Petition for Writ of Certiorari — Association of Civilian Technicians v. Federal Labor Relations Authority (No. 07-1450)

Supramie Court, U.S.

FILED

0714509 APR17 2008

aie OFFICE OF THE CLERK

IN THE

SUPREME COURT

OF THE UNITED STATES

ASSOCIATION OF CIVILIAN TECHNICIANS,

NEW YORK STATE COUNCIL,

Petitioner,

Vv.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Avenue, N.W.

Suite 225

Washington, D.C. 20009

202/328-2244

Counsel of Record for Petitioner

QUESTION PRESENTED

Does the court of appeals have jurisdiction to

review a Federal Labor Relations Authority order

holding that a union presenting statutory unfair

labor practice claims through grievance arbitration

has no right to decision of the merits unless the

accused employer consents?

li

CORPORATE DISCLOSURE STATEMENT

Petitioner is part of the Association of Civilian

Technicians, Inc. The corporation has no parent

corporations. The corporation has issued no stock.

Consequently, no publicly held company owns any.

iii

TABLE OF CONTENTS

QUESTION PRESENTED

CORPORATE DISCLOSURE STATEMENT

TABLE OF AUTHORITIES

OPINIONS AND ORDERS

JURISDICTION

STATUTORY PROVISIONS

STATEMENT OF THE CASE

ARGUMENT

I. The decision below contradicts

previous opinions of the same court

and is incompatible with the standard

announced by the Ninth Circuit

II. The question is important

CONCLUSION

APPENDIX Appendix Page

A = Opinion of the Court of Appeals

October 26, 2007 (Sentelle, J.)

(dismissing for lack of jurisdiction,

hoiding case does not involve

unfair labor practice); Opinion

(Tatel, J.) (dissenting)

Opinion of the Federal Labor Relations

Authority August 23, 2006 (denying

motion for reconsideration)

Opinion of the Federal Labor Relations

Authority May 4, 2005 (holding

Arbitrator had no obligation to decide

unfair labor practice claims)

Opinion by Arbitrator July 19, 2004

(denying union grievance without

ruling on unfair labor practice claims)

Order by Court of Appeals January 18,

2008 denying petition for rehearing

Order by Court of Appeals January 18,

2008 denying petition for rehearing en

banc

TABLE OF AUTHORITIES

Cases

Overseas Educ. Ass'n v. FLRA,

824 F.2d 61 (D.C. Cir. 1987)

United States Dep't of Interior v. FLRA,

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

United States Marshals Service v. FLRA,

708 F.2d 1417 (9% Cir. 1983)

Statutes

5 U.S.C. § 7103(a)(9)

5 U.S.C. § 7116(d)

5 U.S.C. § 7121

5 U.S.C. § 7122

5 U.S.C. § 7123(a)

5 U.S.C. § 7123(c)

28 U.S.C. § 1254(1)

OPINIONS AND ORDERS

The decision below, App. la, is reported at 507

F.3d 697. The dissenting opinion, App. 9a, is

reported at 507 F.3d 701. The denials of rehearing

and rehearing en banc, App. 84a-85a, are

unreported. The initial decision of the Federal

Labor Relations Authority (FLRA or Authority),

App. 36a, is reported at 60 FLRA 890. The

Authority’s denial of reconsideration, App. 24a, is

reported at 61 FLRA 664. The arbitrator’s decision,

App. 46a, is unreported.

JURISDICTION

The judgment sought to be reviewed was

entered October 26, 2007. The court below denied

rehearing and rehearing en banc January 18, 2008.

This Court has jurisdiction under 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS

5 U.S.C. § 7103(a) (excerpt)

For the purpose of this chapter—

x*x**

(9) “grievance” means any complaint... by any

employee labor organization ... concerning... a

claim of breach{} of a collective bargaining

agreement({] or . . . any claimed violation,

misinterpretation, or misapplication of any law . . .

affecting conditions of employment.

5 U.S.C. § 7116(d) (excerpt)

[I]Jssues which can be raised under a grievance

procedure may, in the discretion of the aggrieved

party, be raised under the grievance procedure or

as an unfair labor practice under this section, but

not under both procedures.

5 U.S.C. § 7121 (excerpt)

(a)(1)... [A]ny collective bargaining agreement

shall provide procedures for. settlement of

grievances, including questions of arbitrability. . . .

[T]he procedures shall be the _ exclusive

administrative procedures for resolving grievances

which fall within its coverage.

** *

(b)(1) Any negotiated grievance procedure

referred tc in subsection (a) of this section shall—

zk*x**

(C) include procedures that—

kx

(iii) provide that any grievance not

satisfactorily settled under the negotiated

grievance procedure shall be subject to

binding arbitration which may be invoked by

either the exclusive representative or the

agency.

5 U.S.C. § 7122 (excerpt)

(a) Either party to arbitration under this

chapter may file with the Authority an exception to

any arbitrator's award .... If upon review the

Authority finds that the award is deficient—

(1) because it is contrary to any law, rule, or

regulation; or

(2) on other grounds similar to those applied

by

Federal courts in private’ sector labor-

management relations;

the Authority may take such action and make such

recommendations concerning the award as _ it

considers necessary, consistent with applicable

laws, rules, or regulations.

§ U.S.C. § 7123 (excerpt)

(a) Any person aggrieved by any final order of

the Authority other than an order under—

(1) section 7122 of this title (involving an

award by an arbitrator), unless the order

involves an unfair labor practice under section

711{6]! of this title

xk**

may, during the 60-day period beginning on the

date on which the order was issued, institute an

action for judicial review of the Authority’s order . .

. in the United States Court of Appeals for the

District of Columbia.

*k***

(c) Upon the filing of a petition under subsection

(a) of this section for judicial review ...the court. .

. shall have jurisdiction of the proceeding and of the

question determined therein and may... enter a

decree . . . setting aside in whole or in part the

1 See Querseas Educ. Ass'n v. FLRA, 824 F.2d 61, 64

(D.C. Cir. 1987) (indicating that reference to Ҥ

7118” in § 7123(a)(1) should be to § 7116).

order of the Authority. . . . Review of the

Authority’s order shall be on the record in

accordance with section 706 of this title.

STATEMENT OF THE CASE

Petitioner, a federal employee labor union,

invoked arbitration of a grievance and presented

both contractual claims under the collective

bargaining agreement and statutory unfair labor

practice (ULP) claims. The arbitrator

acknowledged that the union presented ULP

claims, App. 65a-66a, but failed to decide them.

The arbitrator rejected the union’s contractual

claims and denied all relief. App. 83a.

The union appealed to the FLRA, arguing that

the arbitrator's failure to decide the ULP claims

was contrary to law. The Authority denied the

appeal on the ground that, absent written

stipulation by the employer, the union had no right

to decision of these claims. App. 26a.

The union filed in the court below a petition for

review. The court had jurisdiction under 5 U.S.C. §

71238(a)(1). The court, however, Judge ‘Tatel

dissenting, held that it lacked jurisdiction. In the

majority's view, the FLRA’s order did not “involvef{]

an unfair labor practice” within the meaning of §

7123(a)(1). App. 9a.

ARGUMENT

I

The decision below contradicts previous

opinions of the same court and is

incompatible with the standard announced

by the Ninth Circuit

In United States Dep't of Interior v. FLRA, 26

F.8d 179 (D.C. Cir. 1994), the court said, “[i]f the

aggrieved party chose to go the grievance procedure

route, but characterized its claim as a statutory

unfair labor practice, judicial review certainly

would be available.” 26 F.3d at 183. As Judge

Tatel observed, this point is “directly applicable to

this case yet absent from the court’s opinion.” App.

l3a.

“[Ajlso conspicuously absent from the court’s

opinion,” Judge Tatel noted, was “the standard

from then-Judge Kennedy’s opinion in U.S.

Marshals Service v. FLRA, 708 F.2d 1417, 1420

(9th Cir. 1983).” App. 15a. This standard,

previously adopted by the D.C. Circuit and

“repeated in every subsequent case presenting this

jurisdictional question,” states that the court of

appeals has jurisdiction if the Authority’s order

“necessarily implicates” an unfair labor practice

claim. App. 18a, citing Overseas Educ. Ass'n v.

FLRA v. FLRA, 824 F.2d 61, 68 (D.C. Cir. 1987).

In Marshals Service, no ULP claim was

implicated because the union had presented only

contractual claims and the FLRA order challenged

by the employer afforded relief solely on those

claims. Here, the union raised statutory ULP

claims as well as contractual claims and obtained

no relief at all. As Judge Tatel said, “the

Authority’s order ‘necessarily implicated’ the

union’s unfair labor practice claim by effectively

terminating it,” rendering it “irretrievably lost.”

App. 15a-16a.

II

The question is important

The decision below denies jurisdiction where an

arbitrator and the Authority refuse relief and

simply ignore ULP claims. Further, the Authority’s

order allows an arbitrator to ignore these statutory

claims unless the accused wrongdoer stipulates

otherwise. This grant of power to a law violator to

veto an aggrieved party’s right to relief is

incompatible with law and norms of justice.

Under the legal framework, supra at 1-4, a

union has a right to grieve ULP claims, and the

grievance procedure must be able to resolve

grievances and must grant the union a unilateral

right to binding arbitration of any grievance not

settled. The statute provides for appeal of

arbitration awards to the Authority and for direct

appellate review of Authority orders that involve

ULP claims.

The decision below and the Authority’s order

erroneously transform this congressionally

mandated road to judicial relief into a path that

can be blocked at the whim of the wrongdoer and

the arbitrator.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Ave., N.W.

Suite 225

Washington, D.C, 20009

202/328-2244

Counsel of Record for Petitioner

la

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA

CIRCUIT

Argued Decided

September 24, 2007 October 26, 2007

No. 06-1354

ASSOCIATION OF CIVILIAN TECHNICIANS,

NEW YORK STATE COUNCIL,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

On Petition for Review of an Order of the

Federal Labor Relations Authority

Daniel M. Schember argued the cause and filed

the briefs for petitioner.

James F. Blandford, Attorney, Federal Labor

Relations Authority, argued the cause for

respondent. With him on the brief was William R.

Tobey, Deputy Solicitor.

Before: SENTELLE, TATEL and GRIFFITH,

Circuit Judges.

Opinion for the Court filed by Circuit Judge

SENTELLE.

2a

Dissenting opinion filed by Circuit Judge

TATEL.

SENTELLE, Circuit Judge: The Association of

Civilian Technicians, New York State Council (“the

Union” or “the Association”), petitions for review of

an order of the Federal Labor Relations Authority

stemming from a grievance filed by the Union after

the New York Division of Military and Naval

Affairs implemented a state-wide smoking ban at

its facilities. The parties could not resolve the

grievance, so the Union submitted it to binding

arbitration in accordance with the terms of its

collective bargaining agreement and the Federal

Service Labor-Management Relations Statute, 5

U.S.C. § 7101 et seg. The arbitrator denied the

grievance and the Union filed exceptions to her

award with the Authority. The Authority denied

the exceptions in the order at issue here. Because

we find that we lack jurisdiction to review the

Authority’s order, we dismiss.

i. Background

In 2003, New York amended its Clean Indoor

Air Act to prohibit indoor smoking in all “places of

employment,” including workplaces of “the

legislative, executive and judicial branches of state

government and any political subdivision of the

state.” N.Y. Pub. Health Law § 1399-0(1), -n(2).

