# Petition for Writ of Certiorari — American Federation of Government Employees, Local 1617 v. Federal Labor Relations Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1386%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 543 U.S. 1145 ## Text y rtlLeo No. O4 438 SEP 27 2004 OFFICE OF THE CLERK IN THE Supreme Court of the United States AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1617; ARTHUR CELESTINO; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,COUNCIL NUMBER 214, Petitioners, Vv. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit PETITION FOR A WRIT OF CERTIORARI HAL K. GILLESPIE * GILLESPIE, ROZEN, WATSKY, & MOTLEY, P.C. 3402 Oak Grove Avenue, Suite 200 Dallas, Texas 75204 * Counsel of Record - (214) 720-2009 WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001 ® GS © QUESTIONS PRESENTED 1. Does the Steelworker Trilogy apply to FLRA review of arbitration decisions pursuant to collective bargaining agreements of federal employees? 2. If the FLRA overturns an arbitrator’s interpretation of a collective bargaining agreement, does the district court have subject matter jurisdiction to restore the arbitration award? il LIST OF PARTIES AND RULE 29.6 LIST The parties before the Court of Appeals and this Court are listed below. To Petitioners’ knowledge, the Federal Labor Relations Authority has no parent companies or non-wholly owned subsidiaries. American Federation of Government Employees, Local 1617 Plaintiff/Petitioner Arthur Celestino Plaintiff/Petitioner American Federation of Government Employees, Council Number 214 Plaintiff/Petitioner Hal K. Gillespie Attorney for Plaintiff/Petitioner Federal Labor Relations Authority Defendant/Respondent James F. Blandford Attorney for Defendant/Respondent Solicitor General of the Attorney for United States Defendant/Respondent TABLE OF CONTENTS A. Nature of the Case and Proceedings Below....... B. Pactual Background ..................:c0ceseccsccsosesesssess. REASONS FOR GRANTING THE WRIT ......ccc0000.- A. The Court Should Grant Certiorari because of a Split in the Circuits over whether the Federal Labor Relations Authority is restricted in its review of arbitration awards under the guidelines in the Steelworkers Trilogy ............. | 1. Background to the FLRA’s authority under i ET . The Court Should Grant Certiorari Because the Fifth Circuit has decided an important federal question in a way which conflicts with relevant decisions of this Court in the Steelworkers Trilogy and Leedom v. Kyne ........ (iii) 10 10 12 12 13 IV TABLE OF CONTENTS—Continued Page C. The Court Should Grant Certiorari Because the Fifth Circuit’s Holding that the Steelworkers Trilogy opinions do not provide guidance on its jurisdiction over FLRA decisions is an important question of federal law that has not been, but should be, settled by this Court.......... 19 Ce TET siicanikatntnnswisnipiatecinnissanmniiesisodenpatamialens 24 Ft. ee ae sronensecsenesorscerscesees la Vv TABLE OF AUTHORITIES CASES Page Boire v. Greyhound Corp., 376 U.S. 473 (1964)... 15, 18 Board of Governers of the Fed. Reserve vy. MCorp Financial Inc., 502 U.S. 32 (1991)....... 15, 16 ‘Circuit City Stores v. Adams, 532 U.S. 105 UIE as.sscsiascsianicashnepelebiciiniietsdnsibaiiatioesiamecseasicdaetiaaienes 23 Cornelius v. Nutt, 472 U.S. 648, 662 (1985)......... 12 Devine v. White, 697 F.2d 421, 440 (D.C. Cir. DOIN ivscssncccsoesstictoismetinainns tasscsaniplsenccadicetasainidiyaie 12 Gilmer vy. Interstate/Johnson Lane Corp., 500 Shs BOP WED vctisiniisekseesvetuensianieiacapteuiiaunedldtigeles 23 Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180 is dnsccnsstisnnehuleiibiscianictibinionntnianaabuanateaies 3, 6, 9, 15-18 Saraw Partnership v. United States, 67 F.3d 567, eR Cree CR Fe ecctncctntnsiotcentntenslscihpenpintsiaates 19 Suzal v. Director, United States Information Agency, 32 F.3d 574, 578 (D.C. Cir. 1994)....... 16 United Steelworkers v. Enterprise Wheel & Car Carp, FOF US. TFS GPG) scinratonnssitevssnnvel 9, 13, 19-22 United Steelworkers v. American Manufacturing CO, FES US. FOG CI vvecicscsctsicnsasianenouninioes 9, 20-22 United Steelworkers v. Warrior & Gulf Navi- gation Co., 363 U.S. 574 (1960).......ccccseeeeerees 9, 20 United Paperworkers v. Misco, Inc., 484 U.S. 29 PIE ii sisctainissnidacsatascnchsevetecdecinesenacgrnmeneciacnatnea 18, 20-22 United States Dept. of Justice v. FLRA, 981 F.2d 1339, 1344, n2 (D.C. Cir. 1993)......... ssidaanales rie 12 United States Dept. of Treasury, Customs Service v. F.L.R.A., 43 F.3d 682, 686-687 CI Cle. FSGS) vciccnsceracecetpiemematinmadiaaaionans 12-14 vi TABLE OF AUTHORITIES—Continued ARBITRATION RULINGS AND FEDERAL Page LABOR RELATIONS AUTHORITY RULINGS American Federation of Government Employees Local Union No. 1617 and San Antonio Air Logistics Center, Kelly Air Force Base, San Antonio, Texas FMCS Case No. 99-17655........ 5 United States Dept. Of Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base San Antonio, Tex., 58 F.L.R.A. 63 (2002)...........000- 7 United States Dept. Of Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base San Antonio, Tex., 58 F.L.R.A. 71, (2002)...........00. 7 United States Dept. of Army, Fort Campbell Dist., v. American Federation of Government Employees, Local 2022, 37 (F.L.R.A. 1990)..... 9 United States Dept. of Health and Human Services v. AFGE Council 147, 38 FLRA BEA: EE Cee iimniccnidesncnorcansestaaaaaecs 23 United States Dept. of Labor (OSHA) and National Council of Field Labor Locals, 34 PERA 573, SIG OID voici ees 23 STATUTES RE BD iv sscicstuinceannntics on eee 4 DUB, BIG vsicscinsacccisemecncnceeee 4 BE 6 Ti vicseisisiiohisantcctcdcals es eee 4 Lit se i, | Snnenasib. 2S a4 2, 10 SURE 8 FE vii ccccusie eke ae 2 SUE 8 TI ivsiinedadcnvicceuinea ae 2, 10 S UBL. § TUG oercieseseciseecsesician as! 2, 3, 10 21k ise 2.) neat i: 2, 3, 10, 11 SUB. © TUT oiieneessssisrvncemecinneciac 10, 13, 14, 18 SUG, CFE rcvinercsseinstsiniesnshacccaaloanmted 3,14 SUBS. § FUPMIIG rcsiscessnssicincsenieeas us 16 Vil TABLE OF AUTHORITIES—Continued Page pA FT eh Ep - ¢ | Seance ERO re 2 Be Sse PAOD vita entices sssntenesouniesningimintehinnnsiens < 4 ee a ST crnecsccennsinnenmoninnaameins 4 Be SE be nedeasinamnanadieuinaas 4 FS Rs. EE terineichenmnsvnisniibéstamnineriantianeiinnein 4 Be Os BOER shcicininasicnnasenesinaaniadabieastncsdiindas 4 RULES ID CU TE Bi E -sesicsdcctinssnsanneapecsnaeinernipinen 2 eran Coeatt TRE 14. 161) ..ncrccerescsvsercscserscerssecees 3 ie ies es eR ecdasseceieninenieenensinsgsnneratinnnn 3,19 SUPPLEMENTAL AUTHORITY H.R. Conf. Rep. No. 1717, 95th Cong., 2nd Sess. eased heheh cecaasiliesnciheenassaisetenecnanedsieiineaciins 11,14 Elkouri & Elkouri, How Arbitration Works, 1300-1301, (Ruben ed., 6th ed. 2003)............... 22 IN THE Supreme Court of the United States No. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1617; ARTHUR CELESTINO; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,COUNCIL NUMBER 214, Petitioners, We FEDERAL LABOR RELATIONS AUTHORITY, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit PETITION FOR WRIT OF CERTIORARI American Federation of Government Employees, Local 1617, Arthur Celestino, and American Federation of Govern- ment Employees, Council Number 214 pray for a writ of certiorari to review the opinion of the United States Court of Appeals for the Fifth Circuit, rendered in these proceedings on June 29, 2004. OPINIONS BELOW The unpublished opinion of the United States Court of Appeals for the Fifth Circuit is contained in the Appendix. See App. A. A copy of the Order Accepting Report and Rec- ommendation of United States Magistrate Judge of United States District Court for the Western Division of Texas is contained in the Appendix. See App. B. A copy of the decision of the Federal Labor Relations Authority is con- 2 tained in the Appendix. See App. C. Excerpts relevant for the Court’s review of this petition for certiorari of the 286 page arbitration opinion and award are also contained in the Appendix. See App. D JURISDICTION This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1) to review a decision of the United States Court of Appeals for the Fifth Circuit by writ of certiorari after rendering judgment. The decision for which review is sought was entered on June 29, 2004. Pursuant to this Court’s Rule 13.1, this petition for writ of certiorari is timely because it is being filed within ninety days after entry of judgment. STATUTES INVOLVED This case involves the Federal Labor Management Rela- tions Act (the FLMRA), 5 U.S.C. §7101 et seg. Of particular relevance in this case are: 5 U.S.C. § 7101 which states the Findings and Purpose of the FLMRA, indicating it is in the public interest to protect the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them. 5 U.S.C. § 7102 which states that federal sector em- ployees are granted the right to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter. 5 U.S.C. § 7104 which establishes the creation of the Federal Labor Relations Authority. 5 U.S.C. § 7105(a)(2)(H) which grants the FLRA authority to resolve exceptions to arbitrator’s awards pursuant to the limitations of §7122. 3 5 U.S.C. § 7122 which establishes the limitations of the FLRA’s authority to review arbitration awards. 5 U.S.C. § 7123 which establishes judicial review and enforcement of the FLMRA. The Appendix contains the full text of these statutes pursuant to Sup.Ct.R. 14.1(f). See App. E-J. STATEMENT OF THE CASE ~— A. Nature of the Case ard Proceedings Below Petitioners filed their First Amended Complaint on March 18, 2003 seeking to reinstate an arbitration award which had been overruled by the Federal Labor Relations Authority. In October 2003, the district court granted the FLRA’s 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, denied Petitioners’ cross-motion for summary judgment, and dismissed for lack of subject matter jurisdiction. Petitioners timely appealed to the United States Court of Appeals for the Fifth Circuit. A three-judge panel of the Fifth Circuit affirmed the judgment of the district court in June of 2004. The FLRA contested the jurisdiction of the district court. Petitioners contended the district court had jurisdiction over Petitioners’ claims because the FLRA, reviewing the decision of a labor arbitrator pursuant to 5 U.S.C. § 7105(a)(2)(H) and 7122, violated the teachings of the Steelworkers Trilogy by substituting its interpretation of a collective bargaining agreement for that of the arbitrator. By doing so, the FLRA exceeded the limited scope of review for arbitration awards conferred on it by Congress in 5 U.S.C. § 7122(a)(2). There- fore, the district court had jurisdiction under the Leedom v. Kyne exception to the foreclosure of judicial review under federal acts, created in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180 (1958). Petitioners argued that because the district court held subject matter jurisdiction under Leedom v. Kyne, the district court also had general subject matter jurisdiction 4 under 28 U.S.C. §§ 1331, 1337, and 1361, and under 28 U.S.C. §§ 2201 and 2202, as Petitioners sought declaratory relief and review of an action of an agency of the United States pursuant to 5 U.S.C. §§ 702, 705, and 706. The district court dismissed Petitioners’ claims claiming a lack of subject matter jurisdiction. Petitioners timely appealed this decision to the Fifth Circuit Court of Appeals. On June 29, 2004 the Fifth Circuit affirmed. B. Factual Background Petitioners won their arbitration case that sought environ- mental differential pay due to exposure on the job to potentially harmful levels of airborne asbestos in a 286 page arbitration decision dated October 9, 2001. The FLRA, in a split decision, overruled and set aside the arbitrator’s opinion and award. After the FLRA denied rehearing, Petitioners sued in federal district court to reinstate the arbitrator’s award and opinion and to require the FLRA to hear Petitioners’ exception concerning the limitation of remedy in the arbi- tration opinion and award on grounds that the FLRA had overstepped its statutory authority in overruling the arbi- trator’s interpretation of the underlying parties’ collective bargaining agreement. The district court dismissed Peti- tioner’s suit for lack of subject matter jurisdiction and the Fifth Circuit Court of Appeals affirmed. Factually, this case arises out of an Environmental Differ- ential Pay (“EDP”) grievance and arbitration filed by employ- ees at Kelly Air Force Base (“KAFB”) in San Antonio, Texas, seeking EDP and backpay for exposure to airborne asbestos. -At all times pertinent to the underlying grievance and arbitration, bargaining unit members at KAFB were covered by a collective bargaining agreement entitled “Master Labor Agreement” (“MLA”). EDP was covered in the parties’ MLA and was subject to interpretation by the arbitrator. Pursuant to the parties’ MLA, the parties selected 5 an arbitrator from the Federal Mediation and Conciliation Service (FMCS) and a multi-week arbitration was held regarding the EDP claims in FMCS Case No. 99-17655 before the Honorable Larry D. Smith. The parties stipulated that the arbitrator was properly selecied, pursuant to the parties’ collective bargaining agreement, and that the Arbi- trator had jurisdiction to determine all the issues set forth in the arbitrator’s opinion and award. (App. D, at 51a). During the arbitration, KAFB contended that the Air Force had issued regulations regarding EDP, which tied EDP to the United States Occupational Safety and Health Adminis- tration’s Permissible Exposure Limit (referred to as the “OSHA PEL” standard) and that those regulations trumped the agreement of the parties as found in the MLA. The Union argued, and the arbitrator agreed, that the Air Force regulations were in conflict with the MLA because the MLA required a case-by-case analysis of entitlement to EDP, specifically rejecting any predetermined level of entitlement. Based on his interpretation of the MLA, Arbitrator Smith issued a 286 page Award and Opinion that granted limited EDP backpay and interest to the bargaining unit employees at KAFB. (App. D) Arbitrator Smith’s opinion and award was tied to his interpretation of the parties’ MLA in holding: “The parties did not contractually agree to use the OSHA PEL as the point of entitlement to EDP” and “the words of the MLA were crafted with the apparent intent to incorporate the bargaining objective of the Union to avoid any definition of “practically eliminated.” (App. D, at 62a-63a, emphasis added). The arbitrator’s interpretation of the meaning of the “words of the MLA” was supported by extensive evidence presented during the arbitration regarding the intention of the parties in 6 drafting the MLA. Based on the evidence presented Arbi- trator Smith found: No credible evidence exists to show that the Union has ever, from the bargaining table activity of the first MLA to the time of the filing of this grievance, agreed that EDP entitlement occurs only in the event of a breach of the OSHA PEL. To the contrary, the Union has always contended that EDP should be considered and decided on a case-by-case basis without any strict reliance upon the OSHA PEL or for that matter, any other specific level of exposure. (App. D, at 60a). Having interpreted the meaning of the parties’ MLA, the Arbitrator, inter alia, retained jurisdiction and made these findings: 2. 