrator's final award. The award may include the payment of backpay (as provided 

in section 5596 of this title).

5 U.S.C. § 7123(a), (c) 

Judicial review; enforcement.

(a) Any person aggrieved by any final order of the Authority other than an order 

under--

section 7122 of this title (involving an award by an arbitrator), unless the order 

involves an unfair labor practice under section 7118 of this title, or 

section 7112 of this title (involving an appropriate unit determination), may, 

during the 60-day period beginning on the date on which the order was issued, 

institute an action for judicial review of the Authority's order in the United 

States court of appeals in the circuit in which the person resides or transacts 

business or in the United States Court of Appeals for the District of Columbia.

. . . . 

(c) Upon the filing of a petition under subsection (a) of this section for judicial review 

or under subsection (b) of this section for enforcement, the Authority shall file in the 

court the record in the proceedings, as provided in section 2112 of title 28. Upon the 

filing of the petition, the court shall cause notice thereof to be served to the parties 

involved, and thereupon shall have jurisdiction of the proceeding and of the question 

determined therein and may grant any temporary relief (including a temporary 

restraining order) it considers just and proper, and may make and enter a decree 

affirming and enforcing, modifying and enforcing as so modified, or setting aside in 

whole or in part the order of the Authority. The filing of a petition under subsection 

(a) or (b) of this section shall not operate as a stay of the Authority's order unless the 

court specifically orders the stay. Review of the Authority's order shall be on the 

record in accordance with section 706 of this title. No objection that has not been 

urged before the Authority, or its designee, shall be considered by the court, unless 

the failure or neglect to urge the objection is excused because of extraordinary 

circumstances. The findings of the Authority with respect to questions of fact, if 

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supported by substantial evidence on the record considered as a whole, shall be 

conclusive. If any person applies to the court for leave to adduce additional evidence 

and shows to the satisfaction of the court that the additional evidence is material and 

that there were reasonable grounds for the failure to adduce the evidence in the 

hearing before the Authority, or its designee, the court may order the additional 

evidence to be taken before the Authority, or its designee, and to be made a part of 

the record. The Authority may modify its findings as to the facts, or make new 

findings by reason of additional evidence so taken and filed. The Authority shall file 

its modified or new findings, which, with respect to questions of fact, if supported by 

substantial evidence on the record considered as a whole, shall be conclusive. The 

Authority shall file its recommendations, if any, for the modification or setting aside 

of its original order. Upon the filing of the record with the court, the jurisdiction of 

the court shall be exclusive and its judgment and decree shall be final, except that the 

judgment and decree shall be subject to review by the Supreme Court of the United 

States upon writ of certiorari or certification as provided in section 1254 of title 28.

5 C.F.R. § 2425.4(c)

Content and format of exceptions.

(c) What is prohibited. Consistent with 5 CFR 2429.5, an exception may not rely on 

any evidence, factual assertions, arguments (including affirmative defenses), requested 

remedies, or challenges to an awarded remedy that could have been, but were not, 

presented to the arbitrator.

5 C.F.R. § 2425.6

Grounds for review; potential dismissal or denial for failure to raise or support 

grounds.

(a) The Authority will review an arbitrator's award to which an exception has been 

filed to determine whether the award is deficient—

(1) Because it is contrary to any law, rule or regulation; or

(2) On other grounds similar to those applied by Federal courts in private 

sector labor-management relations.

(b) If a party argues that an award is deficient on private-sector grounds under 

paragraph (a)(2) of this section, then the excepting party must explain how, under 

standards set forth in the decisional law of the Authority or Federal courts:

(1) The arbitrator:

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(i) Exceeded his or her authority; or

(ii) Was biased; or

(iii) Denied the excepting party a fair hearing; or

(2) The award:

(i) Fails to draw its essence from the parties' collective bargaining 

agreement; or

(ii) Is based on a nonfact; or

(iii) Is incomplete, ambiguous, or contradictory as to make 

implementation of the award impossible; or

(iv) Is contrary to public policy; or

(v) Is deficient on the basis of a private-sector ground not listed in 

paragraphs (b)(1)(i) through (b)(2)(iv) of this section.

(c) If a party argues that the award is deficient on a private-sector ground raised 

under paragraph (b)(2)(v) of this section, the party must provide sufficient 

citation to legal authority that establishes the grounds upon which the party 

filed its exceptions.

(d) The Authority does not have jurisdiction over an award relating to:

(1) An action based on unacceptable performance covered under 5 U.S.C. 

4303;

(2) A removal, suspension for more than fourteen (14) days, reduction in grade, 

reduction in pay, or furlough of thirty (30) days or less covered under 5 U.S.C. 

7512; or

(3) Matters similar to those covered under 5 U.S.C. 4303 and 5 U.S.C. 

7512 which arise under other personnel systems.

(e) An exception may be subject to dismissal or denial if:

(1) The excepting party fails to raise and support a ground as required in 

paragraphs (a) through (c) of this section, or otherwise fails to demonstrate a 

legally recognized basis for setting aside the award; or

(2) The exception concerns an award described in paragraph (d) of this section.

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5 C.F.R. § 2429.5

Matters not previously presented; official notice.

The Authority will not consider any evidence, factual assertions, arguments (including 

affirmative defenses), requested remedies, or challenges to an awarded remedy that 

could have been, but were not, presented in the proceedings before the Regional 

Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority 

may, however, take official notice of such matters as would be proper.

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