Accordingly, the New York Division of Military and

Naval Affairs (“DMNA”) issued a new smoking

policy that prohibited all smoking in National

Guard facilities in New York.

3a

The Association of Civilian Technicians, New

York State Council, which represents the civil

technicians working at the Guard facilities, filed a

grievance charging that the DMNA had violated

their collective bargaining agreement by failing to

negotiate the terms of the new smoking policy.

When the grievance was not resolved, the Union

invoked its right to binding arbitration and added

an allegation that DMNA’s unilateral

implementation of the policy constituted an unfair

labor practice because it was taken in clear and

patent breach of the coilective bargaining

agreement’s negotiation provisions.

The parties were unable to stipulate to the

issues before the arbitrator. She reviewed their

proposed issues and found that, “[a]t the heart of

this case is a dispute over the interpretation and

application of the language of the Parties’

Collective Bargaining Agreement.” She _ then

framed the issues as “Did the Agency violate the

Collective Bargaining Agreement when it issued a

new smoking policy letter on 23 July 2003?” and “If

so, what should the remedy be?” She concluded that

the DMNA had not violated the collective

bargaining agreement because the smoking ban

was a statutory requirement and therefore did not

fall within the agreement’s requirement that rules

“within the purview” of the DMNA be negotiated.

The Union filed exceptions to the arbitral

decision with the Federal Labor’ Relations

Authority arguing, in pertinent part, that the

arbitrator exceeded her authority when she failed

4a

to address its unfair labor practice allegations. The

Authority denied the Union’s exceptions, finding

that the arbitrator had not erred in framing the

issues as arising solely under the collective

bargaining agreement. Under Authority precedent,

where parties do not stipulate to the issues before

the arbitrator, the arbitrator has broad discretion

to frame the issues. Ass’n of Civilian Technicians,

N.Y. State Council, 60 F.L.R.A. 890 (2005), recons.

denied, 61 F.L.R.A. No. 134 (2006) (citing AFGE,

Local 1367, 60 F.L.R.A. 187, 190 (2004)). Therefore,

in this case, because there was no stipulation that

an unfair labor practice claim was before the

arbitrator, the arbitrator was not obligated to

frame the issues as including an unfair labor

practice claim. Jd. The Authority deferred to the

arbitrator’s framing of the issues and dismissed all

exceptions to her award. Jd. The Union sought

reconsideration, which was denied, then petitioned

for review by this Court.

II. Analysis

We lack jurisdiction to review the Authority’s

order affirming the arbitral decision because it does

not “involvef[] an unfair labor practice under section

711[6]” of the Federal Service Labor-Management

Relations Statute. 5 U.S.C. § 7123(a)(1).- The

* Although the statute refers to “section 7118,”

the reference “has been recognized to be an error;

the correct reference is to section 7116.” AFGE,

Local 2510 v. FLRA, 453 F.3d 500, 502 n.* (D.C.

Cir. 2006) (quoting Overseas Educ. Ass'n v. FLRA,

824 F.2d 61, 63 n.2 (D.C. Cir. 1987) (““OEA”)).

5a

Authority's order instead involves rules applicable

to arbitration which, when applied in this dispute,

resulted in the unfair labor practice claim's

exclusion from review. We {ind that this secondary

effect on the unfair labor. practice claim is not

sufficient to qualify the order as one that “involves

an unfair labor practice” for purposes of 5 U.S.C. §

7123(a)(1).

The Federal Service Labor-Management

Relations Statute limits our review to orders of the

Authority which involve unfair labor practices in

order to balance a “strong Congressional policy

favoring arbitration of labor disputes,” Overseas

Educ. Ass’n, 824 F.2d 61, 63 (D.C. Cir. 1987), with

a Congressional intent for “uniformity in the case

law concerning unfair labor practices,” AFGE,

Local 2510 v. FLRA, 453 F.3d 500, 505 (D.C. Cir.

2006). The Statute contains a “two-track system for

resolving labor disputes.” OEA, 824 F.2d at 62. A

party aggrieved by an unfair labor practice may go

down either track, but not both. 5 U.S.C. § 7116(d).

Under the first track, not pursed by the Union in

this case, a party may file an unfair labor practice

charge with the Authority's General Counsel, who

will investigate and issue a complaint, if

warranted. Id. § 7118(a). The matter is then

adjudicated by the Authority, and the Authority’s

decision is subject to judicial review. Id. §§ 7118,

7123. Under the second track, which was followed

here, a party may file a grievance in accordance

with its collective bargaining agreement that

alleges an unfair labor practice, a violation of the

collective bargaining agreement, or both. The

6a

grievance is subject to binding arbitration, id. §

7121(b)(1)(C)(Giil), and the arbitral award is subject

to review by the Authority, id. § 7122(a). The

Authority’s order is not subject to judicial review

“unless the order involves an unfair labor practice

under section 711[6]” of the Statute. Jd. §

7122(a)(1). The second track is the track for those

who “prefer{] to benefit from the relatively

expeditious and (presumably) final result that

arbitration promise[s].” OEA, 824 F.2d at 66. By

offering its one level of review at the administrative

level, it protects Congress’s interest in providing

“arbitration results substantial finality.” Id. at 63.

Its limited exception that allows a second level! of

review—judicial review—furthers Congress’s other

stated interest of ensuring “a single, uniform body

of case law concerning unfair labor practices.”

AFGE, Local 2510, 453 F.3d at 505.

Reading the exception broadly, then, would be

contrary to “the proarbitration policy Congress

articulated in passing the Act.” OKA, 824 F.2d at

66. For t’iat reason, we have found that judicial

review is only available where the “substance of the

unfair labor practice” is “discussed in some way in,

or [is] some part of, the Authority's order.”” AFGE,

Local 2510, 453 F.3d at 505 (quoting OFA, 824 F.2d

at 65). “A mere ‘passing reference’ to an unfair

labor practice will not suffice,” id. at 503, nor will

the fact that “the underlying conduct could be

characterized as a statutory unfair labor practice,”

OEA, 824 F.2d at 66. Instead, “the conduct must

actually be so characterized and the claim pursued,

Ta

by whatever route, as a statutory unfair labor

practice, not as something else.” /d. at 66.

The order need not address an unfair labor

practice “on the merits” to “involve” an unfair labor

practice, but it does need to include some “sert of

substantive evaluation of a statutory unfair labor

practice.” OEA, 824 F.2d at 71. For example, in

OEA, the Authority did not decide an unfair labor

practice claim on the merits because it concluded

that the claim was precluded by a previously-filed

claim. Id. Its order nonetheless “involved” an unfair

labor practice because it included a detailed

substantive analysis and comparison of the two

unfair labor practice claims such that its discussion

of unfair labor practices was “no mere citation in

passing.” Jd. at 70—71.

On the other hand, we have found that an order

did not “involve” an unfair labor practice where the

“arbitrator’s decision clearly frame[d] the issue as

one arising solely under the parties’ collective

bargaining agreements” and the Authority’s order

“repeat(ed] the arbitrator’s statement of the issue

as one sounding in contract.” U.S. Dept of Interior

vu. FLRA, 26 F.3d 179, 184 (D.C. Cir. 1994) (“DOTL’).

We have also found that the standard was not met

where the Authority’ order reviewing an

arbitration fee award contained “neither a single

mention of § 7116 (unfair labor practices) nor any

discussion of the arbitrator’s finding of an unfair

labor practice other than passing references” to the

issues in the underlying dispute. AFGE, Local

2510, 453 F.3d at 504. Where an order does not

8a

contain a substantive discussion of an unfair labor

practice claim, there is no need to depart from

Congress’s “established policy ‘favoring arbitration

of labor disputes and accordingly granting

arbitration results substantial finality, which .. .

underlies the general rule in § 7123 barring judicial

review of arbitral awards” because “there is no risk

the Authority will leave the path of the law of

unfair labor practices and yet escape the review

that would bring it back to the straight and

narrow.” Id. at 505 (quoting OFA, 824 F.2d at 63).

The Authority’s order in this case does not

“involve” an unfair labor practice under our

precedent. The Authority did not engage in any

substantive discussion of the Union’s unfair labor

practice claim in its order, but instead explicitly

found that the arbitrator was justified in

concluding that the substance of the unfair labor

practice claim was not part of the dispute. As in

DOI, the “arbitrator’s decision clearly frames the

issue as one arising solely under the parties’

collective bargaining agreements,” the “arbitrator

analyzes the case as an alleged breach of contract,”

and the Authority’s order “repeats the arbitrator's

statement of the issue as one sounding in contract.”

DOI, 26 F.3d at 184. Therefore, as in DOJ, the

order does not “involve” an unfair labor practice.

We note that if the Union wished to protect its

right to judicial review of any possible unfair labor

practice claims, it coula have utilized the first track

provided by the Statute which leads to judicial

review. Because it instead decided to proceed

9a

through the second track, it is bound by the

Statute’s ban on judicial review unless the

Authority’s order “involves” an unfair labor

practice.

The Union fails in its attempt to characterize

this order as involving an unfair labor practice by

pointing to its effect on the Union’s unfair labor

practice allegations. While the Authority ensured

that the Union’s unfair labor practice claim will not

be considered on its merits by affirming the

arbitrator's framing of the issues, our caselaw is

clear that the Authority’s order itself must have

some “bearing upon the law of unfair labor

practices” in order to qualify as an order that

“involve[s] an unfair labor practice.” AFGE, Local

2510, 453 F.3d at 505. A passing reference to an

unfair labor practice or a mere effect on the

reviewability of an unfair labor practice claim is not

enough. Because the Authority’s order in this case

deals solely with arbitration procedure, and neither

discusses nor in any other way affects substantive

law regarding unfair labor practices, it does not

“involve” an unfair labor practice. We have no

jurisdiction to review the order.

III. Conclusion

For the reasons discussed above, we dismiss the

petition for lack of jurisdiction.

TATEL, Circuit Judge, dissenting: The court

concludes that we lack jurisdiction to hear the

union’s challenge to a Federal Labor Relations

10a

Authority order that disposed of the union’s unfair

labor practice claim based solely on an arbitrator's

unexplained failure to resolve that claim during the

grievance process. Because I believe that the

Authority’s order “involves an unfair labor practice”

within the meaning of section 7123(a)(1) of the

Federal Service Labor-Management Relations

Statute, 5 U.S.C. § 7101 et seq., and that the court’s

interpretation to the contrary finds no support in

our precedent, I respectfully dissent.

I,

As the court correctly observes, the statute

establishes a two-track system in which an

aggrieved union can either file an unfair labor

practice charge with the Authority’s General

Counsel or submit a_ grievance to binding

arbitration, but may not do both. See Overseas

Educ. Ass'n v. FLRA, 824 F.2d 61, 62-63 (D.C. Cir.

1987) (“OEA”). In this case, the union chose to

pursue its unfair labor practice claim through the

grievance process. In its pre-hearing brief before

the arbitrator, the union argued that the employer

committed unfair labor practices in two ways: by

changing employee working conditions without

affording the union notice and an opportunity to

bargain; and by committing a clear and patent

breach of the collective bargaining agreement.

Although the court mentions only the latter

allegation, see Maj. Op. at 2-3, the arbitrator

explicitly acknowledged both claims in her opinion.

Despite reciting the union’s unfair labor practice

charges nearly verbatim, the arbitrator nonetheless

lla

framed the issue before her as arising solely under

the parties’ collective bargaining agreement.

Finding no breach of that agreement, she denied

the union’s grievance. In so doing, the arbitrator

offered no explanation for failing to address the

union’s unfair labor practice claim.

