830 Decisions of the Federal Labor Relations Authority 73 FLRA No. 163

73 FLRA No. 163

SPORT AIR TRAFFIC CONTROLLERS

ORGANIZATION

(Union)

and

UNITED STATES 

DEPARTMENT OF THE AIR FORCE

412 TEST WING

EDWARDS AIR FORCE BASE, CALIFORNIA

(Agency)

0-AR-5929

_____

DECISION

March 20, 2024

_____

Before the Authority: Susan Tsui Grundmann, Chairman,

and Colleen Duffy Kiko, Member

(Chairman Grundmann concurring)

I. Statement of the Case

Arbitrator Jonathan S. Monat issued an award 

finding a Union grievance was not arbitrable. The Union 

excepted, arguing the award is contrary to law, fails to 

draw its essence from the parties’ 1994 

collective-bargaining agreement (the 1994 CBA), and is 

incomplete, ambiguous, and contradictory, so as to make 

implementation of the award impossible. The Agency 

filed an opposition, in which it requests that we grant 

certain remedies. For the reasons explained below, we 

deny the Union’s exceptions and the Agency’s remedial 

request.

II. Background and Arbitrator’s Award

In December 2015, the Agency notified the 

Union that it wanted to renegotiate the parties’ 

then-current CBA, the 1994 CBA. The parties began 

bargaining over ground rules for those negotiations. 

However, in May 2016, the Agency filed an 

unfair-labor-practice (ULP) charge, and the Federal Labor 

Relations Authority’s (FLRA’s) General Counsel issued 

1 70 FLRA 554 (2018), recons. denied, 71 FLRA 25 (2019).

2 See SPORT Air Traffic Controllers Org., 71 FLRA 626, 626 

(2020) (Member DuBester dissenting).

3 See id.

4 See id.

5 See id.

an amended complaint, alleging the Union unlawfully 

refused to recognize the Agency’s designated bargaining 

representatives. In Sport Air Traffic Controllers 

Organization, an FLRA Administrative Law Judge found 

the Union acted unlawfully as alleged, and the Authority 

subsequently denied the Union’s exceptions to the Judge’s 

recommended decision.1

In the meantime, on February 22, 2017, the 

Agency emailed the Union, alleging that the Union waived 

its right to bargain, and stating that the Agency would 

unilaterally implement its last, best proposal as the new 

CBA on May 1, 2017.2 In response to that email, the 

Union filed a ULP charge in Case No. SF-CA-17-0305, 

alleging the Agency failed to bargain in good faith by 

notifying the Union of its intention to unilaterally 

implement.3 After the Agency implemented the new CBA 

(the 2017 CBA), the Union amended its charge in 

SF-CA-17-0305 to allege the Agency’s unilateral 

implementation of the 2017 CBA was unlawful.4 

However, the Union later withdrew the amended ULP 

charge.5

The Union also filed a grievance alleging the 

Agency violated the 1994 CBA by failing to comply with 

that CBA’s official-time provision.6 The grievance went 

to arbitration, where an arbitrator found the Agency did not 

violate the Federal Service Labor-Management Relations 

Statute (the Statute), Agency regulation, or the parties’ 

agreement by unilaterally implementing the 2017 CBA or 

by failing to schedule official time in accordance with the 

1994 CBA.7

The Union filed exceptions with the Authority 

and, in Sport Air Traffic Controllers Organization

(SATCO II), the Authority found that both the grievance 

and the previously filed charge in SF-CA-17-0305 

involved the same issue: “the unilateral [implementation] 

of [the 2017] CBA.”8 Because the Union filed the charge 

in SF-CA-17-0305 before filing the grievance, the 

Authority found § 7116(d) of the Statute barred the 

arbitrator from exercising jurisdiction over the grievance.9 

Therefore, the Authority vacated the arbitrator’s award.10

6 See id.

7 See id.

8

Id. at 628.