10. 11. The parties did not contractually agree to use the OSHA PEL as the point of entitlement to EDP. . . Bargaining unit employees have been exposed to airborne concentrations of asbestos fibers. . . It is reasonably possible that such exposure may result in illness or injury. Protective equipment or other safety device has not essentially removed the possibility of such injury or illness. a The Agency violated Section 26.01 of the collective bargaining agreement and such a violation is an unwarranted and/or unjustified personnel act. The Agency’s unwarranted and/or unjustified per- sonnel act entitles employees to compensation pursuant to the Back Pay Act, in order to remedy the failure of the Agency to pay an environmental differential in violation of Article 26.01. (App. D, at 67a-68a). After the arbitration award, KAFB filed exceptions with the FLRA to overturn the arbitrator’s ruling. KAFB’s 7 primary exception to the arbitrator’s ruling was that the Air Force regulation was “not inconsistent with the parties’ MLA.” The Union responded to KAFB’s exception by pointing out that the arbitrator had specifically ruled that the parties’ MLA was contrary to the Air Force’s uni- lateral regulation. On September 11, 2002, over the dissent of Member Pope, the FLRA set aside the arbitration award in its entirety on grounds that the Air Force regulations “do not conflict with the collective bargaining agreement,” and the Air Force regulations “are specifically linked to the payment of EDP.” In overturning the Arbitrator’s decision, the FLRA had to first disagree with the Arbitrator’s interpretation of the parties’ MLA, and then make its own interpretation of the MLA. Obscuring this key fact—that the FLRA had to reject the arbitrator’s interpretation of the MLA before making its own interpretation the MLA—is the FLRA’s portrayal of its rejection of the Arbitrator’s interpretation of the MLA as an agreement with the Arbitrator’s interpretation of the MLA. The FLRA does this in a single sentence of its majority opinion, stating: On the basis of the Arbitrator’s interpretation of the agreement, we find that the [Air Force regulations] do not conflict with provisions of the agreement. The FLRA further occludes its re-interpretation of the MLA by taking small portions of the Arbitrator’s own language and ' United States Dept. Of Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base San Antonio, Tex., 58 F.L.R.A. 63 (2002). (App. C). In addition to rending the September 11, 2002 opinion which set aside the arbitrator’s opinion and award of backpay, the FLRA issued a “supple- ment order” regarding a subsequent order of the arbitrator in which the arbitrator ordered the facilitation of the backpay award and differed on the issue of attorneys fees. United States Dept. Of Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base San Antonio, Tex., 58 F.L.R.A. 71, (2002). 8 making it appear that the FLRA and the Arbitrator agree on the interpretation of the MLA. While the FLRA majority purports to agree with the arbi- trator’s interpretation of the parties’ MLA, the holdings of Arbitrator Smith and the F LRA (majority) on the meaning of the MLA are incongruous. Per the majority FLRA Opinion, because the MLA did not set a specific threshold standard for payment of asbestos related EDP,’ the Air Force regulation Setting a specific standard was not inconsistent with the MLA. This reasoning is pure contract interpretation of the worst sort, in that it would deny the parties the right to agree that instead of having a specific threshold Standard for entitlement to EDP, the entitlement could be determined on a case-by-case basis by an arbitrator if the parties disputed entitlement. The contract interpretation by the FLRA majority was the Opposite of the contract construction of Arbitrator Smith, who found that the MLA was inconsistent with the Air Force regulation, which limited EDP awards for asbestos exposure to cases where exposure at the OSHA PEL could be established, because the MLA rejected any attempt to establish a specific standard, including but not limited to the OSHA PEL. FLRA Member Pope’s dissent faults the majority for inter- fering with the arbitrator’ s interpretation of the MLA: The majority distorts the award by relying on the Arbi- trator’s statements that Article 26.01 contains “no specific standard” to trigger EDP and that the parties had not “‘agree[d] to a specific standard.’” Majority at 13. It is clear, in this regard, that in finding the parties did not agree to a specific standard, the Arbitrator found that they did not agree to a specific predetermined quan- “a specific threshold standard-the OSHA PEL-—was what the Air Force sought in bargaining and did not get, per the findings of the arbi- trator. Arbitrator Smith specifically discredited the testimony of Agency witnesses and credited Union witnesses on this issue. 9 titative standard. As noted above, the Arbitrator unde- niably rejected the Agency’s argument that the Union had agreed to adopt the OSHA standard and found, as a matter of contract interpretation, that the agreement incorporated the Union’s position that the standard would be determined case-by-case in arbitration. Thus, the majority is permitting the Agency to accomp lish precisely what Fort Campbell? prohibits: trumping a collective bargaining agreement with a conflicting Agency regulation. (App. C, at 40a) (emphasis added). REASONS FOR GRANTING THE WRIT Powerful reasons exist for granting certiorari. The Fifth Circuit’s decision in AFGE 1617 v. FLRA (App. A) deepens a split between the circuits on an important matter of federal law regarding the extent to which the FLRA’s authority to review arbitration awards is limited by the Steelworkers Trilogy * and “on other grounds similar to those applied by Federal courts in private sector labor-management relations.” In addition to the split among the circuits, the Fifth Circuit’s decision in AFGE 1617 decides important questions of federal law in a way that conflicts with this Court’s holdings in the Steelworker Trilogy and Leedom vy. Kyne.° Finally, certiorari should be granted because AFGE 1617 decides crucial questions of federal law which have not, but should > United States Dept. of Army, Fort Campbell Dist., v. American Fed- eration of Government Employees, Local 2022, 37 (F.L.R.A. 1990). * United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, (1960); United Steelworkers v. American Manufacturing Co., 363 U.S. 564 (1960); and United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960). > Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180 (1958)(holding that gen- eral subject matter jurisdiction is vested in district courts when an agency acts beyond its authority as granted within its enabling statute). 10 be, settled by this Court in order to solidify and uphold federal sector employees’ rights to collective bargaining under the Federal Labor-Management Relations Act, 5 U.S.C. §7101 et. seg. (“FLMRA” or “Act”). A. The Court Should Grant Certiorari because of a Split in the Circuits over whether the Federal Labor Relations Authority is restricted in its review of arbitration awards under the guidelines in the Steelworkers T, rilogy. There is a split in the circuits about whether the Stee/- workers Trilogy, with its high level of deference to arbi- trators’ interpretation of collective bargaining agreements, places any limits on the FLRA’s authority to review arbitral awards in the federal sector.® Currently, only the District of Colombia Circuit has addressed this necessary restriction on the FLRA’s authority. 1. Background to the FLRA’s Authority under the FLMRA The FLRA is a three member panel mandated in 5 U.S.C. § 7104 that draws its powers and duties from § 7105 of the Act. Specifically, § 7105(a)(2)(H) of the Act gives the FLRA the limited power and duty to “resolve exceptions to arbitrator’s awards under section 7122” of the Act. Section 7122 limits the FLRA’s review power by specifying that the FLRA may only review exceptions to an arbitrator’s award if that award is, “deficient (1) because it is contrary to any law, ° The Fifth Circuit opinion finesses the impact of the Steelworkers Trilogy, by holding that these opinions “do not provide guidance on [its] jurisdiction over FLRA decisions.” (App. A, at 9a). Under Leedom, however, if the Steelworkers Trilogy guidelines are statutorily imposed on the FLRA under 5 U.S.C. § 7122(a)(2) and the FLRA violates this statu- tory limitation on its review authority, the Steelworkers Trilogy opinions necessarily affect federal court jurisdiction. SA Re TE ION NIE EI PR BS PB Oe re eee owt PV ie tele. 11 rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor man- agement relations.” 5 U.S.C. § 7122(emphasis added). This limited framework of authority is further restricted in that the FLRA’s actions and recommendations upon an arbitration decision must be, “consistent with applicable laws, rules, or regulations.” 5 U.S.C. § 7122. The FLMRA went into effect nearly twenty (20) years after the Steelworkers Trilogy and expressly limits the FLRA’s review power of arbitration awards on, “grounds similar to those applied by Federal courts in private sector labor- management relations.” 5 U.S.C. § 7122. This language is particularly important when matched with the language of the legislative debates leading up to the creation of the FLMRA, which show Congress’ clear intention was to severely limit _ the FLRA’s authority to review arbitration decisions and to hold such limitations in line with the federal courts’ limitations found in the Steelworkers Trilogy. In framing the FLMRA, Congress declared that: 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. H.R. Conf. Rep. No. 1717, 95th Cong., 2nd Sess. 153 (1978). Upon reviewing this statutory history, it is clear that Congress restricted the right of appeal under § 7123 of the Act because under § 7122, the FLRA itself was restricted in its authority to review arbitrators’ decisions when drawn from the essence of the collective bargaining agreement. 12 2. Split in the Circuits a. District of Columbia Circuit The District of Columbia Circuit has analyzed the Civil Service Reform Act and held that the policies favoring extremely limited judicial review of arbitrators’ decisions are fully applicable in the federal sector. Devine v. White, 697 F.2d 421, 440 (D.C. Cir. 1983) overruled on other grounds by, Cornelius v. Nutt, 472 U.S. 648, 662 (1985). The District of Columbia Circuit tracked the history of private sector and federal sector arbitration through the application of the Steelworkers Trilogy and concluded that, “the possible grounds for treating arbitral decisions in the federal sector less deferentially than private sector decisions cannot with- stand careful scrutiny.” /d. at 439. The District of Columbia explained further that while limited review of arbitral decisions has been granted by Congress, this was done in an effort to promote uniformity of process and adequately protect the rights of government employees, but consistent with private sector precedent, Congress has done so in a manner that, “leaves arbitrators’ interpretations of collective bargaining agreements themselves largely unreviewable.” Jd at 440. The District of Columbia Circuit has further tracked the - implications of the Steelworkers Trilogy in its subsequent holdings. In United States Dept. Of Justice y. FLRA, the District of Columbia Circuit recognized the importance of arbitration to the scheme established by the F LMRA, that accords to the FLRA “extremely limited” review of those arbitral awards that it has jurisdiction to review. United States Dept. of Justice v. FLRA, 981 F.2d 1339, 1344, n.2 (D.C. Cir. 1993), citing to Devine at 436, relying on Steelworkers, 363 U.S. at 597. The District of Columbia applies this same analysis in United States Dept. of T reasury v. United States Customs Service, holding that the merits of an arbitrator’s award that implicates the collective bargaining 13 agreement are “absolutely immune from judicial review,” and if the party’s exception to the arbitral award is not one of law, but of contract, the FLRA’s role is limited to that of the federal courts in private sector labor-management relations as found in the Steelworkers Trilogy. United States Dept. of Treasury, Customs Service v. F.L.R.A., 43 F.3d 682, 686-687 (D.C. Cir. 1995)(hereinafter, “Customs’’), citing to 5 U.S.C. §7122(a)(2) and United Steelworkers vy. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). b. Fifth Circuit The holdings of the District of Columbia Circuit, which establish that the FLMRA was created with Congress’ intent to incorporate the high level of deference for arbitral awards found within the Steelworkers Trilogy, are in stark contrast to the Fifth Circuit’s holding in this case. The Fifth Circuit, while ignoring Petitioners’ statutory history of the FLMRA,’ States that: Appellants cite a series of three Supreme Court opinions, the Steelworkers Trilogy, to support the proposition that employment arbitrations are to be given a high degree of deference. The Steelworkers Trilogy opinions, however, deal with federal court review of employment arbitration decisions, not federal court review of FLRA decisions. The Steelworkers Trilogy opinions do not provide guid- ~ ance on this court’s jurisdiction over FLRA decisions. (App. A, at 9a). The Fifth Circuit has failed to directly determine to what extent the FLRA is limited in its authority by the Stee/- ’ The Fifth Circuit interjects that Petitioners, “do not cite any legislative history,” to support the proposition that Congress intended the FLRA’s review authority of arbitral awards to track that of the Steelworkers Trilogy. Contrary to the Fifth Circuit’s statement, Petitioners provided citation to legislative history in both their brief and reply brief before the court. 