When the union appealed to the Authority,

arguing that the arbitrator improperly ignored its

unfair labor practice claim, the employer countered

that the arbitrator had in fact addressed the

alleged unfair labor practices, but had simply found

against the union. Assn of Civilian Technicians,

N.Y. State Council, 60 F.L.R.A,. 890, 891 (2005).

Correcting this inaccurate assertion, the Authority

“agree[d] with the union that the Arbitrator did not

address whether [the employer]’s actions

constituted unfair labor practices under the

Statute.” Id. Nonetheless, the Authority upheld the

arbitrator’s award, reasoning that “[i]n the absence

of a stipulation that ... included the issue of

whether the [employer] committed any unfair labor

practices, the Arbitrator was not obligated to

address and resolve whether the [employer]'s

actions violated the Statute.” Id.

Still seeking some resolution to its unfair labor

practice claim, the union moved for reconsideration,

arguing that the statute provides for (1) a

unilateral right to have an unfair labor practice

Claim resolved through the grievance process and

(2) appeals to both the Authority and the U.S.

Court of Appeals. The Authority denied the motion,

again citing its general policy of deferring to an

12a

arbitrator's framing of the issues absent an

employer stipulation. Ass'n of Civilian Technicians,

N.Y. State Council, 61 F.L.R.A. 664, 666-67 (2006)

(“ACT”). The union petitioned for review, arguing

that the Authority had denied what the statute

expressly requires: resolution of its unfair labor

practice claim. The court now dismisses the union’s

petition for lack of jurisdiction under section

7123(a)(1), reasoning that the Authority’s order

merely “involves rules applicable to arbitration”

that happened to result “in the unfair labor

practice claim’s exclusion from review.” Maj. Op. at

4. In my view, this result ignores the facts of this

dispute and conflicts with both the statute and our

precedent.

II.

Section 7123(a)(1) allows this court to hear

appeals from Authority decisions reviewing arbitral

awards if the award “involves an unfair labor

practice,” a standard we have addressed in some

depth on three separate occasions. In OKA, we

considered two separate Authority orders, finding

ourselves with jurisdiction over one order because

it “necessarily implicated” an unfair labor practice

claim, but without jurisdiction over the other

because the union had pursued its claim on a

contract theory. 824 F.2d at 69, 71. In U.S. Dep't of

the Interior v. FLRA, 26 F.3d 179 (D.C. Cir. 1994)

(“DOTI’), we found ourselves without jurisdiction

because the union had made only two “passing

references” to unfair labor practices and had

pursued its claim as a contract action. Jd. at 183-

13a

84. And in AFGE, Local 2510 v. FLRA, 453 F.3d

500 (D.C. Cir. 2006), we found ourselves without

jurisdiction over an Authority order that not only

failed to “engage at all with the substance of the

unfair labor practice,” but dealt solely with

attorneys’ fees. Id. at 505. Taken together, these

three cases demonstrate that we have jurisdiction

to review an Authority order if (1) the aggrieved

union consistently pursued its claim as an unfair

labor practice throughout the grievance process, (2)

the Authority’s order necessarily implicates the

unfair labor practice claim, and (3) the order

discusses the substance of the unfair labor practice

claim in some way. This case satisfies all three

requirements.

First, as the court correctly notes, for us to have

jurisdiction, a union must characterize and pursue

its claim “as a statutory unfair labor practice, not

as something else.” Maj. Op. at 5 (quoting OFA, 824

F.2d at 66). In language directly applicable to this

case yet absent from the court’s opinion, we stated

in OFA that “[ijt is clear that if a dual-natured type

of complaint were pursued as a statutory unfair

labor practice, any FLRA order would be subject to

judicial review under section 7123(a)(1), even if the

aggrieved party chose to utilize the

grievance/arbitration route.” 824 F.2d at 64

(emphases altered). Reaffirming this principle in

DOI, we stated, even more categorically, “[i]f the

aggrieved party chose to go the grievance procedure

route, but characterized its claim as a statutory

unfair labor practice, judicial review certainly

would be available.” 26 F.3d at 183 (emphasis

l4a

added). The central thrust of both OZA and DOI, in

other words, is that a union may not pursue its

grievance on a breach of contract theory only to

transform it belatedly into an unfair labor practice

claim in an effort to obtain judicial review.

Here, the union did no such thing. It

consistently characterized its claim as an unfair

labor practice and pursued it as such throughout

the grievance process. As noted above, the union

began its pre-hearing brief with its unfair labor

practice allegations. In her statement of the parties’

positions, the arbitrator spent two paragraphs

repeating those allegations. The employer certainly

believed the union had raised the claim, even

arguing that the arbitrator had actually decided it.

The union reasserted its unfair labor practice claim

in its exceptions to the arbitral award and pursued

it again in its motion for reconsideration. In short,

the union consistently characterized the employer's

conduct “as a statutory unfair labor practice, not as

something else.” Maj. Op. at 5 (quoting OFA, 824

F.2d at 66).

Attempting to minimize this fact, the court

analogizes this case to DOI where, as here, the

“arbitrator’s decision clearly frame[d] the issue as

one arising solely under the parties’ collective

bargaining agreements,” the “arbitrator analyze[d]

the case as an alleged breach of contract,” and the

Authority's order “repeat{ed] the arbitrator’s

statement of the issue as one sounding in contract.”

Maj. Op. at 7 (quoting DOJ, 26 F.3d at 184). This is

all true, but irrelevant. The unions in DOJ, unlike

15a

the union here, failed to pursue their claims as

statutory unfair labor practices. Instead, the unions

insisted their case was “governed by simple

contract law,” and included only two “essentially

gratuitous” references to unfair labor practices in

their post-hearing briefs. DOJ, 26 F.3d at 183-84.

That both the arbitrator and Authority

characterized the case as a contractual dispute is

therefore hardly surprising.

Second, our case law makes clear that for us to

have jurisdiction the Authority’s order must

“necessarily implicate{]” an unfair labor practice

claim. OEA, 824 F.2d at 68. This language is also

conspicuously absent from the court’s opinion, even

though it is the test we adopted in OEA (borrowing

the standard from then-Judge Kennedy’s opinion in

U.S. Marshals Service v. FLRA, 708 F.2d 1417,

1420 (9th Cir. 1983)), and have repeated in every

subsequent case presenting this jurisdictional

question. OEA, 824 F.2d at 67-68 (“[T]he standard

is thet a statutory unfair labor practice must be

either an explicit ground for, or be necessarily ©

implicated by, the Authority’s decision.”) (footnote

omitted); see also AFGE, Local 2510, 453 F.3d at

504; U.S. Dep’t of Treasury, U.S. Customs Serv. v.

FLRA, 43 F.3d 682, 687 n.5 (D.C. Cir. 1994); DOI,

26 F.3d at 183.

Here, the Authority's order “necessarily

implicated” the union’s unfair labor practice claim

by effectively terminating it. Put another way,

before the Authority issued its order, the union had

a viable unfair labor practice claim, albeit one that

16a

the arbitrator had inexplicably ignored. After the

Authority ruled, however, the union’s claim was

irretrievably lost. Because section 7116(d) forbids

the union from re-filing its allegations with the

General Counsel, the Authority’s order represents

the last word on the union’s claim. See AFGE, Local

1411 v. FLRA, 960 F.2d 176, 178 (D.C. Cir. 1992)

(noting that the purpose of section 7116(d) is “to

preclude duplicative proceedings by requiring an

aggrieved party to make an election of remedies”

when “the same facts and the same decision are

involved”). That the Authority grounded its

decision in arbitration procedure does nothing to

change the order’s ultimate effect on the union’s

unfair labor practice claim. In short, by disposing of

the union’s claim for all time, the Authority’s order

must “necessarily implicate[]” it. OLA, 824 F.2d at

67-68.

To reach the opposite conclusion, the court relies

heavily on AFGE, Local 2510, but that case

provides a telling contrast to the issue presented

here. In AFGE, Local 2510, the arbitrator bad

decided the union’s unfair labor practice claim in

the union’s favor, and the employer declined to

challenge that ruling before the Authority, instead

appealing only the arbitrator’s award of attorneys’

fees to the union. 453 F.3d at 502-03. As a result,

the Authority's order “addressed only the fee

award.” Id. at 504. We dismissed the union's

petition for lack of jurisdiction, emphasizing that

the Authority’s order—not the arbitral award—

must involve an unfair labor practice for us to have

jurisdiction. Jd. at 505. Here, of course, the arbitral

17a

award includes no resolution of the union’s

statutory claim, but that is the entire point of the

union’s appeal. Unlike its counterpart in AFGE,

Local 2510, the union here does not attempt to

bootstrap an ancillary issue onto a previously

decided unfair labor practice claim in order to

obtain judicial review. Rather, the union argues

that it deserves resolution of its statutory claim in

the first instance. Thus, although we concluded

that the Authority’s order in AFGE, Local 2510 did

not “necessarily implicate” an unfair labor practice

claim, id. at 504, the facts support the opposite

conclusion here.

Finally, as the court points out, we will review

an Authority’s order when the “substance of the

unfair labor practice” is “discussed in some way in,

or [is] some part of, the Authority’s order.” Maj.

Op. at 5 (quoting AFGE, Local 2510, 453 F.3d at

505). Here, the Authority argues that it never

“assess[ed] the substance of the alleged [unfair

labor practice] at all in the instant case.” Resp’t’s

Br. 20 (emphasis added). In a similar vein, the

court states that “the Authority did not engage in

any substantive discussion of the union’s unfair

labor practice claim in its order.” Maj. Op. at 7

(emphasis added). The record shows otherwise. In

denying the union’s motion for reconsideration—in

an order challenged here—the Authority included

the following substantive discussion of the union’s

claims:

Even if we were to address the alleged unfair

labor practices, we would nonetheless find

18a

that the denial of the grievance was not

deficient. Specifically, the Arbitrator found

that the [employer] did not breach the

agreement. Authority precedent establishes

that unless there is a breach of an

agreement, there can be no repudiation in

violation of the Statute, as was alleged by

the union at arbitration. See, e.g., Dep't of the

Air Force, 375th Mission Support Squadron,

Scott Air Force Base, Iil., 51 F.L.R.A. 858,

862 (1996) (the first element that must be

established to support an allegation of

repudiation in violation of the Statute is that

the respondent’s actions constituted a breach

of the agreement that was clear and patent).

In addition, the record establishes that the

Arbitrator enforced lawful, agreed-upon

limits on the obligation to bargain and that,

consequently, the femployer]’s actions did

not constitute a failure to bargain. See AFGE

Local 3529, 52 F.L.R.A. 1313, 1319-20

(1997).

ACT, 61 F.L.R.A. at 666 n.4. The Authority thus

addressed both of the union’s unfair labor practice

allegations. To be sure, the Authority’s discussion

does not amount to a decision on the merits of the

union’s claim, but “something less than treatment

‘on the merits’ is required” for us to have section

7123{a)(1) jurisdiction. OFA, 824 F.2d at 71.

Ignoring the Authority's order denying

rehearing, the court demands more. Quoting half a

sentence from OFA, it explains that to confer

19a

jurisdiction, the Authority’s order “does need to

include some ‘sort of substantive evaluation of a

statutory unfair labor practice.” Maj. Op. at 6

(quoting OFA, 824 F.2d at 71). But in the portion of

the sentence not quoted by the court, we concluded

that “th[e] sort of substantive evaluation” at issue

in that case “abundantly suffice{d] to satisfy the

relatively imprecise ‘involves’ standard of section

7123(a)(1).” OEA, 824 F.2d at 71 (emphasis added).