9 See id. (citing 5 U.S.C. § 7116(d)).

10 See id.
73 FLRA No. 163 Decisions of the Federal Labor Relations Authority 831

The Union filed two more ULP charges,11 and 

another grievance, challenging the Agency’s 

implementation of the 2017 CBA. The Union 

subsequently withdrew the two ULP charges and did not 

pursue the grievance to arbitration.

Then, in 2020, the Agency notified the Union that 

it planned to impose a new agreement (the 2020 CBA) to 

replace the 2017 CBA. The Union filed a new ULP charge 

in Case No. SF-CA-21-0002, alleging the 1994 CBA was 

still in effect and the Agency was refusing to comply with 

it.12 To resolve that charge, an FLRA Regional Director 

(the RD) and the Agency reached a settlement agreement, 

to which the Union was not a party.13 In the settlement 

agreement, the Agency agreed to: (1) rescind the 2020 

CBA; (2) restore the conditions of employment established 

by the 2017 CBA and arbitration awards interpreting that 

CBA; and (3) negotiate with the Union over a new CBA.14 

The Union appealed the settlement agreement to the 

FLRA’s Office of the General Counsel, arguing the 

1994 CBA was still in effect.15 The FLRA’s Acting 

General Counsel (Acting GC) denied the Union’s appeal.16

The Union also filed a ULP charge in Case No. 

SF-CA-21-0164. In that charge, the Union again argued 

the 1994 CBA was still in effect.17 The RD dismissed the 

charge,18 the Union appealed, and the Acting GC denied 

the appeal.19

After the Agency implemented the settlement 

agreement in SF-CA-21-0002, the Union filed a grievance 

alleging: “The document implemented . . . through the 

settlement agreement . . . is not a successor agreement 

between the parties and was never agreed to or executed 

by [the Union,] and its implementation constitutes a 

repudiation of the . . . 1994 CBA[,] which remains in full 

force and effect.”20 The grievance went to arbitration, 

where the Arbitrator framed the issue, in relevant part, as 

“[w]hether the issue raised in the . . . [g]rievance . . . is 

precluded from review in arbitration (non-arbitrable) due 

to being outside the scope of the [CBA], being untimely 

. . . , being previously filed [(§ 7116(d) of the Statute)], 

11 Case Nos. SF-CA-20-0265 & SF-CA-20-0273. We note that 

the parties did not provide copies of these charges or the other 

ULP charges and related FLRA documents discussed in this 

decision. However, “[t]he Authority has found it appropriate to 

take official notice of other FLRA proceedings.” NTEU, 

70 FLRA 100, 101 (2016). We do so here. 

12 SF-CA-21-0002 Charge at 3-4.

13 Opp’n, Tab 7, Notice of Unilateral Settlement.

14 Opp’n, Tab 7, Settlement Agreement at 1.

15 Opp’n, Tab 8 at 1.

16 Id. at 1-2.

17 SF-CA-21-0164 Charge at 3.

18 SF-CA-21-0164 Dismissal Letter (Apr. 14, 2021).

19 SF-CA-21-0164 Letter Denying Appeal (June 21, 2023).

20 Exceptions, Attach. 1, SATCO Arbitrability Br. at 4, SATCO 

Grievance Form at 1.

and/or being res judicata ([SATCO II]; . . . 

SF-CA-21-0002; and . . . SF-CA-21-0164).”21

In his award, the Arbitrator found the Union was 

denying the 2017 CBA’s legitimacy because the Union 

wanted to preserve an official-time provision that was in 

the 1994 CBA but not in the 2017 CBA.22 The Arbitrator 

stated that the Union filed “a string of ULPs in an attempt 

to achieve this objective,” but “[e]ach ULP was denied by 

[the] FLRA on the grounds that the ULPs were on the same 

subject as prior ULPs and grievances.”23 In this regard, 

the Arbitrator determined that, in SF-CA-21-0002, the RD 

found “the 2017 [CBA] ended the 1994 CBA”;24 the 

Acting GC “reaffirmed the 2017 [CBA]”; and, “[h]ence, 

the 2017 CBA is the valid agreement”25 and “the 

1994 CBA is not valid.”26 The Arbitrator concluded that 

the Union “apparently exhausted all its appeals to the 

FLRA on this matter,”27 that “this matter is res judicata,”28

and, consequently, that he “ha[d] no jurisdiction to hear 

this dispute.”29 Therefore, the Arbitrator found the 

grievance was not arbitrable.