14 workers Trilogy guidelines, but by necessary implication, the Fifth Circuit freed the FLRA to depart completely from those guidelines and to liberally overrule the arbitrator’s inter- pretation of a collective bargaining agreement. The Fifth Circuit cites to the District of Columbia Circuit’s decision in Customs, 43 F.3d 682, 686-87 (D.C. Cir. 1995) for the proposition that if an arbitrator’s award is challenged because it is allegedly contrary to a law, rule or regulation, the FLRA must conduct a de novo review. (App. A, at 7a). This misstatement of the Treasury holding exemplifies the Fifth Circuit’s effort to expand the FLRA’s authority to strike down arbitrator’s rulings in violation of Steelworkers Trilogy principles as set forth in §7122(a)(2). The District of Columbia actually held that “the merits of an arbitrator’s collective bargaining agreement are, by virtue of the categorical nature of this provision, absolutely immune from judicial review.” Customs at 686. Additionally, the Fifth Circuit twists the District of Columbia’s precedent further by changing the holding from de novo review of the “legal question” to de novo review of the arbitrator’s interpretation of the collective bargaining agreement. The Fifth Circuit’s incorrect analysis of Customs evidences the Fifth Circuit’s effort to provide more authority to the FLRA than Congress provided under § 7122(a)(2). Compounding this problem, the Fifth Circuit addresses the limited review of FLRA decisions on arbitral awards (as found in § 7123), yet fails to recognize that the judiciary was given limited review power of FLRA decisions under § 7123 because the FLRA, under § 7122(a)(2) was never intended a scope of review that would affect an arbitrator’s decision based upon a collective bargaining agreement. H.R. Conf. Rep. No. 1717, 95th Cong., 2nd Sess. 153 (1978). Currently the FLRA has carte blanc authority to overturn arbitrators’ awards that are based upon the arbitrator’s interpretation of a collective bargaining agreement and no court within the Fifth TF 15 Circuit has the jurisdiction to reverse the F LRA to insure that it complies with its Statutory mandate to conduct narrowly limited review of arbitration decisions. B. The Court Should Grant Certiorari Because the Fifth Circuit has decided an important federal question in a way which conflicts with relevant decisions of this Court in the Steelworkers Trilogy and Leedom vy. Kyne. The Fifth Circuit’s holding in AFGE 1617 conflicts with this Court’s decisions in both the Steelworkers Trilogy and Leedom. While it is undisputed that Leedom jurisdiction is a nalrow exception to a general preclusion of judicial review, it is a necessary exception. The Fifth Circuit has strained to further restrict the exception by ruling that the Steelworkers Trilogy (which according to the District of Columbia Court of Appeals, restricts the FLRA’s scope of review of arbitration awards per statue) does not relate to jurisdiction. Nothing in Leédom suggests that a federal agency is free from Leedom jurisdiction when it exceeds its aut) ority in this manner. In analyzing this Court’s Leedom precedent, the Fifth Circuit reviewed Leedom, Boire y. Greyhound Corporation, and Board of Governors of the Federal Reserve System v. MCorp Financial, Inc. (MCorp)* and held that Leedom juris- diction does not exist when there is evidence of congressional intent to deny district court review, the statute provides an adequate opportunity for judicial review, and the action of the agency did not plainly violate an unambiguous and man- datory statutory provision. (App. A, at 5a). This is flawed analysis. The act at issue in MCorp, the Financial Institutions Supervisory Act (FISA), has an express preclusion of judicial review. FISA states that, “no court shall have jurisdiction to ® Boire v, Greyhound Corp., 376 U.S. 473 (1964); Board of Governors of the Fed. Reserve v. MCorp Financial Inc., 502 U.S. 32 (1991). 16 affect by injunction or otherwise the issuance or enforcement of any notice or order under this section. or to review, modify, suspend, terminate, or set aside any such notice or order.” MCorp at 39. Contrasted with the FISA preclusion, 5 U.S.C. § 7123(a)(1) is anything but an express preclusion of judicial review. Another reason MCorp held that Leedom jurisdiction did not apply was because FISA allowed a meaningful and adequate opportunity for judicial review through future avenues the petitioners in MCorp had not yet explored. MCorp at 43-44. The Fifth Circuit’s application of MCorp to the FLMRA, a Statute with no express preclusion of judicial review and no meaningful and adequate opportunity for judicial review through future avenues’, extinguishes Leedom jurisdiction in its entirety. If the Fifth Circuit is allowed to cast MCorp as a bar to judicial review in cases where a statute merely implies preclusion and provides no meaningful and adequate oppor- tunity for judicial review, then Leedom, with its emphasis on the ability of the judiciary to protect of rights granted by Congress, is completely foreclosed. Leedom at 188-191. Granting certiorari will allow the Court to prevent MCorp from becoming a total bar to the application of Leedom. The Fifth Circuit’s application of Leedom eviscerates the reason the. Leedom doctrine exists, to strike down an act of an agency made in excess of the authority that agency was given > Not only does the FLMRA not provide a meaningful and adequate opportunity for judicial review, it has been held that a federal employee’s attempt to access the courts prior to bringing a grievance and arbitration is a failure to exhaust arbitration rights. Suzal v. Director, United States Information Agency, 32 F.3d 574, 578 (D.C. Cir. 1994). Under the FLRA’s scheme, per the Fifth Circuit holding, federal employees are barred from the courts both before and after their rights have been violated. PE ANI Wak ARAL Bi i Laie latins Aso soar ASA 4: ey wad ale, 17 by Congress. Leedom at 188-189. While Leedom is narrow and rarely applied, its essential holdings have not been altered by this Court. Leedom holds: This suit is not one to “review,” in the sense of that term as used in the Act, a decision the Board made within its jurisdiction. Rather, it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act. Section 9(b)(1) is clear and mandatory. . . . Yet the Board included in the unit professional employees, after refusing to determine whether a majority of the professional employees would “vote for inclusion in the unit.” Plainiy, this was an attempted exercise of power that had been Specifically withheld. [It deprived the professional employees of a “right” assured to them by Congress. Surely, in these circumstances, a Federal District Court has jurisdiction of an Original suit to prevent deprivation of a right so given. Leedom at 188-189. The Fifth Circuit, in holding that the Steelworkers Ti rilogy has no bearing on § 7122(a)(2), and in holding that the FLRA’s actions in this case do not meet the standards of Leedom, has limited this Court’s Leedom doctrine to its particular facts. In this case, the F LRA clearly violated § 7122(a)(2) when it Overturned the Arbitrator’s interpretation of the parties’ MLA despite the fact that 5 U.S.C. § 7122 restricts the F LRA’s authority to review in line with the Federal Courts per the Steelworkers T; rilogy. Here too, the FLRA’s actions have deprived the Plaintiffs of their rights as given to them by Congress under the FLMRA and they have no Subsequent course of action to regain that right other than seek protection in a federal court. The Fifth Circuit’s erosion of the Leedom doctrine ignores obvious application of Leedom to this case. A casting of this case in the words of Leedom could be paraphrased as follows: This suit is not one to “review,” in the sense of that term as used in the Act, a decision the Authority made within 18 its jurisdiction. Rather, it is one to strike down an order of the Authority made in excess of its delegated powers and contrary to a specific prohibition of the Act. Sec- tion 7122(a)(2) is clear and mandatory .... Yet the Authority reviewed an arbitrator’s award on the merits, substituting its interpretation of a collective bargaining agreement for that of the arbitrator. Plainly, this was an attempted exercise of power that had been specifically withheld. It deprived the parties to the collective bargaining agreement of a “right” assured to them by Congress. Surely in these circum- stances, a Federal District Court has jurisdiction of an original suit to prevent deprivation of a right so given.’° Furthermore, in applying Boire, to this case, the Fifth Circuit continues to curtail Leedom jurisdiction in that the Fifth Circuit stretches Boire, which did not involve a violation of § 7122(a)(2), into meaning that any error by an agency which can be couched as a “factual error” does not fall under the Leedom exemption. Boire’s application to the Leedom doctrine must be specifically tied to the facts of Boire and not made into a free pass for any agency that claims to merely have made “factual errors.” The important difference between Boire and the present case, which the Fifth Circuit ignores, is that under the FLMRA, the FLRA was not given the authority to reinterpret the arbitrator’s determination of the meaning of the parties’ collective bargaining agreement, '° This is a paraphrase of direct language from Leedom with the only changes being marked in bold, substituting precisely the facts and issues of the present case for those in Leedom. This language underscores the importance to federal labor principles and the parallel between Peti- tioner’s effort to obtain relief in the federal courts (starting at the district level) where the FLRA has substituted its interpretation of the MLA for that of an arbitrator with the relief a party in the private sector would seek at the circuit court level if a federal district court overstepped its Steelworkers Trilogy review authority in overturning an arbitration award. See, e.g. United Paperworkers International Union v. Misco, Inc., 484 U.S. 29 (1987). Ra At Mn 6D BOR) Nile Needed Bas ca Obedbe TILA ie ab nerds 19 and therefore, any alleged “factual errors” made by the FLRA were necessarily made after the FLRA had undertaken a review of the arbitrator’s interpretation of the collective bargaining agreement, and hence were made in excess of the FLRA’s authority. C. The Court Should Grant Certiorari Because the Fifth Circuit’s Holding that the Steelworkers Trilogy opinions do not provide guidance on its jurisdiction over FLRA decisions is an important question of federal law that has not been, but should be, settled by this Court. This Court has not addressed whether, and to what extent, the Steelworkers T; rilogy applies to federal sector arbitrations. In this case, the FLRA substituted its interpretation of the parties’ collective bargaining agreement for that of the arbitrator’s.'! This violates basic underpinnings of collective bargaining principles as established in the Steelworkers Trilogy, principles that should be applicable to federal sector employees with collective bargaining agreements. In both private sector and public sector labor law, it is axiomatic that an arbitrator’s interpretation of a collective bargaining agreement is near sacrosanct and cannot be overturned when the decision draws its essence from the collective bargaining agreement. United Steelworkers y. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). The Steelworkers T; rilogy emphasizes the balance of bar- gaining power in labor relations and the importance of arbitration decisions by holding that if arbitration awards were reviewed for errors, based upon the arbitrator’s interpretation of the collective bargaining agreement, the : Regardless of the jurisdiction question, this is a disputed issue of fact on which the district court and the Fifth Circuit were obligated under Fed. R. Civ. P. 12(b)(1) to take Petitioners’ alleged facts as true. Saraw Part- nership v. United States, 67 F.3d 567, 569 (Sth Cir. 1995). 20 finality provisions of arbitration agreements would be rendered meaningless and the bargained for arbitration would become worthless. /d. at 599, citing to United Steelworkers v. American Manufacturing Co., 363 U.S. 564 (1960); and see United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960). This Court held that parties to a collective bargaining agreement have bargained for the arbitrator’s interpretation of the agreement, not the court’s, or as in this case, two of three federal agency members. /d. In the private sector this Court provided a powerful example of its commitment to protect arbitrators’ decisions in United Paperworkers v. Misco, Inc., 484 U.S. 29, (1987) (Misco). In Misco, a paper mill in Louisiana terminated an employee after he was arrested for possession of marijuana at his home for possession in his car on plant premises after the police observed the employee and two other men in the car smoking marijuana during the employee’s break. Id. at 32-34. The employee’s union grieved the termination. The arbitrator, based on his interpretation of the parties’ collective bargaining agreement, determined that the company did not have just cause at the time of the employee's termination and granted reinstatement with full back pay. Jd. The Company filed suit in.district court to overturn the arbitrator’s decision claiming on public policy grounds that an employer must be able to fire an employee for smoking marijuana on plant premises for safety reasons. Id. at 34-35. The district court and the Fifth Circuit agreed. These federal courts reviewed the facts of the arbitration and came to a different conclusion ' than the arbitrator. Jd. This Court, citing the Steelworkers : Trilogy, reinstated the arbitrator’s decision with the following language which emphasizes the finality and unreviewability 21 of arbitrator’s decisions when based on the collective bar- gaining agreement: The courts are not authorized to reconsider the merits of an award even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract. Id. at 36. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator’s judgment, when it was his judgment and all that it connotes that was bargained for. . . . The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. .. . Id., citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-68 (1960)(emphasis added). To resolve disputes about the application of a collective- bargaining agreement, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them. The same is true of the arbitrator’s interpretation of the contract. The arbitrator may not ignore the plain language of the contract; but the parties having authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract. Enterprise Wheel, supra, 363 U.S. at 599, 80 S.Ct. at, 1362. So, too, where it is contemplated that the arbitrator will determine remedies for contract violations that he finds, courts have no authority to disagree with his honest judgment in that respect. ... 22 [A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision. .. . Misco at 38; citing Steelworkers v. Enterprise Wheel, 363 U.S. 593, 596, 597, and 599 (1960); and Steelworkers v. American Mfg., Co., 363 U.S. 564, 567-568 (1960)(emphasis added). Misco makes unmistakably clear that the 1960 opinions in the Steelworkers Trilogy are fully intact and are unsinkable doctrines of labor law in this country even when confronted by the troubling fact pattern of Misco. In the face of the articulate and reasoned decision of Arbitrator Smith and the powerful dissent of Member Pope of the FLRA, this Court’s language in Misco about an “arbitrator even arguably construing or applying the contract” leaves no wiggle room for the FLRA majority if the Steelworkers Trilogy applies in the federal sector. While the Steelworkers Trilogy was based on private sector labor law, the reverence for arbitrators’ interpretations of collective bargaining agreements has carried over into all aspects of public sector labor relations. Elkouri & Elkouri, the leading authority on arbitration, states that the FLRA may not rule on questions of contract interpretation made by the arbitrator. Elkouri & Elkouri, How Arbitration Works, 1300, (Ruben ed., 6th ed. 2003). This is the same level of deference given to private sector arbitrator rulings under the Steelworkers Trilogy. The Elkouri text (now wrong in the Fifth Circuit as a practical matter, because if the FLRA exceeds its authority the federal courts lack jurisdiction to act) teaches that federal sector arbitral awards may not be overturned merely because of disagreement with the arbi- trator’s findings of fact, reasoning, and conclusion, or con- clusions drawn from the evidence. El/kouri at 1301. 23 Despite the carte blanche the FLRA now enjoys in the Fifth Circuit, the FLRA itself, not long ago, tracked the language of the Steelworkers Trilogy by holding that, “the inter- pretation of the collective bargaining agreement is a matter solely for the arbitrator because it is the arbitrator’s con- struction of the agreement for which the parties have bargained.” United States Dept. of Health and Human Services v. AFGE Council 147, 38 FLRA 1183, 1188 (1990). The FLRA has explicitly referenced the Steelworkers standard relied upon in Misco, when the FLRA held, “as long as an arbitrator is even arguably construing the collective bargaining agreement, that a court is convinced that the arbitrator committed serious error does not suffice to find the award deficient.” United States Dept. of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990). It would be difficult to conjure a ruling by a United States Circuit Court that could have a more profound and damaging, national impact than this decision by the Fifth Circuit Court of Appeals. Not only does federal labor policy favor the sanctity of arbitration awards, but federal labor policy favors arbitration. This decision, which treats arbitration awards in the federal sector as inferior to those in the private sector (because they may be freely overturned), is at odds not only with the Steelworkers Trilogy, but also with the holdings of the District of Columbia Court of Appeals and earlier more reasoned decisions of the FLRA itself. This decision undercuts federal policy favoring arbitration, a policy fur- thered by this Court’s rulings in Circuit City Stores v. Adams, 532 U.S. 105 (2001) and Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). Arbitration is not a viable or fair substitute for litigation (or for concerted activity by unions) where arbitration awards are not protected by the doctrine this Court announced in 1960 in the Steelworkers T; rilogy. 24 CONCLUSION For all the reasons stated herein, the petition for a writ of certiorari should be granted. e Respectfully submitted, HAL K. GILLESPIE * GILLESPIE, ROZEN, WATSKY, & MOTLEY, P.C. 3402 Oak Grove Avenue, Suite 200 Dallas, Texas 75204 * Counsel of Record (214) 720-2009 APPENDICES la APPENDIX A UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 03-51264 Summary Calendar AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1617; Arthur Celestino; American Federation of Government Employees, Council Number 214, Plaintiffs-Appellants, v. FEDERAL LABOR RELATIONS AUTHORITY, Defendant-Appellee. Decided June 29, 2004. Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges. PER CURIAM:” Appellants, the American Federation of Government Employees Local 1617 (“Local 1617”), Arthur Celestino, and American Federation of Government Employees Council Number 214 (“Council Number 214”), sued the Federal Labor Relations Authority (“FLRA”) in district court, alleg- ing that the FLRA exceedéd its authority in overruling an arbitration decision. Appellants’ suit was dismissed for lack "Pursuant to Sth Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Sth Cir. R. 47.5.4. 2a of subject matter jurisdiction. For the following reasons, this court AFFIRMS the district court’s judgment dismissing Appellants’ lawsuit. Background Local 1617 and Council Number 214 represent employees of the United States Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, San Antonio (“Agency”). Appellant Celestino was an employee of the Agency. At all relevant times, relations between Appellants and the Agency were covered by the Master Labor Agreement (“MLA”). In April 1999, employees of the Agency, who were represented by Local 1617, brought a grievance against the Agency alleging that they were entitled to Environmental Differential Pay (“EDP”) because of ex- posure to asbestos. The Agency denied the grievance. Local 1617 invoked arbitration, as authorized by the MLA. After a lengthy arbitration, the arbitrator ruled that the employees were entitled to limited EDP. Appellants and the Agency filed exceptions to the arbitration award with the FLRA, under 5 U.S.C. § 7122. The FLRA is an independent agency whose responsibilities include resolving exceptions to arbitration awards. The FLRA set aside the arbitration award, finding that the award was deficient. Appellants moved for reconsideration. The FLRA denied that motion. Appellants sued FLRA, alleging that FLRA had violated the Federal Labor Management Relations Act’ when it overturned the arbitrator’s decision. FLRA moved under Fed.R.Civ.P. 12(b)(1) to dismiss for lack of subject matter jurisdiction. Appellants moved for summary judgment. The district court granted FLRA’s Rule 12(b)(1) motion, denied '5 U.S.C. § 7101 et seq. 3a Appellants’ motion for summary judgment, and entered a judgment dismissing Appellants’ lawsuit. Appellants timely appealed. Discussion Standard of review This court reviews de novo the grant of a Rule 12(b4(1) motion.” The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction;? in this case, the Appellants. A Rule 12(b)(1) motion may be granted only when it appears certain that the plaintiffs cannot prove any set of facts in support of their claim that would entitle them to relief.* For purposes of analyzing a Rule 12(b)(1) motion this court takes the plaintiff's alleged facts as true.> Jurisdiction to review FLRA decisions The FLRA may change an arbitrator’s award if it finds 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.” There is no statutory provision providing for review of the FLRA’s decisions on arbitration awards,’ Appellants argue that despite the lack of a provision for federal court review of the FLRA’s decisions, the district * Hebert v. United States, 53 F.3d 720, 722 (Sth Cir.1995). * McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). * Benton v. United States, 960 F.2d 19, 21 (Sth Cir. 1 992). ° Saraw Partnership v. United States, 67 F.3d 567, 569 (Sth Cir. 1995). ° 5 U.S.C. § 7122(a). "Asa general matter, parties may seek review of FLRA decisions in federal courts of appeals. 5 U.S.C. § 7123(a). However, they may not seek review of final FLRA decisions about arbitrator’s awards unless the order involves an unfair labor practice. /d 4a court had jurisdiction to hear this case under the Supreme Court’s decision in Leedom v. Kyne.* In Leedom, a group of professional employees objected to a decision of the National Labor Relations Board (“NLRB”) that combined professional and non-professional employees into one bargaining unit.” The employees sued the NLRB in district court, alleging that the NLRB had violated a National Labor Relations Act provision explicitly prohibiting such combinations without prior approval of the professional employees.” The district court found that jurisdiction existed, and the circuit court affirmed that decision.'' The Supreme Court also affirmed jurisdiction, finding that the NLRB had acted “in excess of its delegated powers and contrary to a specific prohibition in the [National Labor Relations Act].”!? The Court reasoned that if it found jurisdiction did not exist, then the rights of the professional employees would be sacrificed, and that “where, as here, Congress has given a ‘right’ to the professional employees it must be held that it intended that right to be enforced. . . This exception, however, is very narrow. In Boire v. Greyhound Corporation, the plaintiffs attempted to challenge a NLRB finding that independent contractors were employees of the hiring corporation, despite a National Labor Relations Act statute excluding independent contractors from the definition of employee.'* In Boire, the Supreme Court held 8 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). ” Id. 10 Id 11 Id 12 Td. at 184, 79 S.Ct. 180. '3 Td at 185, 79 S.Ct. 180. \4 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). ia 5a that deciding whether someone met the definition of employee was a factual question and that there was no federal jurisdiction to review such a decision.'> The Court explained that the Leedom exception is a narrow one, not to be extended to permit plenary district court review of [NLRB] orders .. . whenever it can be said that an erroneous assessment of the particular facts before the [NLRB] has led it to a conclusion which does not comport with the law.'® In Board of Governors of the Federal Reserve System vy. MCorp Financial, Inc., the Supreme Court held that juris- diction existed to review an agency action alleged to have exceeded the agency’s statutory authority.'’ The Supreme Court found that there was no jurisdiction where the agency’s authorizing statute indicated a congressional intent to deny district court review, and the statute provided a meaningful and adequate opportunity for judicial review. '® This court has analyzed the Leedom exception and ex- plained that it is “narrow and rarely used.”'? Further, the exception should be used to correct only egregious error, and does not allow federal courts to review whether an agency responsible for implementing a statute has misinterpreted that statute.”” Instead, the Leedom exception allows jurisdiction “only in a very narrow situation in which there is a plain violation of an unambiguous and mandatory provision of the statute.””! Appellants argue that the FLRA decision fits into this narrow category of violations. Under the Leedom ex- 15 Id ' Id. at 481-481, 84 S.Ct. 894. "$02 U.S. 32, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991). 8 Td. Russell v. Nat'l Mediation Bd., 714 F.2d 1332, 1340 (Sth Cir. 1983). *° Am. Airlines, Inc. v. Herman, 176 F.3d 283, 292 (Sth Cir. 1999). *! Herman, 176 F.3d at 293. 6a ception, jurisdiction will exist only if FLRA plainly violated unambiguous and mandatory statutory provisions.” As explained below, Appellants have not shown that the FLRA’s decision violated any statutory provision. Propriety of the FLRA decision under 5 U.S.C. § 7122(a)(2) Appellants contend that the FLRA violated 5 U.S.C. § 7122(a)(2) by overturning an arbitrator’s award. Spe- cifically, Appellants argue that FLRA should have given special deference to the arbitration award because it was based on the arbitrator’s interpretation of a collective bargaining agreement. Section 7122 provides that: (a) Either party to arbitration under this chapter may file with the [FLRA] an exception to any arbitrator’s award pursuant to the arbitration. . . . If upon review the [FLRA] finds that the award is deficient— (1) because it is contrary to any law, rule, or reg- ulation; or (2) on other grounds similar to those applied by Fed- eral courts in private sector labor-management relations; the [FLRA] may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations. The FLRA found that the award was deficient because it was contrary to law.. The FLRA maintains that while it overturned the arbitrator’s legal conclusions, it deferred to the arbitrator’s findings of fact. Pursuant to § 7122(a)(1), the FLRA is authorized to change an arbitrator’s award if the 22 See id. 7a FLRA finds the award is contrary to any law, rule, or regulation.”’ In fact, the District of Columbia Circuit has held that if an arbitrator’s award is challenged because it is contrary to a law, rule or regulation, the FLRA must conduct a de novo review.”4 The FLRA decision references the arbitrator’s findings that the parties to arbitration had not agreed to a specific standard for entitlement to EDP. Based on this finding, the arbitrator concluded that there was a conflict between the Agency’s regulations and the MLA between the parties. The arbitrator next held, as required when a regulation conflicts with a labor agreement,” that the regulation could not be applied. The FLRA decision does not challenge the arbitrator’s finding that the MLA did not specify an EDP threshold. Rather, FLRA contends that the arbitrator was wrong to dismiss the Agency’s regulations when the MLA did not present any regulations of its own that could have conflicted with the Agency’s regulations. in response, Appellants argue that the lack of an agreement on specific regulations means that the threshold for EDP was to be set on a case-by-case basis. To support this point, they quote the arbitrator’s finding that the Union representing the Agency employees specifically bargained to avoid including an EDP threshold in the MLA, so that EDP could be awarded on a case-by-case basis. Contrary to Appellants’ assertions, however, this finding relates to the Union’s bargaining position, not the binding final product of that bargaining—the MLA. Appellants do not cite any requirement in the MLA that EDP is to be determined on a case-by-case basis, nor do 7 is Dep't of Treasury v. Fed. Labor Relations Auth., 43 F.3d 682, 686-87 (D.C.Cir. 1994). 