Although the discussion here may not “abundantly

suffice{l to satisfy” section 7123(a)(1), it suffices

nonetheiess. Not only does the Authority’s order

include a “substantive evaluation” of the union’s

claim, but that evaluation, though dictum, carries

precedential weight in future Authority

proceedings. See, e.g., Def. Sec. Assistance Dev. Ctr.,

60 F.L.R.A. 292, 294 (2004) (citing Authority dicta

while analyzing a claim); U.S. Border Patrol

Livermore Sector Dublin, Cal., 58 F.L.R.A. 231, 233

(2002) (same); AFGE, Local 32, 51 '*.L.R.A. 491,

502 (1995) (same).

In sum, the union pursued its statutory claim

throughout the grievance process, the Authority’s

order “necessarily implicated” that claim by

terminating it, OKA, 824 F.2d at 68, and the

Authority discussed the substance of the claim “in

some way.” AFGE, Local 2510, 453 F.3d at 505

(quoting OEA, 824 F.2d at 65). We have never

demanded more to find jurisdiction.

20a

Iii.

For the foregoing reasons, I would find section

7123(a)(1) jurisdiction and go on to review the

Authority’s conclusion that an arbitrator has no

obligation to resolve a union’s unfair labor practice

claim unless an employer stipulates to that claim.

The union argues that under a plain reading of the

statute, “a union that raises an {unfair labor

practice] claim as a grievance has a unilateral right

to demand that the claim be resolved by binding

arbitration.” Pet’r’s Opening Br. 24.

The union’s textual argument proceeds as

follows. Section 7116(d) expressly allows unions to

raise unfair labor practice claims in grievance

procedures, and section 7121(a)(1), in_ turn,

requires those procedures to be processes for

“resolving grievances” (emphasis added). Then,

citing section 7121(b)(1)(C)(@ii), the union argues

that because either party to a dispute may demand

that “any grievance not satisfactorily settled... be

subject to binding arbitration,” the statute grants

unions the right to have unfair labor practice

claims “resolved” through arbitration. According to

tiie union, allowing a statutory claim to vanish if

an employer refuses to stipulate to it conflicts with

the statute because the grievance precedure would

then fail to “resolve” the grievance.

The union reads the statute correctly. “Resolve”

means “to reach a decision about” or “settle.”

Webster’s Third New International Dictionary 1933

(1993). Under the Authority’s “no obligation” rule,

2la

however, the grievance process may end without

deciding a union’s unfair labor practice claim or

settling it in any meaningful sense. The claim can

simply evaporate.

The Authority offers no response to the union’s

textual argument. Instead, it argues that not all

unfair labor practice claims are ultimately

“resolved” under the statute. As the Authority

points out, if the General Counsel declines to issue

a complaint upon a union’s request, the issue never

reaches the Authority for review. The statute,

however, requires the General Counsel to give the

union a written statement of reasons for declining

to issue a complaint. See 5 U.S.C. § 7118(a)(1) (“In

any case in which the General Counsel does not

issue a complaint because the charge fails to state

an unfair labor practice, the General Counsel shall

provide the person making the charge a written

statement of the reasons for not issuing a

complaint.”). Under the Authority’s rule, unions

choosing to pursue their unfair labor practice

claims through arbitration—their right under the

statute—can be denied even this.

At bottom, the Authority argues that the

arbitrator resolved the union’s claim by ignoring it.

Because I believe the statute requires more, [|

would grant the union’s petition for review and

remand the case to the Authority with instructions

to return it to the arbitrator for a decision on the

merits of the union’s unfair labor practice claim.

IV.

Contrary to the court’s view—and to return to

the jurisdictional issue—my disposition would

further Congress’s strong pro-arbitration pclicy by

guaranteeing unions some resolution of their unfair

labor practice claims through grievance procedures.

The court’s decision, by contrast, will discourage

unions from choosing the very grievance and

arbitration process that Congress seeks to promote.

Eager to preclude judicial review, employers will

have no incentive to stipulate to a union’s unfair

labor practice claim in arbitration and every reason

not to do so. Unions, in turn, will justifiably fear

that arbitrators will ignore their properly raised

statutory claims without explanation, rendering

those claims lost for all time. The result is easy to

predict: instead of seeking arbitration, unions will

file unfair labor practice charges with the General

Counsel. Indeed, unions would be wise to follow

this course, for if the General Counsel declines to

pursue their unfair labor practice claims, they will

at least receive a written explanation. As this case

makes abundantly clear, however, unions choose

the grievance track at their peril.

Finally, my proposed disposition, unlike the

court’s decision, would ensure “a single, uniform

body of case law concerning unfair labor practices.”

AFGE, Local 2510, 453 F.3d at 505. If, on remand,

the arbitrator ruled against the union, the union

could appeal to the Authority. Judging from the

merits discussion in the Authority's denial of the

union’s motion for reconsideration, I think it safe to

23a

assume that the Authority would find against the

union. If the union sought review here, we could

then perform our statutory function by ensuring

that the Authority had not left “the path of the law

of unfair labor practices” while “escapfing] the

review that would bring it back to the straight and

narrow.” Id. By short-circuiting this process, the

court denies us that opportunity.

24a

APPENDIX B

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ASSOCIATION OF CIVILIAN TECHNICIANS

NEW YORK STATE COUNCIL

(Union)

and

UNITED STATES DEPARTMENT OF

DEFENSE NATIONAL GUARD BUREAU

STATE OF NEW YORK DIVISION OF

MILITARY AND NAVAL AFFAIRS

(Agency)

Case No. 0-AR-3877

(60 FLRA 890 (2005))

ORDER DENYING MOTION FOR

RECONSIDERATION

August 23, 2006

Before the Authority: Dale Cabaniss,

Chairman and Carol Waller Pope, Member.

I. Statement of the Case

This matter is before the Authority on the

Union's motion for reconsideration of the

Authority's decision in Ass'n of Civilian

25a

Technicians, New York State Council, 60 FLRA 890

(2005) (New York State Council). The Agency did

not file an opposition to the Union's motion.

Section 2429.17 of the Authority's Regulations

permits a party that can establish extraordinary

circumstances to request reconsideration of an

Authority decision. We conclude that the Union has

failed to establish extraordinary circumstances

warranting reconsideration of the decision in New

York State Council. Accordingly, we deny the

Union's motion.

II. Decision in New York State Council

In 2003, the New York State Clean Indoor Air

Act was amended to prohibit smoking indoors in

the workplace. As a result, the Adjutant General of

the New York Army and Air National Guard issued

a new smoking policy that prohibited smoking in

all facilities occupied by the New York Army and

Air National Guard. The Union filed a grievance.

The parties were unable to stipulate the issues

for resolution by the Arbitrator. While noting the

Union's allegation that the Agency's "action was an

unfair labor practice[,|" the Arbitrator determined

that "[a]t the heart of this case is a dispute over the

interpretation and application of the language of

the Parties' Collective Bargaining Agreement."

Award at 12, 20. Accordingly, in framing the issue

to be resolved in the absence of a stipulation of the

issue by the parties, the Arbitrator framed the

issue as only a contractual one: whether the Agency

violated the parties' collective bargaining

agreement when it issued a new smoking policy

26a

and, if so, what should the remedy be. See id. at 2.

The Arbitrator denied the grievance. She found

that the Agency did not violate the parties'

collective bargaining agreement when it issued the

new smoking policy.

The Union filed two exceptions to the award,

and the Authority denied both exceptions.

First, the Union contended that the award was

deficient because "the arbitrator improperly failed

to address whether the agency's action was an

unfair labor practice." 60 FLRA at 891 (quoting

Exceptions at 8). The Authority viewed this

contention as a claim that the Arbitrator exceeded

her authority by failing to resolve an issue

submitted to arbitration. The Authority ruled that

the Arbitrator did not fail to resolve an issue

submitted. In this regard, the Authority concluded

that as the parties did not stipulate that this case

involved an unfair labor practice claim, the

Arbitrator was not obligated to address and resolve

whether the Agency's actions violated the Federal

Service Labor-Management Relations Statute

(Statute). See id. Because the Arbitrator was not

obligated to address and resolve whether the

Agency's actions violated the Statute, the Authority

found that the Union's claim that the Agency's

conduct constituted an unfair labor practice

provided no basis for finding the award deficient.

Accordingly, the Authority denied this exception.

Second, the Union contended that the award

was contrary to law because the circumstances

under which federal employees are allowed to

smoke in the workplace are negotiable conditions of

27a

employment. The Authority noted that it "has

repeatedly acknowledged that parties are

permitted to define through negotiations their

bargaining obligations under the Statute." Id. at

892 (citations omitted). The Authority stated that

the Arbitrator had permissibly interpreted the

relevant collective bargaining agreement provision

as defining the parties' bargaining obligation over

smoking and limiting that obligation to matters

that were "within the purview of [t]he Adjutant

General's . . . smoking policy letter." Id. The

Authority further found that "[{a]ls the Arbitrator

was simply enforcing lawful, agreed-upon limits on

the parties' obligation to bargain on _ the

circumstances under which technicians could

smoke, the award is not contrary to law." dd.

Consequently, the Authority denied this exception

as well.

III. Union's Motion for Reconsideration

The Union contends that reconsideration of New

York State Council is werranted for two reasons.

First, the Union asserts that "[t]he failure of the

Arbitrator and the Authority to decide the unfair

labor practice claims was contrary to law." Motion

for Reconsideration at 8. The Union states that

under the Statute, grievances may properly raise

unfair labor practice allegations and contends that

the failure of an arbitrator to resolve such an

allegation that has been presented by a party is

contrary to the Statute. In this regard, the Union

asserts that it had a unilateral right under the

Statute to raise its allegations that the Agency had

28a

violated the Statute under the negotiated grievance

procedure and to obtain resolution of the

allegations by binding arbitration, with a right of

review of the award by both the Authority and a

United States court of appeals to determine

whether the resolution of the unfair labor practice

allegations was consistent with the Statute.

Accordingly, the Union claims that the Authority

erred when it ruled that in the absence of a

stipulation that included the unfair labor practice

allegations, the Arbitrator was not obligated to

address and resolve whether the Agency's actions

violated the Statute.

Second, the Union contends that reconsideration

is warranted because, contrary to the finding of the

Authority, the Arbitrator did not interpret and

apply the parties' collective bargaining agreement

in denying the grievance. The Union asserts that

instead, the Arbitrator erroneously held that state

law authorized and required the Agency to breach

the agreement.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Regulations

permits a party that can establish extraordinary

circumstances to request reconsideration of an

Authority decision. The Authority has identified a

limited number of situations in which it has found

extraordinary circumstances to exist. See United

States Dep't of the Air Force, 375th Combat Support

Group, Scott Air Force Base, Ill., 50 FLRA 84, 86-87

(1995). These include situations in which the

Authority erred in its conclusions of law or factual

findings. The party seeking reconsideration of the

29a

decision of the Authority has a heavy burden of

establishing that extraordinary circumstances exist

to justify this unusual action. See id. at 85. We

conclude that the Union has failed to meet the

heavy burden of establishing that extraordinary

circumstances exist to justify reconsideration of

New York State Council.