On November 13, 2023, the Union filed 

exceptions to the award, and on December 18, 2023, the 

Agency filed an opposition.

III. Analysis and Conclusions

A. The award is not contrary to law.

The Union argues the award is contrary to law in 

several respects.30 When an exception involves an award’s 

consistency with law, the Authority reviews any question 

of law raised by the exception and the award de novo.31 In 

applying the standard of de novo review, the Authority 

assesses whether an arbitrator’s legal conclusions are 

consistent with the applicable standard of law.32 In making 

that assessment, the Authority defers to the arbitrator’s 

underlying factual findings unless the excepting party 

establishes that they are nonfacts.33

21 Award at 2.

22 Id. at 4.

23 Id.

24 Id.

25 Id.

26 Id.

27 Id.

28 Id. at 3.

29 Id. at 4.

30 Exceptions Form at 4-5.

31 U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Mendota, Cal., 

73 FLRA 788, 790 (2024).

32 Id.

33 Id.
832 Decisions of the Federal Labor Relations Authority 73 FLRA No. 163

First, the Union contends § 7121(b)(1)(C)(iii) of 

the Statute entitles the Union to binding arbitration to 

resolve its grievance.34 The Union argues that, contrary to 

the Arbitrator’s findings, the Agency’s 2023 

reimplementation of the 2017 CBA “has not been heard in 

any forum.”35 According to the Union, “[t]here . . . can be 

no reliance on” the 2017 CBA’s grievance procedures, 

which “puts the Union in an impossible situation moving 

forward and denies the Union of its rights,”36 contrary to 

the Authority’s decision in U.S. Department of the Air 

Force, 355th FSS/FSMC Davis-Monthan Air Force Base, 

Arizona (Davis-Monthan).37

Section 7121(b)(1)(C)(iii) of the Statute requires 

that negotiated grievance procedures “provide that any 

grievance not satisfactorily settled under 

[those procedures] . . . be subject to binding arbitration.”38 

The Union does not explain how the Arbitrator’s award 

does not constitute “binding arbitration” simply because 

the Arbitrator found the grievance non-arbitrable. In fact, 

as the Agency argues,39 § 7121(a)(1) of the Statute 

expressly provides that CBAs “shall provide procedures 

for the settlement of grievances, including questions of 

arbitrability.”40 The Union provides no basis for finding 

the Arbitrator’s determination of non-arbitrability 

conflicts with § 7121(b)(1)(C)(iii) of the Statute. 

Although the Union argues the Agency’s 2023 

reimplementation of the 2017 CBA “has not been heard in 

any forum,”41 that is not the case: It was the subject of the 

ULP charge, the settlement agreement, and the subsequent 

appeal to the Acting GC in SF-CA-21-0002. As a result 

of that legal process, the conditions of employment 

established by the 2017 CBA (and arbitration awards 

applying that CBA) are in effect, and the parties can rely 

on the 2017 CBA’s negotiated grievance procedures for 

the time being.

As for the Union’s reliance on Davis-Monthan, in 

that decision, the Authority stated that once a CBA 

expires, the CBA’s negotiated grievance and arbitration 

procedures “continue to the maximum extent possible 

absent either an express agreement to the contrary or the 

modification of those conditions . . . consistent with the 

Statute.”42 To the extent the Union is arguing the 

1994 CBA is still in effect, the Arbitrator found prior 

FLRA proceedings demonstrated that it is not. The 

Union’s arguments provide no basis for concluding the 

34 Exceptions Form at 4-5.

35 Id. at 5.

36 Id.

37 70 FLRA 876 (2018) (Member DuBester dissenting).