4 Td. at 686-87. > See US. Dep't of the Army, Ft. Campbell Dist., Third Region, Ft. Campbell, Ky., 37 FLRA 186, 195, 1990 WL 140089 (1990). 8a they assert that the arbitrator found such a requirement. The arbitrator’s findings about the Union’s bargaining goals are irrelevant to determining whether the MLA conflicts with Agency regulations. Therefore, FLRA did not contradict a factual finding by the arbitrator when it determined that the MLA was silent on the appropriate method of determining EDP. Rather, FLRA applied its own review of the applicable law. The FLRA’s binding precedent dictates that in the absence of an agreed- upon regulation the Agency’s owi regulation governs.”° Thus, FLRA acted within its authority in determining that Agency regulations govern the assessment of EDP in this case, where there was no other agreement governing that assessment. This court does not have jurisdiction over FLRA decisions that are made pursuant to FLRA’s authority. The FLRA decision and congressional intent Appellants next contend that congressional intent will be thwarted unless courts have subject matter jurisdiction to review FRLA decisions about arbitration awards. Appellants maintain that without district court review there will be no mechanism to ensure that FLRA does not reach beyond what Congress intended to be its very limited right to alter arbitration awards. Appellants do not cite any legislative history to support this position. Rather, they argue that as a general matter, expedition of dispute resolution and the finality of arbitration decisions would be undermined without district court review of FLRA decisions. ° U.S. Dep’t of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186, 195, 1990 WL 140089 (1990) (agency rules and regulations “govern the disposition of matters to which they apply . .. when the rules and regulations do not conflict with provisions of an applicable collective bargaining agreement”). 9a Appellants cite a series of three Supreme Court opinions, the Steelworkers Trilogy,”’ to support the proposition that employment arbitrations are to be given a high degree of deference. The Steelworkers T; rilogy opinions, however, deal with federal court review of employment arbitration decisions, not federal court review of FLRA decisions. The Steelworkers Trilogy opinions do not provide guidance on this court’s jurisdiction over FLRA decisions. Instead, this court must rely on the statutory language that specifically explains when review is appropriate. Appellants’ argument about congressional intent is uncon- vincing in light of the Statutory scheme surrounding the FLRA. Congress explicitly provided for review of FLRA decisions under 5 U.S.C. § 7123. This provision also prohibits review when the FLRA decision involves an order by an arbitrator, unless the order involves an unfair labor practice. Section 7123 evidences Congress’s intent that only certain FLRA decisions should be reviewed. There is no reason to assume a different congressional intent from that stated on the face of the statute. Therefore, this court finds it does not have jurisdiction to hear this case based on congressional intent. Propriety of the FLRA decision under 5 U.S.C. § 7101 Lastly, Appellants argue that the FLRA decision under0 mined all collective bargaining and therefore violated 5 U.S.C. § 7101, This argument essentially reiterates Appel- lants’ argument asserting that the FLRA violated 5 U.S.C. § 7122. Appellants contend that the FLRA undermined collective bargaining by replacing an agreed-upon rule with a *” United Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). 10a rule created by an agency. As discussed above, there is no evidence that the MLA included a rule specifying when to award EDP pay, nor did the arbitrator conclude that there was such a rule. Therefore, Appellants’ argument that an agreed- upon rule was ignored fails. There is no jurisdiction for this court to hear this appeal based upon a violation of 5 U.S.C. § 7101. Conclusion Appellants fail to demonstrate that FLRA plainly violated a mandatory and unambiguous statutory provision. Accord- ingly, the district court correctly found that it lacked subject matter jurisdiction over the dispute and dismissed the case under Rule 12(b)(1). Therefore, this court AFFIRMS the district court’s judgment dismissing Appellants’ lawsuit. AFFIRMED. lla APPENDIX B UNITED STATES DISTRICT COURT, W.D. TEXAS, SAN ANTONIO DIVISION No. Civ.A.SA-03-CA-58-FB AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1617, Arthur Celestino, and American Federation of Government Employees, Council Number 214, Plaintiffs, V. FEDERAL LABOR RELATIONS AUTHORITY, Defendant. Oct. 21, 2003 Michael Putman, Putman & Putman, San Antonio, TX, Hal Keith Gillespie, Gillespie, Rozen, & Watsky, P.C., Dallas, TX, for Plaintiffs. Raymond A. Nowak, U.S. Attorney’s Office, San Antonio, TX, William R. Tobey, David M. Smith, Office of the Solicitor, James F. Blandford, Federal Labor Relations Authority, Washington, DC, for Defendant. ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE BIERY, J. Before the Court is the Report and Recommendation of the United States Magistrate Judge (docket no. 25) and plaintiffs’ written objections thereto (docket no. 29). ee 12a ~ Where no party has objected to a Magistrate Judge’s Report and Recommendation, the Court need not conduct a de novo review of the Report and Recommendation. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”). In such cases, the Court need only review the Report and Recommendation and determine whether it is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989). On the other hand, any Report and Recommendation to which objection is made requires de novo review by the Court. Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (Sth Cir.1987). The Court has thoroughly analyzed the plaintiffs’ submis- sion in light of the entire record. As required by Title 28 U.S.C. § 636(b)(1)(c), the Court has conducted an inde- pendent review of the entire record in this cause and has conducted a de novo review with respect to those matters raised by the objections. After due consideration, the Court concludes plaintiffs’ objections lack merit. This case involves the interpretation of statutes governing an administrative process which is similar to the substantial evidence rule applied in social security cases. At the thresh- old, plaintiffs argue the report erroneously recommends applying the wrong standard of review. Consistent with plaintiffs’ arguments, the report does recommend that the Court accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of plaintiff. The first amended complaint itself is approximately two inches in 13a thickness, containing six attachments, A through F, which include: the Master Labor Agreement between the AFGE and the Air Force Material Command; the October 9, 2001 decision of the arbitrator; the April 7, 2002 supplemental order and attached time billing statement; the September 11, 2002 orders of the Authority; September 11, 2002 statement of service by the Authority and November 13, 2002 order denying the request for reconsideration by the Authority; and November 13, 2002 statement of service by the Authority. Pursuant to settled law, these attachments were and are considered to be part of the first amended complaint when accepting as true the factual allegations of the complaint and construing them in the light most favorable to plaintiffs. See Fed. R. Civ. P. 10(c); Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996).' The Magistrate Judge reviewed all the submissions of all parties in preparing a report on subject matter jurisdiction, as did this Court, in informing itself as to the issues plaintiffs were presenting to the Court for resolution on the merits. ' Few other evidentiary materials were submitted by the parties on their cross-motions. Defendant’s motion to dismiss or for summary judgment appends only the three decisions of the Authority at issue, as they appear in the Authority’s reporter, 58 FLRA Nos. 13, 14 and 47 (Sept. 11, 2002 and Nov. 13, 2002) (docket no. 3, attachments). Defendant also submitted a statement of material facts not in dispute (docket no. 4). Plaintiffs’ response to defendant’s motion and piaintiffs’ cross-motion for summary judgment append virtually identical affidavits from Mr. Joseph A. Gillespie, an attorney for plaintiffs, in which plaintiffs incorporate by reference all exhibits to the first amended complaint (docket no. 9, attach- ment; docket no. 21, attachment). Defendant’s response to plaintiffs’ cross-motion forwards OPM Compensation and Leave Decision, Case No. S001371 (May 12, 1998), in support of defendant’s argument that, con- trary to plaintiffs’ argument that the Authority’s decision and its reliance on the Agency’s regulation usurps the authority of OPM, provides that specific judgments as to EDP entitlements are left to the discretion of the individual agencies (docket no. 16). l4a Plaintiffs assert that the report “fails to analyze the Arbitrator’s Award and Opinion” (objections at 9) or other key pieces of evidence submitted by plaintiffs through the first amended complaint. Substantive issues presented by the parties were considered to the extent they related to an assessment of subject matter jurisdiction. It is not necessary for the report to discuss all of those facts when it identifies the aspects of the parties’ disputes material to a resolution of subject matter jurisdiction. The arbitrator’s first decision, for example, numbers more than 200 pages. Indeed, plaintiffs’ objections to the report, which numbers 43 pages, arguably contains little analysis of the arbitrator’s decisions, yet is sufficient to state the bases of plaintiffs’ strongly differing views on the determination of no jurisdiction. Analogously, plaintiffs assert that “the Court must deter- mine the merits of plaintiffs’ claims in order to decide whether or not Leedom v. Kyne jurisdiction exists” (objec- tions at 16). Citing Williamson v. Tucker, 645 F.2d 404, 415 (Sth Cir. 1981), plaintiffs argue that when a “defendant’s challenge to the court’s jurisdiction is also a challenge to the existence of a federal cause of action, the proper course of action is for the district court is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of plaintiffs’ case” (objections at 17)? But, in this case, under ? In Williamson, the issue was whether joint venture interests and notes were “securities” within the meaning of the Securities Act of 1933 and the Securities and Exchange Act of 1934. The district court dismissed the case for lack of subject matter jurisdiction, with minimal explanation that the documents at issue were not “securities,” the matter in dispute, 645 F.2d at 407, 410. The Fifth Circuit reversed the dismissal for lack of subject matter jurisdiction noting: “In this case it is clear that the jurisdictional issue reaches the merits of plaintiff's case; if the joint venture interests and notes are not securities, there is not only no federal jurisdiction to hear the case but also no federal cause of action on the stated facts.” /d. at 416. The Fifth Circuit concluded that plaintiffs’ claims “are not so clearly immate- rial or insubstantial as to justify their dismissal... .” Jd. at 429. 15a the general rule of 5 U.S.C. § 7123, there is no subject matter jurisdiction in this Court over plaintiffs’ claims unless the “narrow and rarely used”? exception set out in Leedom vy. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), applies. Williamson does not deal with the situation governed by Kyne and does not address the determination of whether an exception to a general lack of subject matter jurisdiction exists. Further, although defendant did move to dismiss under both Rules 12(b)(1) and (6), the basis of its motion to dismiss for failure to state a claim was lack of subject matter jurisdiction; the report recommends dismissal based on a lack of subject matter jurisdiction. Neither defendant’s motion to dismiss nor the report ultimately speak to the issue of whether plaintiffs have or could state a federal cause of action, only that the Court lacks subject matter jurisdiction over the claims asserted.’ But, the report does conclude plaintiffs have not demonstrated the Authority acted in excess of its statutory powers, violated a clear mandate of its own enabling statute, and made an “egregious error,” a finding necessary for subject matter jurisdiction. To make a finding of no egregious error, the Court necessarily was required to analyze fully plaintiffs’ claims and arguments. Nevertheless, even if under Williamson this Court is required to consider the merits of plaintiffs’ > Russell v. National Mediation Bd., 714 F.2d 1332, 1340 (Sth Cir. 1983) (quotation omitted), cert. denied sub, nom. Brotherhood of Ty, Airlines and S.S. Clerks, Freight Handlers, Express & Station Handlers vy. Russell, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984). * For example, a claim of an unfair labor practice likely would state a claim for relief. Similarly, a claim arising under the United States Consti- tution might state a claim for relief. See National Treasury Employees Union v. FLRA, 112 F.3d 402, 404 (9th Cir. 1997) (“The House Confer- ence Report [to § 7123] notes that unless a decision relates to an unfair labor practice, ‘decisions of the Authority are final and conclusive and not subject to further judicial review except for questions arising under the Constitution.”’) (citation omitted). Plaintiffs’ first amended complaint does not allege an unfair labor practice or a claim arising under the Constitution. Ce a a a ee l6a claims when deciding subject matter jurisdiction to unspeci- fied degree greater than that already undertaken, plaintiffs do not show how such further consideration of the merits of their claims demonstrates the existence of subject matter jurisdic- tion. If, as plaintiffs request, the Court simply finds jurisdic- tion to exist and deals with defendant’s objections as an attack on the merits of plaintiffs’ case, the Kyne exception would swallow the general rule of no jurisdiction. Virtually any plaintiff who seeks to appeal a final FLRA decision presumably would have asserted a claim on the merits as to why the Authority’s decision should be set aside or modified and any such claim could be said to be intertwined with the assessment of whether an egregious error, sufficient to invoke the Kyne exception, existed. This Court has fully informed itself as to plaintiffs’ claims and the parties’ contentions to determine if the Kyne exception has been satisfied. To that extent, the Court has considered the merits of plaintiffs’ claims and in the process has viewed all factual allegations in the first amended complaint and its attachments viewed as true.” However, once the Court decides it lacks subject matter jurisdiction, no further determination of the merits of the dispute is undertaken nor, absent jurisdiction, is aporopriate. At the center of plaintiffs’ objections are their arguments that the report misapplies the Kyne exception. It is clear that section 7123 generally precludes District Courts from review- * If, as plaintiffs urge, the merits of plaintiffs’ claims are so intertwined with the determination of jurisdiction that they must be considered in tandem, then the Court is no longer required to accord “‘presumptive truthfulness”’ to the allegations in plaintiffs’ complaint “‘and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”’ Williamson, 645 F.2d at 413 (citation omitted). As the plaintiffs’ summary judgment proof is confined to the attachments to the first amended complaint, see note | above, no additional evidence would be required to be considered by the Court to grant defendant’s companion motions to dismiss for failure to state a claim or for summary judgment. 17a ing the Authority’s decisions on exceptions to an arbitrator’s award (unless, for example, an unfair labor practice exists).° In Leedom vy. Kyne, the United States Supreme Court recog- nized an exception to section 7123’s general rule of no jurisdiction if the Authority acted “in excess of its delegated powers and contrary to a specific prohibition in the Act.” 358 U.S. at 188-89; see also Board of Governors of the Federal Reserve System v. MCorp Financial, Inc., 501 U.S. 32, 34, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). The Fifth Circuit has stated that, under Kyne, district courts are accorded jurisdic- tion “only if the agency’s interpretation ‘is infused with error which is of a summa or magna quality as contraposed to decisions which are simply cum error. Only egregious error melds the [agency’s] decision into justiciability.”” American Airlines, Inc. v. Herman, 176 F.3d 283, 292 (Sth Cir. 1999) (citation omitted). Here, the Authority accepted the arbitrator’s findings that [c]learly, there is no specific standard for entitlement to EDP [abbreviation for “environmental differential pay”’] set forth in the contract’ and that the parties had not ‘agree[d] to a specific standard for entitlement to EDP” (docket no. » 3 exhibit D at 3). The Authority then applied an Agency regulation, that is, a federal regulation within the meaning of section 7122(a), to set the standard for EDP.’ Plaintiffs have not demonstrated that the Authority’s decision to apply a regulatory standard for EDP, when the collective bargaining agreement did not expressly provide any specific standard for 666 ° By relying on the Kyne exception in their objections to the report, plaintiffs appear to concede that the Court lacks subject matter jurisdiction unless the Kyne exception applies. ” This case seeks review of the FLRA’s decision on exceptions to an arbitrator’s award, not a direct challenge to the authority of the Agency to promulgate the regulation in question. Nor does this case address any issue relating to the lack of any amendments to the CBA to provide a specific standard for EDP. 18a EDP (even an express “case by case” standard), was in excess of statutory powers, in violation of a clear mandate of its own enabling statute, or an egregious error. Therefore, the Kyne exception is not applicable and this Court lacks subject matter jurisdiction to resolve the merits of plaintiffs’ disputes and award the relief sought by plaintiffs. In sum, 5 U.S.C. § 7123(a) precludes this Court from reviewing the Authority’s decision to vacate the arbitration awards at issue in this case. Although the United States Supreme Court in Kyne recognized a possible exception to section 7123’s preclusion of jurisdiction, plaintiffs have not shown that the Authority acted in excess of its statutory powers, violated a clear mandate of its own enabling statute, or committed an egregious error sufficient to invoke the Kyne exception. Therefore, this Court lacks subject matter jurisdic- tion to resolve the merits of plaintiffs’ claims and to award plaintiffs the relief sought. Defendant’s motion to dismiss for lack of federal subject matter jurisdiction filed pursuant to rule 12(b)(1) of the Federal Rules of Civil Procedure shall be granted. - IT IS THEREFORE ORDERED that the Report and Recommendation of the United States Magistrate Judge (docket no. 25) is ACCEPTED pursuant to 28 U.S.C. § 636 (b)(1) such that: (a) Defendant’s motion to dismiss (contained within docket no. 3) for lack of subject matter jurisdiction pursuant to rule 12(b)(1) of the Federal Rules of Civil Procedure is GRANTED and plaintiffs’ cause of action is DISMISSED; (b) Defendant’s motion to dismiss (contained within docket no. 3) for failure to state a claim pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure and alternative motion for summary judgment (contained within docket no. 3) are DENIED as MOOT; and 19a (c) Plaintiffs’ cross-motion for summary judgment (docket no. 21) is DENIED. IT IS FURTHER ORDERED that the above-styled and numbered cause is DISMISSED for lack of subject matter jurisdiction. Motions pending with the Court, if any, are dismissed as moot. It is so ORDERED. 20a APPENDIX C F.L.R.A. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1617 (Union) and UNITED STATES DEPARTMENT OF THE AIR FORCE SAN ANTONIO AIR LOGISTICS CENTER KELLY AIR FORCE BASE SAN ANTONIO, TEXAS (Agency) 0-AR-3469 September 11, 2002 Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members! DECISION I. Statement of the Case This matter is before the Authority on exceptions to an award of Arbitrator Larry D. Smith filed by both the Agency and the Union under § 7122(a) of the Federal Service Labor- Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Agency filed an opposition to the Union’s exception, and the Union filed an opposition to the Agency’s exceptions. In addition, the Agency has re- quested that the Authority permit the parties to present oral argument in support of their positions. The Union filed a grievance over the Agency’s failure to pay unit employees environmental differential pay (EDP). The Arbitrator sustained the grievance and awarded em- ployees backpay. We find that the award is deficient, and we set the award aside. ‘Member Pope’s dissenting opinion is set forth at the end of this decision. 2la II. Background and Arbitrator’s Award The Union filed a grievance over “‘the Agency’s failure and/or refusal to pay environmental pay (EDP) to the Union’s Bargaining Unit employees represented by the Union as a result of asbestos exposure at the Facility [Kelly Air Force Base] since March 9, 1975.”* Award at 97 (quoting the grievance).” The Arbitrator sustained the grievance and awarded unit employees backpay. In sustaining the grievance, the Arbitrator considered the threshold issue of the standard for entitlement to EDP for exposure to asbestos. In particular, the Arbitrator examined whether the parties had agreed to apply the permissible exposure level (PEL) of the Occupational Safety and Health Administration (OSHA) as the standard for entitlement to EDP for exposure to asbestos. He explained the “huge significance” of this issue, as follows: If the Agency’s position that the parties agreed to use the OSHA PEL as the applicable EDP standard is embraced, the Union’s grievance is doomed. While there are occasions of OSHA violations in the history of asbestos use at Kelly [Air Force Base], such episodes are rare and isolated. In fact counsel for the Union . . . admitted that if the case was decided in favor of the Agency insofar as the OSHA PEL being the standard for EDP was con- cerned, then the Union’s fate was sealed to the down- side. Id. at 122. The Arbitrator first considered whether the parties’ collec- tive bargaining agreement provided a standard for the award of EDP for exposure to asbestos. He noted that the agree- ? Kelly Air Force Base was closed on July 13, 2001. See Regional Director’s Decision and Order in United States Dep’t of the Air Force, Air Force Materiel Command, Kelly Air Force Base, Tex., Case No. DA-RP- 01-0005, application for review denied, 57 FLRA 749 (2002). 22a ment’s only specific reference to EDP is contained in Article 26, which provides: “In accordance with Federal Law, Government-wide regulation and this Agreement, an environ- mental differential will be paid to eligible wage-grade employees who are exposed to hazard or physical hardships.” Id. at 112 (quoting the agreement). From this reference, the Arbitrator concluded that “[c]learly, there is no specific standard for entitlement to EDP set forth in the contract,” id., and that the parties had not “agree[d] to a specific standard for entitlement to EDP,” id. at 221. In addition, the Arbitrator considered the claim of the Agency that the bargaining history of the agreement evidences that the parties agreed to the OSHA PEL as the standard for entitlement to EDP for exposure to asbestos. After examining the bargaining history, he found the history insufficient to establish that the parties had agreed to the OSHA PEL as the standard for EDP for exposure to asbestos. The Arbitrator also considered the claim of the Agency that the conduct of the parties subsequent to the execution of the initial collective bargaining agreement confirms the existence of an agreement to allow the OSHA PEL to govern entitle- ment to EDP for exposure to asbestos. In considering this claim, the Arbitrator examined the regu- lation promulgated by the Air Force Logistics Command (AFLC) (now the Air Force Materiel Command (AFMC)) (the headquarters command of the Agency) on November 3, 1987, entitled “AFLC Supplement to AF Supplement to FPM Supplement 532-1.” The regulation stated, in pertinent part, as follows: S8-7a(1). AFLC definition of “practically eliminated.” Reduction of exposure to unusually severe hazards, physical hardships or unusually severe working con- ditions to a level consistent with accepted standards (e.g. AFOSH standards, AF manuals and regulations, OSHA or other recognized national consensus standards). 23a As noted by the Arbitrator, the regulation was repromulgated on February 11, 1997, primarily to change the command acronym. AFMC Supplement to AF Supplement to FPM Supplement 532-1 provides, in pertinent part, as follows: S8-7a(1). AFMC definition of “practically eliminated.” Reduction of exposure to unusually severe hazards, physical hardships or unusually severe working condi- tions to a level consistent with accepted standards AF instructions, Occupational Health and Safety Admini- stration (OSHA) or other recognized national consensus standards. The Arbitrator found that the AFLC/AFMC Supplements provide that the OSHA PEL is the standard for entitlement of unit employees to EDP for exposure to asbestos. See Award at 127, 134. However, he ruled that “the manner in which the Agency proceeded insofar as EDP was concerned, is not binding upon the Union, unless the evidence establishes that the Union consented to the standard.” Jd. at 127. In this respect, the Arbitrator found that the evidence failed to support any agreement or acquiescence by the Union to the Agency’s use of the OSHA PEL. Apart from this finding, the Arbitrator did not specifically address the effect of the AFLC/AFMC Supplements in this case. In reviewing the parties’ Master Labor Agreement (MLA), the Arbitrator found that “there is no specific standard for entitlement to EDP set forth in the contract.” Jd. at 112. He found that the “words of the MLA were crafted with the apparent intent to incorporate the bargaining objective of the Union to avoid any definition of ‘practically eliminated.”