With respect to the Union's first claim, the

Authority, like federal courts in reviewing

arbitration awards in the private sector, accords an

arbitrator's formulation of the issues submitted in

the absence of a stipulation the same substantial

deference accorded an arbitrator's interpretation

and application of the collective bargaining

agreement. See, e.g., Air Force Space Div., Los

Angeles Air Force Station, Cal., 24 FLRA 516, 518-

19 (1986) (citing Mobil Oil Corp. v. Indep. Oil

Workers Union, 679 F.2d 299 (8d Cir. 1982)). Thus,

the Authority's uniform practice has been to grant

substantial discretion to arbitrators to decline to

consider issues in cases in which there is no

stipulation. See United States Dep't of Veterans

Affairs Medical Center, Providence, R.I., 49 FLRA

110, 116 (1994). This practice is consistent with the

language of the Statute, which _ reflects

Congressional intent to apply private sector labor

arbitration practice to the practice under the

Statute. See § 7122(a)(2).

In New York State Council, the Authority noted

that the Arbitrator framed the merits issue for

resolution as whether the Agency violated the

collective bargaining agreement when it issued a

new smoking policy and that the award resolved

this issue. See 60 FLRA at 891. In _ these

30a

circumstances, the Authority concluded that the

Arbitrator properly confined herself to determining

whether the Agency violated the agreement and

was not obligated to address and resolve whether

the Agency's actions violated the Statute. In

support of this conclusion, the Authority cited its

decision in AFGE Local 1367, 60 FLRA 187 (2004)

(Chairman Cabaniss dissenting) for the proposition

that an arbitrator is not obligated to address

whether an agency's actions violated law where, in

the absence of a stipulation of issues by the parties,

the arbitrator framed the issue only in terms of a

violation of the collective bargaining agreement.

In its motion for reconsideration, the Union does

not directly challenge the Authority's practice of

deferring to an arbitrator's formulation of the

issues to be decided, in the absence of the parties'

stipulation of the issues. Instead, the Union argues

that the failure of the Arbitrator and the Authority

to decide the unfair labor practice claims in this

case was contrary to § 7116(d) of the Statute.! In

the Union's view, § 7116(d) provides the Union not

only with a unilateral right to raise unfair labor

practice allegations under a negotiated grievance

1 Section 7116(d) pertinently provides: "Except for

matters wherein... an employee has an option of

using the negotiated grievance procedure or an

appeals procedure, issues which can be raised

under a grievance procedure may, in the discretion

of the aggrieved party, be raised under the

grievance procedure or as an unfair labor practice

under this section, but not under both procedures."

dla

procedure, but also entitles it to a resolution of

those allegations by the arbitrator along with a

right of review of the award by both the Authority

and a United States court of appeals to determine

whether the resolution of the allegations was

consistent with the Statute.

For the reasons that follow, we reject this claim

and conclude that § 7116(d) does not provide a

basis for reconsidering the application of the

Autherity's practice of deferring to an arbitrator's

formulation of the issues for resolution in the

absence of a stipulation, even where a party alleges

an unfair labor practice before the arbitrator.

As the Authority has repeatedly acknowledged,

§ 7116(d) is an election-of-remedy provision and its

purpose and effect is to prevent relitigation of an

issue in another forum after a selection of forum in

which to raise the issue has been made by the

aggrieved party. See, eg., AFGE, Council 170,

Local 2128, 58 FLRA 316, 317 (2003) (citing Fed.

Bureau of Prisons, 18 FLRA 314, 316 (1985)). By its

language, § 7116(d) confirms that issues that can

properly be raised as an unfair labor practice or as

a grievance may in the discretion of the aggrieved

party be raised under the negotiated grievance

procedure or the statutory unfair labor practice

procedure, but not under both procedures. It is

similar to other choice-of-forum provisions in the

Statute, such as § 7121(d).2 The essential feature of

2 Section 7121(d) provides that complaints of

employment discrimination that are not excluded

from the applicable negotiated grievance procedure

may be raised as a grievance or as a statutory

32a

these choice-of-forum provisions in the Statute is

the confirmation that certain claims can be pursued

under a negotiated grievance procedure or another

statutory procedure and that aggrieved parties

must choose only one procedure under which to

pursue their claim.

The Union has pointed to no wording in the

Statute or other authority establishing that in

addition to mandating an election of forums for the

purpose of preventing relitigation, § 7116(d) also

mandates a merits resolution of the unfair labor

practice allegation by the arbitrator if a grievance

is filed, as well as Authority and judicial review of

the resolution of the allegation. We note, in this

regard, that if an aggrieved party elects under §

7116(d) to file an unfair labor practice charge with

the Authority and the Authority's General Counsel

determines that an unfair labor practice issue is

not presented and decides not to issue a complaint,

then § 7116(d) does not entitle the party to a

resolution by the Authority of whether an unfair

labor practice was committed. Thus, adopting the

Union's approach would provide those who chose to

use the grievance procedure, rather than the

procedures of § 7118 of the Statute, to litigate

alleged unfair labor practices witn an inequitable

advantage. This same inequity would extend to

judicial review by a United States court of appeals

under § 7123 of the Statute,’ which is not available

equal employment opportunity complaint, but not

both.

3 Section 7123(a) provides that the Authority's

decision resolving exceptions to an arbitration

33a

with respect to a determination of the General

Counsel that no unfair labor practice was

presented. See Turgeon v. FLRA, 677 F.2d 937

(D.C. Cir. 1982) (a determination not to issue an

unfair labor practice complaint is not reviewable by

the Authority and generally is not reviewable by a

court).

Without any textual or other support for the

Union's argument that § 7116(d) requires

arbitrators to always address and resolve alleged

unfair labor practice allegations that a party may

raise, we decline to impose such a requirement.

instead, in our view, aggrieved parties elect the

forum as it is constituted under the provisions of

the Statute.

Furthermore, no other basis has_ been

established for fashioning a special rule under the

Statute solely for unfair labor practice allegations

submitted to arbitration. That is, we see no basis

for treating such allegations different from other

contrary-to-law allegations, or any grievable issue

for that matter. Under the definition of grievance

set forth in § 7103(a)(9) of the Statute, claims based

on alleged violations of law, as well as claims based

on other grounds, are all grievable under the

Statute. The Union provides no basis on which to

support its contention that statutory unfair labor

practice grievances warrant special consideration

under the Statute.

award under § 7122 of the Statute is not judicially

reviewable "unless the order involves an unfair

labor practice under § 7118].]"

34a

Accordingly, we deny the Union's motion for

reconsideration of our denial of its exceeded

authority exception in New York State Council.‘

We also reject the Union's second assertion that

reconsideration is warranted because, contrary to

the finding of the Authority, the Arbitrator did not

interpret and apply the parties' agreement in

denying the grievance. In New York State Council,

the Authority expressly noted that the Arbitrator

specifically framed the merits issues as whether

the Agency violated the agreement when it issued a

new smoking policy and that in denying the

4 Even if we were to address the alleged unfair

labor practices, we would nonetheless find that the

denial of the grievance was not deficient.

Specifically, the Arbitrator found that the Agency

did not breach the agreement. Authority precedent

establishes that unless there is a breach of an

agreement, there can be no repudiation in violation

of the Statute, as was alleged by the Union at

arbitration. See, e.g., Dep't of the Air Force, 375th

Mission Support Squadron, Scott Air Force Base,

Ill., 51 FLRA 858, 862 (1996) (the first element that

must be established to support an allegation of

repudiation in violation of the Statute is that the

respondent's actions constituted a breach of the

agreement that was clear and patent). In addition,

the record establishes that the Arbitrator enforced

lawful, agreed-upon limits on the obligation to

bargain and that, consequently, the Agency's

actions did not constitute a failure to bargain. See

AFGE Local 3529, 52 FLRA 1313, 1319-20 (1997).

35a

grievance, the Arbitrator specifically interpreted

and applied the agreement when she found that the

Agency did not violate the agreement when it

issued a new smoking policy. See 60 FLRA at 890-

91. The Union's assertion that the Arbitrator did

not apply the agreement fails to establish a factual

error by the Authority warranting reconsideration.

V. Order

The Union's motion is denied.

36a

APPENDIX C

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

—_—

ASSOCIATION OF CIVILIAN TECHNICIANS

NEW YORK STATE COUNCIL

(Union)

and

UNITED STATES DEPARTMENT OF

DEFENSE NATIONAL GUARD BUREAU

STATE OF NEW YORK DIVISION OF

MILITARY AND NAVAL AFFAIRS

(Agency)

0-AR-3877

DECISION

May 4, 2005

Before the Authority: Dale Cabaniss,

Chairman, and Carol Waller Pope and Tony

Armendariz, Members.

I. Statement of the Case

This matter is before the Authority on

exceptions to an award of Arbitrator Elizabeth C.

Wesman filed by the Union under § 7122(a) of the

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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 exceptions.

The Arbitrator denied the grievance over the

Agency's implementation of a new smoking policy.

For the reasons set forth below, we deny the

Union's exceptions.

II. Background and Arbitrator's Award

On March 26, 2003, the New York State Clean

Indoor Air Act was amended to prohibit smoking

indoors in the workplace. As a result, the Adjutant

General of the New York Army and Air National

Guard issued a new smoking policy that prohibited

all smoking in all facilities occupied by the New

York Army and Air National Guard.

In response to union concerns over the new

smoking policy, the New York Division of Military

and Naval Affairs (DMNA) advised that the

amendments to the New York State Clean Indoor

Air Act were binding on it and that it was required

to ban smoking in any facility under its control.

The Union filed a grievance. The grievance was not

resolved and was submitted to arbitration.

The parties were unable to stipulate the issues

for resolution. After reviewing the parties’ proposed

statements of issues and determining that "at the

heart of this case is a dispute over the

interpretation and application of the language of

the Parties' Collective Bargaining Agreementf{,]"

the Arbitrator found the issues in this case to be as

follows:

Did the Agency violate the Collective

Bargaining Agreement when it issued a

new smoking policy .. .?

If so, what should the remedy be?

Award at 20, 2.

Before the Arbitrator, the Union claimed that

the Agency's unilateral implementation of the new

smoking policy and its refusal to rescind the policy

violated the parties' agreement and constituted

unfair labor practices. The Union asserted that

these actions violated Article 6, Section 4, which

requires local negotiation of smoking rules, and

Article 7, which requires state-level negotiation of

matters not resolved at the local level. The Union

also asserted that these actions constituted unfair

labor practices because the Agency unilaterally

changed conditions of employment and because the

Agency patently breached the collective bargaining

agreement.

The Union also maintained that the Agency

could not rely on state law because "state law does

not trump federal law." Jd. at 18. The Union argued

that no federal law authorizes state regulation of

the conditions of employment of federal employees.

Before the Arbitrator, the Agency asserted that the

new smoking policy was not subject to negotiation

because it implemented a mandate to the Agency

under law, which implementation was essentially

nondiscretionary in nature.

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The Arbitrator denied the grievance. She found

that the Agency did not violate the parties’

collective bargaining agreement when it issued the

new smoking policy. She ruled that, by limiting

negotiations to matters "within the purview" of the

Agency's smoking policy, Article 6, Section 4 of the

agreement "limits the parties’ latitude to negotiate

employee smoking rules."! Id. at 23. She ruled that

the Adjutant General's new smoking policy

removed discretion over the policy from “the

purview of the DMNA." 7d. at 24. The Arbitrator

concluded that, as a result, the parties’ agreement

permitted the Agency to refuse to bargain over the

policy. See id.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award is deficient

because "the arbitrator improperly failed to address

whether the agency's action was an unfair labor

practice." Exceptions at 8. In this respect, the

Union claims that the undisputed facts establish

that the agency's conduct constituted a unilateral

change of conditions of employment without

bargaining and a patent breach of the collective

| Article 6, Section 4 provides: "The Chapter

President . . . will meet with the local facility

supervisors to negotiate over rules governing

employees smoking within the purview of The

Adjutant General's DMNA smoking policy letter."