38 5 U.S.C. § 7121(b)(1)(C)(iii).

39 Opp’n Form at 4; Opp’n Br. at 6.

40 5 U.S.C. § 7121(a)(1) (emphasis added).

41 Exceptions Form at 5.

Arbitrator erred in that regard. Therefore, the Union’s 

reliance on Davis-Monthan is misplaced. 

Second, the Union contends the 1994 CBA 

contains a continuance clause stating, “If negotiations are 

not completed prior to the expiration date, this agreement 

shall remain in full force and effect until a new agreement 

is reached.”43 According to the Union, the parties have not 

negotiated a successor agreement to the 1994 CBA, so that 

CBA is still in effect – and the 2017 CBA is not.44 The 

Union argues that, by reimposing the 2017 CBA in 2023, 

the Agency repudiated the 1994 CBA and unilaterally 

changed conditions of employment, in violation of 

§ 7116(a)(1) and (5) of the Statute.45 Further, the Union 

argues the Arbitrator’s award conflicts with the U.S. Court 

of Appeals for the D.C. Circuit’s decision in NTEU v. 

FLRA (NTEU).46

The Union’s arguments attempt to litigate the 

merits of the Agency’s 2023 reimposition of the 

2017 CBA. Again, that issue was resolved by the ULP 

charge, settlement agreement, and subsequent appeal to 

the Acting GC in SF-CA-21-0002. The Arbitrator found 

prior FLRA proceedings resolved the issue of whether the 

1994 CBA is still in effect, and the Union provides no basis 

for finding the Arbitrator erred in that regard. As for 

NTEU, that decision stands for the proposition that, as a 

general matter, a party’s invocation of a CBA’s 

continuance clause results in the CBA remaining in effect 

until the parties negotiate a successor CBA.47 However, 

NTEU did not hold that a continuance clause extends an 

existing CBA indefinitely, regardless of subsequent 

events. In this case, as described in detail above, 

subsequent events – including litigation – have 

demonstrated the 1994 CBA is no longer in effect. Thus, 

the Union’s reliance on NTEU is misplaced.

For the above reasons, we deny the 

contrary-to-law exceptions.

B. The award is not deficient on essence 

grounds.

The Union argues the award fails to draw its 

essence from the 1994 CBA.48 When reviewing an 

arbitrator’s interpretation of a collective-bargaining 

agreement, the Authority will find that an arbitration 

award is deficient as failing to draw its essence from the 

agreement when the appealing party establishes that the 

42 70 FLRA at 877.

43 Exceptions Form at 4.

44 Id.

45 Id.

46 45 F.4th 121 (D.C. Cir. 2022).

47 Id. at 126-27.

48 Exceptions Form at 6-7.
73 FLRA No. 163 Decisions of the Federal Labor Relations Authority 833

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 purposes 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.49

In its essence exception, the Union again cites the 

1994 CBA’s continuance clause,50 argues the 1994 CBA 

remains in effect,51 and repeats its other contrary-to-law 

arguments.52 As discussed above, those arguments lack 

merit. Therefore, for the same reasons, we deny the 

Union’s essence exception.53

C. The award is not incomplete, 

ambiguous, or contradictory, so as to 

make implementation impossible.

The Union argues the award is incomplete, 

ambiguous, or contradictory as to make implementation of 

the award impossible.54 In order to prevail on this ground, 

the appealing party must demonstrate that the award is 

impossible to implement because the meaning and effect 

of the award are too unclear or uncertain.55

According to the Union, it is “impossible” for the 

2017 CBA to be in effect because it expressly states that it 

“is effective for a period of three . . . years from the date 

of execution by the [p]arties,” and the parties never agreed 

to, or executed, it.56 The Union does not explain how the 

Arbitrator’s award – which merely found the Union’s 

grievance non-arbitrable – is impossible to implement. 