* /d. at 136-37. As a result of these determinations, the Arbitrator ruled that “there is insufficient evidence to establish that the parties agreed that the OSHA PEL would serve as the trigger point for EDP.” /d. at 137. Thereafter, on review of FLRA case precedent, the Arbitrator ruled that in view of his determination that “the 24a parties did NOT ever agree to a specific standard for entitlement to EDP,” he was “left with the responsibility and authority to determine whether the bargaining unit employees . . . are entitled to EDP.” Jd. at 221 (emphasis in original). He stated that his “finding that the parties did not voluntarily consent to the use of the OSHA PEL as the standard for entitlement to EDP, does not necessarily mean that the OSHA PEL should not be the standard adopted by the Arbitrator.” Jd. at 222. However, on review of the record, he rejected the use of the OSHA PEL as the standard. Stating the standard in terms of Appendix A to 5 C.F.R. § 532.511, he found that EDP should be paid to any employee “who works in an area where airborne concentrations of asbestos fibers could possibly result in damage or sickness and safety measures or devices have not essentially removed the possibility of such damage or sickness.” /d. at 240. Addressing the issue of remedy, the Arbitrator found that the grievance was untimely, but that the Agency contributed to its untimeliness. For purposes of calculating the appro- priate amount of backpay, the Arbitrator “apportion[ed] fault on an 80% and 20% basis.” Id. at 282. Accordingly, he ruled that “[t]he Union’s claim, from 6 years prior to the filing of the grievance until 20 calendar days prior to the filing of the grievance, is discounted to 20%.” Id. He also found that there were mitigating factors that required a further reduction in the amount of backpay awarded. For this reason, he ruled that “EDP is to be discounted to 50% from 6 years prior to the filing of the grievance until the present.” Jd. at 283. III. Positions of the Parties A. Agency’s Exceptions The Agency contends that the award is deficient on the ground that it is contrary to regulation. In this regard, the Agency contends that “[t]he Arbitrator’s conclusion that the OSHA PEL was not the proper level for determining payment 25a of environmental differential pay is contrary to the standard established by a command-wide agency regulation issued at the level of exclusive recognition.” Exceptions at 8. The Agency maintains that “[t]he Arbitrator erred . . . when he failed to recognize the AFMC regulation which defined the level at which asbestos EDP would be paid. Therefore, the Arbitrator’s decision is deficient . . . under 5 U.S.C. {§] 7122(a)(1).” Id. The Agency notes that under United States Dep’t of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186 (1990) (Ft. Campbell), an award is deficient when it conflicts with an agency regulation that governs the matter in dispute. The Agency maintains that the AFLC/AFMC Supplements govern the matter in dispute and specify that the OSHA PEL is the standard for entitlement to EDP for exposure to asbestos. In this regard, the Agency contends that the Authority has “made clear that regulations setting levels of exposure that warrant payment of EDP act as a specific limit on an [a]rbitrator’s authority to otherwise independently determine such a level[.]” Jd. at 11, citing AFGE Local 2250, 52 FLRA 320, 323 (1996) (“in the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties, the arbitrator has the authority to determine the threshold quantitative level of exposure for the payment of EDP”). Thus, according the Agency, “it is clear that an AFMC regulation establishing the trigger level of exposure for EDP must be properly recognized and applied by the Arbitrator.” Jd. In arguing that the AFLC/AFMC Supplements govern, the Agency maintains that the Arbitrator found that the Supple- ments provide that the OSHA PEL is the Agency’s standard for entitlement to EDP for exposure to asbestos. The Agency notes that the Union conceded, and the Arbitrator found, that the grievance would have been denied if the OSHA PEL were 26a the standard for entitlement to EDP for exposure to asbestos. The Agency also argues that the Supplements govern because they are not inconsistent with the parties’ master labor agreement. In this regard, the Agency notes that the AFMC Supplement sets the standard for payment at the OSHA PEL, and the Arbitrator interpreted the MLA as not setting forth any specific standard for entitlement to EDP. According to the Agency, “[s]etting ‘no specific standard’ does not conflict with setting a standard at the PEL.” /d. at 18. The Agency also contends that the award is contrary to law and that it is based on nonfacts. B. Union’s Opposition The Union contends that the Agency has failed to establish that the award is deficient. The Union asserts that the Agency has failed to establish any controlling regulation which specifies that employees must prove exposure to asbestos in excess of the OSHA PEL to be entitled to EDP. The Union argues for a number of reasons that the Supplements are not controlling. First, the Union argues that the Supplements are inconsis- tent with the terms of other Agency regulations “which do not reference or incorporate the OSHA PEL.” Id. at 23. Second, the Union argues that the Supplements are “contrary to the Agency’s historical handling and determination of EDP to employees for asbestos exposure which have not entailed any reference to or utilization of the OSHA PEL as the standard for EDP.” /d. at 24. Third, the Union argues that the Supple- ments are “inconsistent with the presentations and explana- tions of the criteria for EDP which the Agency has historically published to employees at KAFB [Kelly Air Force Base] for at least the past 20 years that did not reference and were, in fact, inconsistent with the utilization of the OSHA PEL as the standard for EDP[.]” /d. at 25. Fourth, the Union argues that the Supplements are “inconsistent with Wasa al ey” le cielonndalled Gs 27a internal Agency memoranda which state that OSHA stan- dards are not applicable to KAFB.” /d. at 26. Fifth, the Union argues that the Supplements do not govern because they conflict with the master labor agreement. The Union contends that “[t]he Agency contractually agreed through the MLA that 5 C.F.R. [part] 532, not the AFMC Supplement, established the standard and criteria for EDP.” Id. at 27 (emphasis in original). The Union maintains that Article 26 of the agreement plainly establishes that EDP is to be paid in accordance with law and Government-wide regulation. The Union claims that 5 C.F.R. § 532.511 is the only Government-wide regulation that establishes standards for the payment of EDP because the AFLC/AFMC Supple- ments are clearly not Government-wide regulations. In addition, the Union maintains that the Supplements conflict with the agreement because “the arbitrator found and interpreted the contract to mean that the parties agreed through the [MLA] that the OSHA PEL would not be the standard for EDP.” /d. at 41. Sixth, the Union argues that “[t]he Agency cannot by unilateral and self-serving regulation establish criteria for entitlement to EDP: (a) that [are] different than the criteria established by the Back Pay Act and EDP regulations; and (b) which the Union does not agree, through contract, to accept and utilize.” Jd. at 40. Seventh, the Union argues that there are “practical and compelling safety reasons for not tying EDP to the OSHA PEL.” /d. at 47. The Union maintains that OSHA has determined that exposure to asbestos at levels below the PEL still presents significant risks. Thus, the Union argues this determination precludes the Agency’s position that “only exposure above the PEL entails risk to employees of potential asbestos illness or injury.” Jd. at 50. Finally, the Union contends that the award is consistent with FLRA case precedent. The Union contends that F LRA case precedent holds that because Appendix A of 5 C.F.R. 28a part 532 does not set forth any specified level of exposure to asbestos required for the payment of EDP, an arbitrator is free to determine what exposure to asbestos entitles employees to EDP. See id. at 42-43. C. Union’s Exception The Union contends that the Arbitrator’s calculation of the amount of backpay is contrary to law and regulation. The Union argues that the Arbitrator’s reduction of backpay below the environmental pay differential of 8% for exposure to asbestos is inconsistent with the Back Pay Act and EDP regulations. D. Agency’s Opposition The Agency contends that in the event that the Authority does not find that the award is deficient on any basis asserted by the Agency in its exceptions, the Arbitrator’s calculation of the amount of backpay was within his authority. IV. Analysis and Conclusions A. Standard of Review The Agency contends that consistent with law, the AFLC/AFMC Supplements set the standard for payment of EDP and that the award is inconsistent with that standard. When a party’s exception disputes an award’s consistency with law and regulation, we review the questions of law and regulation raised by the award and the exception de novo. See, e.g., United States Dep’t of Heaith and Human Services, Centers for Medicare and Medicaid Services, Baltimore, Md., 57 FLRA 704, 706 (2002). Reviewing the questions of law and regulation raised by the award and the Agency’s exception de novo, we conclude that the Supplements permissibly set the standard for payment of EDP and that they governed the resolution of the grievance because they are specifically linked to the payment of EDP and because they are not in conflict with the collective bargaining agreement. 29a B. The AFLC/AFMC Supplements govern the payment of EDP. 1. The standard for entitlement to EDP for exposure to asbestos can be prescribed by an agency regulation. While the Authority has had many EDP cases, it has not previously been presented with a case where an agency had prescribed the standard for entitlement to EDP by an agency regulation; an arbitrator did not apply the standard prescribed by the regulation in resolving a grievance over EDP; and the agency filed an exception to that award alleging that the award was deficient because it conflicted with the regulation. The first question raised by the Arbitrator’s award and the Agency’s exception is whether the standard for entitlement to EDP can be prescribed by an agency regulatic >. We conclude that it can be. The Authority has repeatedly and uniformly described the framework for determining entitlement to EDP for exposure to asbestos, as follows: Appendix A, which is identical to former Appendix J, does not set forth any specified level of exposure required for the payment of EDP. Accordingly, as was the case under Appendix J, the specific work situations for which EDP is payable are left to “local deter- mination, including arbitration.” E.g., United States Dep’t of the Army, Red River Army Depot, Texarkana, Tex., 53 FLRA 46, 51 (1997) (Red River Army Depot) (quoting AFGE Local 2280, 51 FLRA 620, 623 (1995); AFGE Local 1482, 50 FLRA 572, 574 (1995)). As noted by the Union in its opposition, the Authority has specifically held that an “arbitrator is free to determine the quantitative level of exposure for payment of EDP.” E. g., Red River Army Depot, 53 FLRA at 51. At the same time, the Authority has expressly limited that freedom by adding that the arbitrator is free to determine the level of exposure only 30a “[i]n the absence of a mandated quantitative level set by applicable tlinelaw or regulation or otherwise agreed to by the parties.” /d. (quoting Allen Park Veterans Admin. Med. Ctr., 34 FLRA 1091, 1101 (1990)). We find no basis for not interpreting the reference to “regulation” to include an agency regulation. As the Au- thority has expressly acknowledged, each Federal agency prescribes rules, regulations, and official declarations of policy to govern and control the resolution of matters to which they apply within the agency. See Ft. Campbell, 37 FLRA at 193-94. Moreover, the Authority has indicated in two asbestos cases that an agency regulation would have been viewed as permissibly prescribing the standard for entitle- ment to EDP if the regulation had been sufficiently linked to the payment of EDP. See United States Gen. Services Admin., Kansas City, Mo., 38 FLRA 438, 445 (1990) (GSA); United States Dep’t of Justice, Bureau of Prisons, Fed. Corr. Inst., El Reno, Okla., 37 FLRA 559, 563 (1990) (FCI, El Reno). The decision in O’Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986) (O'Neal!) provides additional support for an agency being empowered to set, by regulation, the standard for entitlement to EDP for exposure to asbestos. In O’Neall, the court sustained the action of the Department of the Air Force in setting by regulation the standard of exposure to asbestos in order to be entitled to EDP at the same level as the OSHA PEL. In finding that the Department of the Air Force had acted reasonably, the court specifically ruled that deference was due the choice of the Department. See O’Neall, 797 F.2d at 1581 n.7. Accordingly, contrary to the Union’s arguments, Authority precedent and the court’s decision in O’Neall support the conclusion that an agency can prescribe by regulation the standard for entitlement to EDP for exposure to asbestos. 3la 2. The AFLC/AFMC Suppiements sufficiently link expo- sure at the OSHA PEL to the payment of EDP. A critical question raised by the Authority precedent discussed above is whether the AFLC/AFMC Supplements sufficiently link exposure at the OSHA PEL to the payment of EDP. We conclude that they do. Both GSA and FCI, El Reno indicate that a critical ques- tion in determining whether an agency regulation governs entitlement to EDP is whether the regulation is sufficiently linked to the payment of EDP. In this case, there is no dispute that the AFLC/AFMC Supplements provide that employees must be exposed to asbestos at, or in excess of, the level of the OSHA PEL in order to be entitled to EDP. The Agency clearly asserts that the Supplements set the level of exposure for EDP and notes that the Authority defers to an agency’s interpretation of its own regulations. In addition, the Arbitrator also viewed the Supplements as setting the level of exposure for EDP. The Arbitrator specifi- cally found that the Supplements provide that the OSHA PEL is the standard for entitlement to EDP for exposure to asbestos. See Award at 127, 134. Moreover, although the Union disputes that the Supplements govern the standard for EDP, the Union does not dispute that the Supplements link exposure at the OSHA PEL to the payment of EDP. The Authority has repeatedly held that “[a]n agency’s interpretation of its own regulation generally is controlling unless clearly erroneous or inconsistent with the regulation’s plain wording.” E.g., United States Dep’t of Transportation, Fed. Aviation Admin., 55 FLRA 797, 801 (1999) (FAA). We find that the Agency’s interpretation of the Supplements is controlling because it is neither clearly erroneous nor inconsistent with the plain wording of the Supplements. Accordingly, we conclude that the AFLC/AFMC Supple- 32a ments specifically link the payment of EDP to exposure at, or in excess of, the OSHA PEL. 3. The use of the OSHA PEL is appropriate as a standard for entitlement to EDP for exposure to asbestos. A question raised by the Union’s opposition is whether use of the OSHA PEL as a standard for entitlement to EDP is appropriate. We conclude that it is. In disputing that the Supplements govern the standard for EDP, the Union argues that there are “practical and compel- ling safety reasons for not tying EDP to the OSHA PEL.” Opposition at 47. The Union maintains that OSHA’s actual determinations preclude the Agency’s position that “only exposure above the PEL entails risk to employees of potential asbestos illness or injury.” Jd. at 50. The Union’s arguments are similar to arguments made by the employees in O’Neall and rejected by the court. The court in O’Neall was not persuaded of any material differences in the OSHA and EDP regulatory schemes which made it improper to look to OSHA for guidance in setting a standard for the level of exposure to asbestos in order to be entitled to EDP. In particular, the court rejected the argument that use of the OSHA PEL was inconsistent with the mandate of FPM Supplement 532-1 to compensate for working conditions involving unusually severe hazards. See O'Neal, 797 F.2d at 1582. In addition, although the Authority has never been presented with a case just like this one, the Authority has been presented with several cases in which the arbitrator applied the OSHA PEL to determine entitlement to EDP. In none of these cases did the Authority question whether the OSHA PEL was appropriate for use as an EDP standard. See NAGE Local R4-78, 56 FLRA 418 (2000); AFGE Local 2004, 55 FLRA 6 (1998); AFGE Local 2250, 52 FLRA 320 (1996); AFGE Local 2144, 51 FLRA 834 (1996); AFGE 33a Local 2280, 51 FLRA 620 (1995); AFGE Local 1482, 50 FLRA 572. 