Award at 3.

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bargaining agreement, both in violation of the

Statute.

The Union also contends that the award is

contrary to law. In contending that the award is

contrary to law, the Union asserts that the

circumstances under which federal employees are

allowed to smoke in the workplace are negotiable

conditions of employment. The Union maintains

that only federal law can authorize state regulation

of federal facilities. The Union argues that without

a federal statute, the matter of smoking could not

be removed from the purview of the DMNA.

B. Agency's Opposition

The Agency argues that the Arbitrator properly

determined that the DMNA was required to

implement New York state law prohibiting indoor

smoking in the workplace and had no discretion.

The Agency disputes that the Arbitrator failed to

address whether the Agency committed any unfair

labor practices. The Agency asserts that the

Arbitrator addressed the Agency's actions, but

found that they did not constitute unfair labor

practices.

IV. Analysis and Conclusions

A. The Arbitrator did not exceed her

authority.

The Union contends that the award is deficient

because "the Arbitrator improperly failed to

address whether the Agency's action was an unfair

labor practice." Jd. We view this as a contention

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that the award is deficient because the Arbitrator

exceeded her authority. Arbitrators exceed their

authority when, among other things, they fail to

resolve an issue submitted to arbitration. See, e.g.,

AFGE Local 1367, 60 FLRA 187, 190 (2004)

(Chairman Cabaniss dissenting). In this case, we

agree with the Union that the Arbitrator did not

address whether the Agency's actions constituted

unfair labor practices under the Statute. However,

we conclude that the Union fails to establish that in

not addressing whether the Agency committed any

unfair labor practices, the Arbitrator exceeded her

authority.

The parties in this case were unable to stipulate

the issues for resolution. After reviewing the

parties’ proposed statements of issues, the

Arbitrator found that "at the heart of this case is a

dispute over the interpretation and application of

the language of the Parties' Collective Bargaining

Agreement." Award at 20. Accordingly, the

Arbitrator framed the issues in this case, as

follows:

Did the Agency violate the Collective

Bargaining Agreement when it issued a

new smoking policy .. .?

If so, what should the remedy be?

Id. at 2. The award is precisely a resolution of these

issues.

In these circumstances, the Arbitrator properly

confined herself to determining whether the Agency

violated the agreement. In the absence of a

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stipulation that also included the issue of whether

the Agency committed any unfair labor practices,

the Arbitrator was. not obligated to address and

resolve whether the Agency's actions violated the

Statute. See AFGE Local 1367, 60 FLRA at 190

(where, in the absence of a stipulation of issues by

the parties, the arbitrator framed the issue in

terms of a violation of the collective bargaining

agreement, the arbitrator was not obligated to

address whether the agency's actions violated law).

Moreover, because the Arbitrator was not obligated

to address and resolve whether the Agency's

actions violated the Statute, the Union's claim that

the Agency's conduct constituted unfair labor

practices provides no basis for finding the award

deficient. See id. (Authority determined that union

failed to show how award confined to interpreting

the parties' agreement was contrary to law).

Accordingly, we deny this exception.

B. The award is not contrary to law.

We review questions of law raised by exceptions

to an arbitrator's award de novo. See NTEU

Chapter 24, 50 FLRA 3380, 332 (1995). In applying a

standard of de novo review, we determine whether

the award is consistent with the applicable

standard of law. See NFFE Local 1437, 53 FLRA

1703, 1710 (1998).

In denying the grievance, the Arbitrator found

that under the terms of Article 6, Section 4, the

parties agreed that the Agency was obligated to

bargain only over matters "within the purview of

the Adjutant Generalf][.]" Award at 3. The

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Arbitrator ruled that the matter of indoor smoking

had been removed from the discretion and purview

of the Adjutant General. Consequently, she found

no duty to bargain under the agreement on the

circumstances under which technicians could

smoke. We reject the Union's claim that this award

is contrary to law.

The Authority has repeatedly acknowledged

that parties are permitted to define through

negotiations their bargaining obligations under the

Statute. See, e.g., Dep't of the Air Force, Air Force

Materiel Command, Wright-Patterson Air Force

Base, Ohio, 51 FLRA 1582, 1536 (1996); accord

AFGE Local 3529, 52 FLRA 1313, 1319 (1997).

Unless the contract provision is unenforceable,

"once the parties have defined their bargaining

obligation. through an agreement, the issue of

whether the parties have complied with the

agreement becomes a matter of contract

interpretation for the arbitrator." AFGE Local

3529, 52 FLRA at 1319.

The Arbitrator interpreted Article 6, Section 4

as defining the parties' bargaining obligation over

smoking and lir'ting that obligation to matters

that were "within the purview of the Adjutant

General's DMNA smoking policy letter." The Union

fails to establish that, as interpreted by the

Arbitrator, the agreement is unenforceable. In

particular, the Union does not argue, and no basis

is provided for finding, that the parties were

prohibited from defining through negotiations their

bargaining obligations under the Statute over

smoking. Consequently, as interpreted by the

Arbitrator, Article 6, Section 4 is enforceable. As

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the Arbitrator was simply enforcing lawful, agreed-

upon limits on the parties’ obligation to bargain on

the circumstances under which technicians could

smoke, the award is not contrary to law.* Cf. Soc.

Sec. Admin., Baltimore, Md., 55 FLRA. 1063, 1069

(1999) (because parties are not prohibited from

agreeing to a contract provision regarding a matter

covered under § 7106(b)(1) of the Statute, such a

provision is enforceable in arbitration, and an

award enforcing the contractual provision is not

contrary to law); accord United Stutes Dep't of the

Treasury, Internal Revenue Serv., Washington,

D.C., 56 FLRA 393, 395-9€ (2000).

Accordingly, we deny this exception.

2 This case does not present, and we do not address,

the question of whether the Agency would have

been obligated to bargain over the impact and

implementation of the new smoking policy. The

Union never requested to bargain over impact and

implementation; the Union's only request was to

bargain over the substance of the smoking policy

and its unfair labor practice allegations were

limited to the Agency's refusal to bargain over the

substance of the smoking policy.

3 In denying this exception, we emphasize that we

have reviewed the Arbitrator's award and not the

Arbitrator's reasoning in determining that the

matter of smoking was not within the purview of

the Adjutant General's DMNA smoking policy

letter. See NTEU Chapter 137, 60 FLRA 483, 487

n.11 (2004) (question before the Authority was

whether the award was contrary to law and not

V. Decision

The Union's exceptions are denied.

whether the arbitrator's reasoning was correct);

United States Dep't of the Navy, Supervisor of

Shipbuilding Conversion and Repair, Pascagoula,

Miss., 57 FLRA 744, 746 n.5 (2002) (Authority

reviews whether the award is deficient and not

whether the arbitrator's reasoning is deficient).

Although the Union alleges that the reasons on

which the Arbitrator based her determination that

the matter of smoking was not within the purview

of the Adjutant General's DMNA smoking policy

letter are contrary to law, it is well established that

the Authority does not review an arbitrator's

reasoning in interpreting and applying a collective

bargaining agreement. See, e.g., NATCA, 55 FLRA

1025, 1028 n.7 (1999); United States Dep't of

Justice, Immigration and Naturalization Serv.,

Honolulu Dist. Office, Honolulu, Haw., 41 FLRA

207, 212-13 (1991).

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APPENDIX D

FEDERAL MEDIATION AND CONCILIATION

SERVICE

IN THE MATTER OF AN ARBITRATION

BETWEEN

U.S. DEPARTMENT OF DEFENSE,

NATIONAL GUARD BUREAU STATE OF NEW

YORK DIVISION OF MILITARY AND NAVAL

AFFAIRS

AND

ASSOCIATION OF CIVILIAN TECHNICIANS,

NEW YORK STATE COUNCIL

Case No. 041223-02418-8

Subject: Labor Management

Agreement Violation

ARBITRATOR

ELIZABETH C. WESMAN, Ph.D.

APPEARANCES

For the Employer: Paul Sausville, Esq.

Agency Counsel

For the Union: Richard M. Woods

NYS Chairman—ACT

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ALSO PRESENT

For the Employer: Colonei Garry J.

Colloton—Human Resource

Officer

Lynn M. Crouse—Supervisor

Human Resources Specialist

John Lankenau—Labor

Relations Specialist

For the Union: Daniel E. Shook—Chapter

President at ACT, Schenectady

Chapter

PROCEEDINGS

U.S. Department of Defense, National Guard

Bureau State of New York Division of Military and

Naval Affairs (“Employer”) and Association of

Civilian Technicians, New York State Council

(“Union”) selected me to act as hearing officer in

this matter. The hearing was held on May 12,

2004, at the Division of Military and Naval Affairs

HQ building in Latham, New York, at which time

both Parties were afforded full opportunity to

present testimonial and documentary evidence.

The Parties elected to file post-hearing briefs.

Following receipt of the briefs the Arbitrator

declared the record closed.

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ISSUES

At the hearing the parties were unable to

stipulate to an issue. After reviewing their

respective proposed issues I find the issue in the

case to be as follows:

Did the Agency violate the Collective

Bargaining Agreement when it issued a

new smoking policy letter on 23 July 2003?

If so, what should the remedy be?

PERTINENT CONTRACT PROVISIONS AND

LAWS

LABOR/MANAGEMENT AGREEMENT

| BETWEEN

THE NEW YORK NATIONAL GUARD

AND

ASSOCIATION OF CIVILIAN

TECHNICIANS

2001-2004

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ARTICLE 6

UNION RIGHTS

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Section 3. Representation Rights and

Duties

An exclusive’ representative of an

appropriate unit in an agency shall be given the

opportunity to be represented at any formal

discussion between one or more representatives

of the agency and one or more employees in the

unit or their representatives concerning any

grievance or any personnel policy or practices or

other general conditions of employment.

Section 4. Smoking Policy

In each chapter area, the Chapter President or

their representative will meet with the local

facility supervisors to negotiate over rules

governing employees smoking within the

purview of the Adjutant General’s DMNA

smoking policy letter.

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ARTICLE 7

UNION-MANAGEMENT COOPERATION

Section 1. Consultation

DMNA agrees that under the provisions of PL

95-454, ACT is entitled to consultation meetings

between its representatives and those of DMNA.

a. DMNA agrees, if issues or problems develop

that cannot be resolved on local level, to

meet with the State Chairman of ACT ora

duly appointed representative, at a location

mutually agreed upon by both parties, to

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discuss such issues or problems. Such

meetings will be held as often as necessary.

. At any installation, the supervisor will refer

matters of concern that cannot be resolved

by meetings between the supervisor and the

steward to his next level supervisor and by

the steward to his chapter president.

c. A meeting will be held at any level when

requested by DMNA or ACT whenever the

subject matter to be resolved is important.

. Meeting described in paragraphs (a), (b), and

(c) above will be held during normal working

hours.

Section 2. Consultation Definition

For the purposes of this Agreement,

consultation is defined as meeting, conferring

and negotiating in regard to policies, programs,

and practices related to working conditions of

members of the unit which are the purview of

DMNA, in an effort to reach mutual

understanding or agreement.