Therefore, we deny this exception.57

49 U.S. DOJ, Fed. BOP, Fed. Corr. Complex, Yazoo City, Miss., 

73 FLRA 620, 622 (2023) (citing NTEU, Chapter 149, 73 FLRA 

413, 416 (2023)).

50 Exceptions Form at 6.

51 Id.

52 Id. at 6-7.

53 U.S. DOJ, Fed. BOP, Fed. Corr. Ctr., Petersburg, Va., 

72 FLRA 477, 480 n.30 (2021) (Chairman DuBester concurring; 

Member Abbott concurring) (denying essence exception because 

it was based on the same argument as a contrary-to-law exception 

that was denied).

54 Exceptions Form at 5.

55 U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., 

Poplar Bluff, Mo., 73 FLRA 498, 502 (2023).

D. We deny the Agency’s remedial request.

In its opposition, the Agency argues the Union’s 

failure to comply with the settlement agreement (and the 

Acting GC’s denial of the appeal) in SF-CA-21-0002 is a 

ULP.58 Therefore, the Agency asks the Authority to 

exercise its remedial authority under § 7118(a)(7) of the 

Statute59 and § 2429.16 of the Authority’s Regulations60

and order the Union to: (1) comply with the settlement 

agreement in SF-CA-21-0002; and (2) cease and desist 

from filing future challenges to the validity of the 2017 

CBA “in any forum overseen by the Authority.”61

Section 7118(a)(7) of the Statute pertinently 

provides that “if the Authority . . . determines after any 

hearing on a complaint” that a party committed a ULP, 

then the individual conducting the hearing “shall issue . . . 

an order” directing certain actions.62 The Arbitrator did 

not find the Union committed a ULP, and that issue has 

not been litigated before us. Consequently, there is no 

basis for us to issue ULP remedies against the Union, and 

we deny the Agency’s remedial request.63

IV. Decision

We deny the Union’s exceptions and the 

Agency’s remedial request.

56 Exceptions Form at 5 (emphasis added).

57 AFGE, Loc. 2516, 72 FLRA 567, 570 (2021).

58 Opp’n Br. at 8.

59 5 U.S.C. § 7118(a)(7). 

60 5 C.F.R. § 2429.16 (“The Authority shall take any actions 

which are necessary and appropriate to administer effectively the 

provisions of [the Statute].”).

61 Opp’n Br. at 1; id. at 8-9.

62 5 U.S.C. § 7118(a)(7).

63 See NTEU, Chapter 168, 55 FLRA 237, 242 (1999) (remedy

under § 7118(a)(7) not appropriate where arbitrator did not find

a violation of § 7116 of the Statute).
834 Decisions of the Federal Labor Relations Authority 73 FLRA No. 163

Chairman Grundmann, concurring:

I agree with the decision in all respects. I write 

separately to note that I was not a Member when the 

Authority issued Sport Air Traffic Controllers 

Organization (SATCO II)

1

and U.S. Department of the Air 

Force, 355th FSS/FSMC Davis-Monthan Air Force Base, 

Arizona (Davis-Monthan)

2

and, thus, I did not participate 

in those cases. I am open to revisiting those decisions in a 

future, appropriate case. With particular regard to 

SATCO II, I question whether it is ever appropriate for the 

Authority to raise, sua sponte, questions regarding an 

arbitrator’s jurisdiction – as distinct from our own

jurisdiction.3 However, we need not resolve that issue in 

this case. Further, for the reasons stated in the decision, I 

agree that Davis-Monthan does not support the Union’s 

position here. 

Therefore, I concur.

1

71 FLRA 626 (2020) (Member DuBester concurring).

2

70 FLRA 876 (2018) (Member DuBester dissenting).

3 Cf. U.S. Small Bus. Admin., Wash., D.C., 51 FLRA 413, 423 

n.9 (1995) (noting “the Authority may question, sua sponte, 

whether it has subject[-]matter jurisdiction to consider the merits 

of a dispute”) (emphasis added).