4. The AFLC/AFMC Supplements do not conflict with the collective bargaining agreement. Agency rules and regulations “govern the disposition of matters to which they apply . . . when the rules and regulations do not conflict with provisions of an applicable collective bargaining agreement.” Ft. Campbell, 37 FLRA at 195. The AFLC/AFMC Supplements clearly apply to the disputed matter of the standard for entitlement to EDP for exposure to asbestos by providing that the standard is the OSHA PEL. On the basis of the Arbitrator’s interpretation of the agreement, we find that the Supplements do not conflict with provisions of the agreement. The fact that the Supplements set the standard for entitlement to EDP for exposure to asbestos at the OSHA PEL does not conflict with the contractual obligation under Article 26 to pay EDP in accordance with law, Government- wide regulation, and the collective bargaining agreement, none of which prescribes a standard for the payment of EDP for exposure to asbestos. As the Arbitrator expressly ruled, “there is no specific standard for entitlement to EDP set forth in the contract,” award at 112, and the parties had not “agree[d] to a specific standard for entitlement to EDP,” id. at 221. Therefore, the Arbitrator interpreted the parties’ agree- ment as not setting forth a specific standard for entitlement to EDP. Where, as here, an agreement does not set a specific standard and an applicable agency regulation does set a specific standard, the agreement does not conflict with the agency regulation and the agency regulation governs the matter in dispute. See NAGE Local R12-33, 51 FLRA 541. 543 (1995) (an agency regulation governed the matter in dispute because it provided the “dispositive criteria” for 34a determining eligibility, while the agreement did not); United States Dep’t of the Army, Army Communications-Electronics Command, Ctr. for Command, Control and Communications Sys., Fort Monmouth, N.J., 46 FLRA 555, 558 n.4 (1992) (an agency regulation governed the matter in dispute because the collective bargaining agreement did “not substantively address” the matter in dispute); United States Dep’t of Veterans Affairs, Regional Office, Chicago, 38 FLRA 356, 358 (1990) (VA Chicago) (an agency regulation that permit- ted the agency’s actions governed the matter in dispute be- cause the collective bargaining agreement was “silent” on the matter). Accordingly, we find that the Supplements do not conflict with the agreement, as interpreted by the Arbitrator, and that they govern the matter in dispute as to what standard applies in this case to EDP for exposure to asbestos. In this regard, we note that the Arbitrator erred as matter of law when he held that “the manner in which the Agency proceeded insofar as EDP was concerned, is not binding upon the Union, unless the evidence establishes that the Union consented to the standard.” Award at 127. The proper statement of the law is that where an agency regulation sets a specific standard that addresses a matter in dispute, that standard applies unless it conflicts with the parties’ collective bargaining agreement. See Ft. Campbell, 37 FLRA at 195. Accordingly, the applicability of the standard set forth in the Supplements does not depend on the Union’s consent to the standard; rather, the Supplements govern unless the parties’ agreement provides otherwise. Here, the Arbitrator, in interpreting the parties’ agreement, found only that the parties did not agree to the use of a specific standard. He did not interpret the agreement to find that the parties intended to preclude the Supplements from governing. In fact, as noted above, he stated that his “finding that the parties did not voluntarily consent to the use of the OSHA PEL as the standard for entitlement to EDP, does not 35a necessarily mean that the OSHA PEL should not be the standard adopted by the Arbitrator.” Jd. at 222. After having interpreted the agreement to find that “the parties did NOT ever agree to a specific standard for entitlement to EDP,” the Arbitrator concluded that he “‘is left with the responsibility and authority to determine whether the bargaining unit employees herein are entitled to EDP.” Jd. at 221 (emphasis in original). However, the Arbitrator erred, as a matter of law, in concluding that where the parties had not agreed on a specific standard, it was his authority to determine the standard. Before concluding that he had such authority, the Arbitrator was required to have considered whether applicable law or regulation set a mandated quanti- tative level. Consistent with Authority precedent referenced above, where an arbitrator finds that an agreement does not set a specific standard, he or she must examine whether law or regulation, including, as here, an applicable agency regulation, does set a specific standard. See AFGE Local 2250, 52 FLRA at 323 (“in the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties, the arbitrator has the authority to determine the threshold quantitative level of exposure for the payment of EDP”) (emphasis added). In these circumstances, by operation of Fort Campbell, the agency regulation controls. We note that parties may, of course, choose in their collective bargaining agreements to reject or modify the applicability of agency regulations to particular situations. Where they do so, the agency regulation would conflict with the agreement provision and, by operation of Fort Campbell, the agreement provision would control. For example, in this case, had the parties agreed to a different specific standard from that set forth in the Supplements, or agreed that the standard would not be determined by the Supplements, the agreement provision would conflict with the Supplements 36a and, therefore, the agreement provision would control. How- ever, neither of these situations was present in this case. As noted above, the Arbitrator found that “the parties did NOT ever agree to a specific standard for entitlement to EDP{.]” Jd. at 221 (emphasis in original). The parties’ failure to agree to a specific standard is not the same as saying that the parties agreed that entitlement to EDP would be made on a case-by-case basis. Once the Arbitrator found that there was no specific standard agreed to, he was obligated to determine whether a mandated quantitative level was set by, as relevant here, an applicable regulation. He failed to do so. Rather, he erroneousiy went on to conclude that because the parties had not agreed to a specific standard, he could determine the standard without reference to the Supplements and that he was free to determine the standard to be applied in this case. The Union also fails to establish that the Supplements do not govern on the ground that they are inconsistent with other agency regulations, memoranda, or explanations on EDP or because they are inconsistent with the Agency’s historical handling of EDP for exposure to EDP. Without addressing the issue of what kind of promulgation or actions would be necessary to override the application of a formal regulation promulgated at the command level of AFMC, none of the documents referenced by the Union establishes a standard for entitlement to EDP for exposure to asbestos that is in- consistent with use of the OSHA PEL or precludes the use of the OSHA PEL as the applicable standard. Accordingly, we find that the AFLC/AFMC Supplements do not conflict with the agreement, as interpreted by the Arbitrator, and that the Supplements govern the matter in dispute of what standard applies to EDP for exposure to asbestos. 37a C. The award is deficient. Under § 7122(a)(1) of the Statute, an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. For purposes of § 7122(a)(1), the Authority has defined “rule or regulation” to include both Government-wide rules and regulations and governing agency rules and regulations. See, e.g., FAA, 55 FLRA at 801 (citing Ft. Campbell, 37 FLRA 186). As the Supplements set the OSHA PEL as the governing standard for EDP, the Arbitrator’s application of a different standard is deficient as contrary to governing regulation. See, e.g., FAA, 55 FLRA at 802 (because the award was in- consistent with an agency regulation that governed the matter in dispute, the award was deficient under § 7122(a)(1) of the Statute). D. Appropriate Action As to the question of what action is appropriate, we will set the award aside in its entirety. See, e.g., United States Dep’t of the Treasury, United States Customs Serv., Port of New York and Newark, 57 FLRA 718 (2002), petition for review filed sub nom. NTEU Chapter 161 v. FLRA, No. 02-1153 (D.C. Cir. May 17, 2002) (when the FLRA found the basis for an award of backpay was erroneous, the FLRA set aside the backpay award); cf. United States Dep’t of Def., Def. Logistics Agency, Def. Distribution Region West, Tinker Air Force Base, Okla., 53 FLRA 460 (1997) (award was set aside because the arbitrator would have reached a different result if he had not misapprehended the status of a union representa- tive). In agreement with the Agency, we view the record as reflecting that the Arbitrator would have denied the grievance had he applied the OSHA PEL as the standard for entitlement to EDP. See Award at 122. 38a V. Decision The award is set aside.° Member Pope, dissenting: I agree with the majority that, in the absence of a con- flicting collective bargaining agreement provision, an agency regulation may establish a quantitative standard constituting the level of exposure to asbestos sufficient to trigger environmental differential pay (EDP). In my view, this is a straightforward application of the holding in Allen Park Veterans Admin. Med. Ctr. that an arbitra- tor may set a quantitative level triggering EDP “[i]n the absence of a mandated quantitative level set by applica- ble law or regulation or otherwise agreed to by the parties.” 34 FLRA 1091, 1101 (1990). I do not agree with the majority, however, that the Agency regulation controls in this case. In my view, the majority misapplies the basic principle that “collective bargaining agreements, and not agency rules and regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement and the rule or regulations.” United Stated Dept. of Agriculture, 51 FLRA 1210, 1216 (1996) (quoting United States Dept. of the Army, Ft. Campbell Dist., 37 FLRA 186, 194 (1990) (Fort Campbell)). The parties’ agreement provides that EDP will be paid “fiJn accordance with Federal Law, Government-wide regulations and this Agreement.” Award at 112 (quoting Article 26.01). As interpreted by the Arbitrator, this provision contemplates case-by-case standards for EDP entitlement to be established in arbitration—not a predetermined quantita- > In view of this decision, we need not resolve the Union’s exception and the Agency’s other exceptions to the award. In addition, we believe that the positions of the parties on the issue on which this decision is based were adequately presented and that oral argument was not warranted. 39a tive standard established by Agency regulation. Thus, under Fort Campbell, the agreement conflicts with, and therefore takes precedence over, the predetermined quantitative stan- dard established in the Agency’s regulation. In my view, this simple analysis dictates rejection of the Agency’s exception that the award conflicts with the Agency regulations. The majority strains to find that the Agency regulation controls because it does not conflict with the agreement. In so doing, the majority ignores the record in this casé. In particular, the Arbitrator made extensive, specific findings regarding the parties’ intent in agreeing to Article 26.01. According to the Arbitrator’s uncontested finding, the parties “entered negotiations . . . with very different objectives insofar as the issue of EDP was concerned.” Award at 114. In particular, the Agency wanted “an exact trigger point for when EDP entitlement would be activated” and the Union wanted this to “be determined on a case-by-case method by arbitrators.” /d. The Arbitrator specifically rejected - as “patently unbelievable”’—Agency witness testimony that the Union agreed that Article 26.01 incorporated the permissible exposure limit (PEL) set by OSHA as the trigger for EDP. /d. at 126. He concluded that the agreement was “crafted with the apparent intent to incorporate the bargaining objective of the Union to avoid any definition of’ the EDP trigger level. Id. at 137. These arbitral findings compel a conclusion that the parties’ agreement establishes a case-by-case trigger for EDP entitlement and, as a result, conflicts with the Agency regulation. *! “' | am at a complete loss to understand the majority’s bald assertion that the Arbitrator’s findings are not the “same as” a conclusion that “the parties agreed that entitlement to EDP would be made on a case-by-case basis.” Majority Opinion at 16. As set forth above, the Arbitrator clearly and specifically found that: (1) the Union’s bargaining objective was to avoid agreeing to “any trigger point” and, instead, to “allow[] the definition of ‘practically eliminated’ to be determined on a case-by-case 40a The majority distorts the award by relying on the Arbitrator’s statements that Article 26.01 contains “no specific standard” to trigger EDP and that the parties had not ““agree[d] to a specific standard.”’ Majority at 13 (quoting Award at 112, 221). It is clear, in this regard, that in finding the parties did not agree to a specific standard, the Arbitrator found that they did not agree to a specific predetermined, quantitative standard. As noted above, the Arbitrator un- denia [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1386%3A1. Public record. Not legal advice.