Section 3. DMNA Consultation Matters

Matters appropriate for consultation and

negotiation between the parties are personnel

policies, programs, and practices related to

working conditions, which are within the

purview of DMNA. These matters include but

are not limited to such matters as safety,

training, labor-management relations, employee

services, methods of adjusting grievances,

appeals, leave, promotion policies, demotion

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practices, reduction-in-force matters, and hours

of work.

Section 4. Excluded Consultation

Matters

No obligation exists to consult or negotiate with

the Union with respect to the mission of an

agency, its budget, its organization, the number

of employees, and the numbers, types and

grades of positions of technicians assigned to an

organizational unit, work project or tour of duty,

the technology of performing its work, or its

internal security practices. This does not

preclude the _ parties from negotiation

agreements providing appropriate

arrangements for technicians adversely affected

by the impact of realignment of work forces or

technological change.

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ARTICLE 32

DURATIONS AND CHANGES

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Section 2. Agreement

Amendments/Supplements

This agreement may be opened at any time by

consent of both parties. Also, modifications or

amendments of this agreement may be required

because of changes in applicable laws. Any

request for modifications or amendments shall

be in writing and must be accompanied by a

summary of the modifications or amendments

proposed and the reasons therefore. When the

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modification or amendment is required and both

parties consent to opening the agreement,

representatives of DMNA and ACT will meet to

negotiate the matter and no changes other than

those required or those covered by the summary

shall be considered. Such modifications or

amendments shall be subject to the approval of

the Department of Defense (DOD) and will be

effective on a date determined to be appropriate

under the circumstances.

NEW YORK STATE PUBLIC HEALTH LAW

kk *

§1339-n.

For purposes of this article:

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2. “Employer” means any person, partnership,

association, limited liability company,

corporation or nonprofit entity which employs

one or more persons, including the legislative,

executive and judicial branches of state

government and any political subdivision of the

state.

NEW YORK STATE MILITARY LAW

§182. Control of armories and other

facilities

1. All armories, arsenals, camps, ranges, bases

and other facilities owned, leased or maintained

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by the state or by the United States for the use

of the organized militia and all activities

conducted therein shall be under the general

charge and control of and shall be regulated by

the adjutant general. He shall be responsible to

the governor for the proper expenditure of all

moneys appropriated therefore.

2. When two or more units of different forces of

the organized militia are stationed in one

armory, arsenal, camp, range, base or other

facility, the adjutant general shall designate the

officer to be in indirect charge and control

thereof, shall apportion the quarters and

facilities therein to be occupied by each unit and

shall regulate the military use and care thereof.

The adjutant general shall also designate the

officer to be in direct charge and control of any

armory, arsenal, camp, range, base or other

facility which the adjutant general may retain

under his sole jurisdiction.

3. Except as provided in subdivision two hereof,

the commander of the force concerned shall

designate the officer to be in direct charge and

control of each armory, arsenal, camp, base or

other facility. All officers so designated

pursuant to this subdivision and subdivision

two hereof shall observe and enforce all laws,

orders and regulations applicable to such

armory, arsenal, camp, range, base or other

facility, their furnishings, equipment, contents

and all activities conducted therein and to the

persons employed therein. They shall perform

such other duties and functions as may be

prescribed by the adjutant general.

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4. Subject to the regulations of the adjutant

general, officers in charge and control so

designated may establish and conduct stores,

restaurants, messes and places of recreation in

the armory, arsenal, camp, range, base or other

facility under their charge and control or they

may enter into agreements with responsible

parties for establishing and conducting the

same.

5. The adjutant general and any officer

designated by him, shall have access to all parts

of all armories and other facilities at all times.

NEW YORK STATE EXECUTIVE LAW

§190. Division of Military and Naval

Affairs

1. Notwithstanding the provisions of any other

law, the head of the division of military and

naval affairs shall be the adjutant general who

shall be appointed by the governor and who,

except when any one of such officers shall be in

the active service of the United States, shal] be

the commanding general of the New York army

national guard, the commander of the New York

air national guard or the commanding officer of

the New York naval militia. The governor may

exercise and perform his functions, powers and

duties as commander-in-chief of the militia of

the state in whole or in part through such

division....

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BACKGROUND

On August 19, 1997, then-President Clinton

issued Executive Order 13058 (EO 13058)

regarding the Federal Government's concerns

about smoking in Federal workplaces. That

Executive Order read in pertinent part as follows:

PROTECTING FEDERAL EMPLOYEES

AND THE PUBLIC FROM EXPOSURE TO

TOBACCO SMOKE IN THE FEDERAL

WORKPLACE

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Section 1. Policy. It is the policy of the

executive branch to establish a smoke-free

environment for Federal employees and

members of the public visiting or using Federal

facilities. The smoking of tobacco products is

thus prohibited in all interior space owned,

rented, or leased by the executive branch of the

Federal Government, and in any outdoor areas

under executive branch control in front of air

intake ducts.

Section 2. Exceptions. The general policy

established under this order is subject to the

following exceptions:

(a) The order does not apply in designated

smoking areas that are enclosed and exhausted

directly to the outside and away from air intake

ducts, and are maintained under negative

pressure (with respect to surrounding spaces)

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sufficient to contain tobacco smoke within the

designated area. Agency officials shall not

require workers to enter such areas during

business hours while smoking is ongoing.

(b) The order does not extend to any residential

accommodation for persons voluntarily or

involuntarily residing, on a temporary or long-

term basis, in a building owned, leased, or

rented by the Federal government.

(c) The order does not extend to those portions

of federally owned buildings leased, rented or

otherwise provided in their entirety to

nonfederal parties.

(d) The order does not extend to places of

employment in the private sector or in other

nonfederal governmental units that serve as the

permanent or intermittent duty station of one or

more Federal employees.

ee

Section 7. Consistency with Other Laws. The

provisions of this order shall be implemented

consistent with applicable law, including the

Federal Service Labor-Management Relations

Act (5 U.S.C. § 7101 et. seg.) and the National

Labor Relations Act (29 U.S.C. § 151 et seq.).

Provisions of existing collective bargaining

agreements shall be honored and agencies shall

consult with employee labor representatives

about the implementation of this order.

Nothing herein shal! be construed to impair or

alter the powers and duties of Federal agencies

established under law. Nothing herein shall be

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construed to replace any agency policy currently

in effect, if such policy is legally established, in

writing, and consistent with the terms of this

order. Agencies shall review their current policy

to confirm that that agency policy comports with

this order, and policy found not in compliance

shall be revised to comply with the terms of this

order.

Approximately 3% years later the United States

Department of Defense issued Instruction No.

1010.15, entitled “Smoke Free DoD Facilities.”

That instruction read in pertinent part as follows:

k*ke*

6. PROCEDURES

DoD Components shall:

6.1. Control worker exposure to ETS by

eliminating smoking in DOD facilities.

6.2. Designate “outdoor smoking areas,” when

possible, which are reasonably accessible to

employees and provide a measure of protection

from the elements. Since ETS is classified as a

“potential Class A carcinogen,” exposure to ETS

shall be reduced to the lowest possible

concentration. Smoke-break areas only should

be outdoors and away from common points of

ingress and/or egress into and/or out of the DoD

facility and not in front of building air intake

ducts.

6.3. Prohibit indoor designated smoking areas

unless exempted under Sections 2(a) through

2(d), or 2(e) of E.O. 13058 (reference (b)).

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6.4. Provide effective smcking cessation at all

levels of commands and contiiue to expand the

programs, as needed, as part of implementing

restrictions. Due to the highiy addictive nature

of tobacco, program emphasis shall be on

primary prevention practices that motivate DoD

personnel not to start smoking. Anti-smoking

education messages shall be provided to all

personnel. All smokers and high-risk personnel,

such as those with chronic respiratory and

cardiac conditions and those who are part of

special occupational groups, such as asbestos

workers, shall receive medical counseling about

the risks of smoking. . Lectures, films,

pamphlets, and other forms of health promotion

shall incorporate the latest available medical

research information on smoking, health, and

treatment.

6.5. Provide information on health risks posed

by involuntary inhalation of ETS in health

promotion education programs. Before

implementation of smoke-free DoD facilities, in

accordance with this Instruction, implement the

requirements in Chapter 71 of 5 U.S.C.

(reference (g)).

On June 4, 2003, the Executive Deputy Director

of the New York State Governor’s Office of

Employee Relations issued Memorandum OER 03-

02 regarding a smoking prohibition for all facilities

run by employers in the State. The memorandum

read in pertinent part as follows:

The New York State Clean Indoor Air Act,

which originally became law on January 1,

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1990, was amended by the Legislature and

signed into law by Governor Pataki on March

26, 2003 to take effect on July 24, 2003. The

law now requires every employer in the State to

provide smoke-free work areas for all employees

in the workplace

Accordingly, effective July 24, 2003,

smoking is prohibited in any indoor work

area.

Indoor work area shall mean a_ room,

hallway, stairway, bathroom, office, State car,

garage, or any other area with a roof or other

ceiling enclosure in which State employees may

be required to work, occupy, or frequent. All

cafeterias and lunchrooms must be designated

non-smoking areas. With one exception, noted

below, smoking rooms are no longer authorized.

“No Smoking” signs or the international

symbol for no smoking shall be prominently and

conspicuously posted in all work areas. Signage

at all entrances to State-occupied buildings,

floors, or offices that the entire area is a smoke-

free area is recommended.

To help ensure constructive implementation

of the law, labor/management “meet and confer”

discussion is encouraged in order to develop

ways to promote education and awareness of the

hazards of smoking and to ensure that the legal

mandates and philosophy behind the policy are

known to all.

No appointing authority or designee shall

have the discretion to authorize or negotiate any

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variance to the law. Union demands regarding

the impact on terms and conditions of

employment are to be directed toGOER....

Following receipt of that memorandum, on June

30, 2003, New York Army National Guard

(NYANG) Chief Warrant Officer 4, Richard Hughes

forwarded a copy of the newly revised smoking

policy sent to him by Major General Thomas P.

McGuire, Adjutant General, NYANG, to ACT State

Chairman Richard Woods. That policy read as

follows:

SUBJECT: Smoking Policy for Division of

Military and Naval Affairs (DMNA) Facilities

(Policy #13)

1. Reference, memorandum, MNAG-TAG, 26

July 1990, subject: DMNA Smoking Policy.

2. The above referenced memorandum is

rescinded in its entirety.

3. The amendment to the New York State Public

Health Law, effective 24 July 2003, prohibits all

smoking in National Guard Facilities occupied

by the New York Army and Air National Guard

and civilian employees. Designated smoking

areas must be located outdoors and not in the

immediate proximity of entrances. This policy

will provide consistency throughout the state.

4. It is my desire to protect the health of our

employees by ensuring that they are not

exposed to secondhand tobacco smoke within

New York National Guard facilities.

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5. Managers and supervisors are expected to

ensure the above policy is adhered to. The intent

of this policy is to make this agency a better

place in which to work by upgrading the health

and safety of the working environment.

By letter of July 21, 2003, Mr. Woods sent a letter

to TSgt. John Lakenau, Labor and Employment

Relations Specialist, Division of Military and Naval

Affairs, in which he expressed the union’s concerns

regarding the revised smoking policy. His letter

reads in essential parts as follows:

I received your letter dated 30 June 2003

requesting impact and_ implementation

bargaining on the proposed smoking policy

change for all NY State Federal employees. As

you are aware we already have Contractual

language that deals with smoking in the

workplace for all Federal employees who work

in NY State.

We hereby request the following information to

determine whether it is appropriate to negotiate

a new agreement based on the change in the NY

State law.

1. A copy of the Law that has precipitated the

change in the Contract language.

2. Please identify the facilities in NY State that

are Federal and those that are State.

3. Please provide any information that requires

Federal employees who work on _ Federal

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installations to comply with the State law

requirement.

On August 4, 2000, TSgt. Lakenau responded to

Mr. Woods’ letter as follows:

In response to your letter dated July 21,

2003, provided below is the information you

requested.

The law that precipitated the change in

contract language requiring the Division of

Military and Naval Affairs to prohibit smoking

in all facilities under its control is Assemble Bill

A7136, signed into law by Governor Pataki on

26 March 2003. A copy of the legislation is

enclosed.

The legislation amends Article 13-E of the

Public Health Law by prohibiting smoking in

any place of employment. Employer is defined

as “any person ... which employs one or more

persons, including the. . . executive and judicial

branches of state government and any political

subdivision thereof.”

As you are aware, the Division of Military

and Naval Affairs (DMNA) and the New York

National Guard are part of the executive branch

of New York State government. Accordingly, we

are obligated to follow and enforce state law in

any facility under the Adjutant General’s (TAG)

control, including our air bases. Additionally,

the employees at all our facilities are under

TAG control, making him, and the DMNA, an

employer under the definition provided above.

Nowhere is this fact more clear than in the

63a

language of our Collective Bargaining

Agreement itself, which is negotiated between

the DMNA as the employer, and the Association

of Civilian Technicians (ACT).

As to your request for information regarding

“Federal” versus “State” facilities. All facilities

of the New York Air and Army National Guard

are under the control of TAG and the DMNA.

Some of those facilities are, however, located on

federally owned or leased property. Assuming

this is what you intended in differentiating

between “federal” versus “state” facilities,

attached is a list of DMNA facilities that are

“federal” and “state.”

Finally, you requested “any information that

requires Federal employees who work on

Federal installations to comply with the State

Law requirement.” The current smoking policy

is as much an issue about the employer

complying with the state law as it is employee

compliance. As discussed above, the law

prohibits an employer from allowing smoking in

any facility under its control. It is our position

that this law is binding on us as an executive

agency and we must comply by banning

smoking in any facility under our control.

In addition to the state law requiring us to

ban smoking in facilities under our control,

there is also DOD guidance regarding smoking

in indoor work areas. As you are aware, DOD

Instruction 1010.15, Executive order 13058, and

41 CFR 101-20 prohibit smoking in indoor work

areas. Granted, these policies may not extend

64a

to “nonfederal governmental units that serve as

the permanent or intermittent duty station of

one or more Federal employees.” As DMNA is a

nonfederal governmental unit, there is an

argument to be made that the DOD instructions

do not apply. Regardless, the DOD Instruction,

Executive Order, and 41 CFR 101-20 are

provided, for your information.

On August 18, 2003, Mr. Woods reiterated the

Union’s position:

This letter is in response to your letter dated

August 4, 2003 as it pertains to the smoking

policy change proposed by the Adjutant General.

After reviewing the Code of Federal Regulations

(title 41, volume 2), the Executive Order (13058)

and the Department of Defense Instruction

(1010.15), it is clear that the language that we

have in the existing Negotiated Agreement will

meet the intent of the law. Furthermore, the

State law does not apply to federal facilities.

Please advise the New York State Council of

ACT if you want to open the Contract to

renegotiate the current smoking policy.

The Union and the NYSDMNA exchanged

subsequent correspondence regarding the newly

implemented policy, and met to discuss their

differing views on the matter. However, the

grievance remained unresolved. It was processed

in accordance with Article 27 of the Agreement

between the parties. Accordingly, it is properly

before me for resolution.

65a

POSITIONS OF THE PARTIES

The following positions of the Parties are

condensed and extrapolated from their respective

pre-hearing briefs.

Union. At the outset, the union maintains

that, under the federal collective bargaining law,

the circumstances in which federal employees are

allowed to smoke at work are negotiable conditions

of employment. See AFGE National Veterans

Administration Council, 40 FLRA 1052 (1991).

Where federal employees are represented by a

union, it is an unfair labor practice for an agency to

change employee working conditions without (a)

notifying the union in advance, (b) affording the

union opportunity to bargain over the proposed

change, and (c) maintaining the status quo until

bargaining is completed. Department of Health and

Human Services, Social Security Administration,

33 FLRA 454, 458 (1988); Department of Justice,

Immigration and Naturalization Service and

AFGE, National Board Patrol Council, 31 FLRA

145 (1988).

The union asserts that it is also an unfair labor

practice for an agency clearly and patently to

breach a_ collective bargaining agreement.

Department of the Air Force, Robins AFB and

AFGE Local 987, 52 FLRA 225 (1966) (agency’s

change in smoking policy was unfair labor practice

because it clearly and patently breached collective

bargaining agreement requiring negotiation of

changes in smoking policy). It points out that

Article 6, Section 4 of the parties’ collective

66a

bargaining agreement (supra) requires local

negotiation of smoking rules; and Article 7 requires

state level negotiation of any problem not solved at

the local level.

The union contends that the agency’s unilateral -

implementation of its July 23, 2003 policy imposing

a statewide ban on any indoor smoking by federal

employees and its refusal to rescind the policy

violated Article 6, Section 4 and Article 7 of the

parties’ collective bargaining agreement. In

addition, it insists the agency’s action was an

unfair labor practice—both because it was a

unilateral change in working conditions without

notice, opportunity to bargain, and preservation of

the status quo pending completion of bargaining,

and because it was a clear and patent breach of

Article 6, Section 4 of the collective bargaining

agreement,

It is the position of the Union that the agency’s

assertion that its actions were required by state

law is not a defense to the union’s grievance. State

law doe not trump federal law. On the contrary,

federal law trumps state law. In NAGE Local RI-

203 and Department of the Interior, Fish and

Wildlife Service, 55 FLRA No. 176 (1999), the union

asserted that it could by negotiated agreement

require the agency to comply with state law when

the agency exercised its federal right to discipline

employees. The Federal Labor Relations Authority

rejected this argument, holding that state law was

not an “applicable law” restraining management's

federal right.

67a

The exercise of management’s rights under

section 7106(a)(2) of the Statute is limited by

“applicable laws.” See National Treasury

Employees Union and U.S. Department of the

Treasury, Internal Revenue Service, 42 FLRA

377, 388-91 (1991), enforcement denied on other

grounds, 966 F.2d 1246 (D.C. Cir. 1993).

Proposals that require an agency to exercise its

management’s rights in accordance’ with

applicable laws are within the duty to bargain.

The Union’s claim that the proposal requires the

Agency to comply with section 99 is tantamount

to a claim that section 99 constitutes an

“applicable law” limiting management's right

under section 7106(a)(2)(A) to determine its

investigative techniques. The issue presented

by the Union’s claim is whether a Federal

agency's choice of investigative techniques

pursuant to its right to discipline employees

under section 7106(a)(2)(A) of the Statute may

be subjected to state law.

The relation between Federal and state law is

governed by the Supremacy Clause of the

United States Constitution, Article VI, clause 2,

which provides that the laws of the United

States “shall be the supreme Law of the Land;. .

. any Thing in the Constitution or Laws of any

State to the contrary notwithstanding.”

Additionally, “[a] corollary to [the Supremacy

Clause] is that the activities of the Federal

Government are free from regulation by any

state.” Mayo v. United States, 319 U.S. 441, 445

(1943). Further, it is “well settled” that the

activities of Federal instrumentalities are

68a

“shielded by the Supremacy Clause from direct

state regulation unless Congress provides ‘clear

and unambiguous’ authorization for such

regulation. Goodyear Atomic Corporation uv.

Miller, 486 U.S. 174, 180 (1988). See also

McFalls v. Office of Personnel Management, 72

MSPR 252, 261 (1996) (the Merit Systems

Protection Board (MSPB) “is a_ Federal

administrative tribunal established to

adjudicate claims arising under applicable

Federal statutes and regulations... . Therefore,

it generally must follow Federal law, rather

than state law.”)

The Union cites no Federal statute clearly and

unambiguously authorizing state regulation of

telephone surveillance conducted by Federal

agencies. Under the Supremacy Clause,

therefore, section 99 would not apply to the

recording of telephone conversations as provided

by Proposal 3. For that reason, section 99 is not

an “applicable law” that limits management’s

choice of investigative techniques pursuant to

its right to discipline employees under section

7106(a)(2)(A) of the Statute.

rhe union concludes that there is no federal law

that clearly and unambiguously authorizes state

regulation of any federal employee working

conditions, let alone the specific matter of smoking

policies. This being the case, the agency’s federal

obligations under the federal unfair labor statutes,

and its federal obligations under the collective

bargaining contract authorized by federal law, are

higher law than the state indoor smoking ban.

Accordingly, the Union argues that the grievance

69a

be sustained and that the Agency be ordered to

rescind its July 23, 2003 smoking policy.

Agency. It is the agency position that the

subject Policy Letter is not subject to negotiation as

it implements a mandate to the agency under law,

which implementation is essentially

nondiscretionary in nature. Additionally, it is the

agency's position that all facilities under DMNA

control are subject to state law and that all NY

National Guard military and naval facilities,

whether owned or licensed to the State of New

York, are under the control of the DMNA.

The Agency points out that, as stated in NY

Executive Law, Section 190, the DMNA is part of

the executive department of the State of New York

and “shall include the organized militia; the state

reserve list; the state retired reserve list; all offices,

headquarters, units, forces, commands, arsenals,

depots, armories, bureaus, agencies, bases, camps,

ranges, and other military (including air) and naval

facilities of the state and all military (including

air), naval and civilian personnel who may be

serving or employed therein.” It points out further

that New York Executive Law, section 190 (supra)

provides that “. . . the head of the division of

military and naval affairs shall be the adjutant

general. The governor may exercise and perform

his functions, powers and duties as commander-in-

chief of the militia of the state in whole or in part

through such division.” Moreover, Military Law

Section 2, subsection | provides that “the organized

militia shall be composed of the New York Army

National Guard; the New York Air National Guard

As provided in the Collective Bargaining

70a

Agreement, the DMNA is the employer in this case,

the agreement itself is executed by the Adjutant

General, a state officer.

The Agency notes that it is a unique employer

as it employs several categories of employees,

including purely’ state employees, Active

Guard/Reservists, Traditional Guardsmen and

Dual Status Military Technicians which are,

nominally, federal employees. ACT represents

these military technicians in bringing the current

grievance. It suggests that to adequately analyze

the current case an understanding of the technician

program and the relationship of technicians to the

Adjutant General is necessary.

As stated by the United States Court of Appeals

for the D.C. Circuit in American Federation of

Government Employees v. FLRA, 730 F.2d 1534,

The government in general and the National

Guard in particular cannot be easily analogized

to private sector firms dealing with employees.

Neither can national guardsmen be easily

analogized to other federal employees because,

except for federal benefits and tort claims

coverage, it was the intent of Congress in the

1968 Technician Act that they be_ the

equivalent of state employees subject to

employment, supervision and control by the

state adjutants general. Jd. at 1536 (emphasis

added).

The court of appeals went on to state,

7la

It thus appears that the scheme of the act is to

create the technicians as nominal federal

employees for a very limited purpose and to

recognize the military authority of the states

through their Governors and Adjutants General

to employ, command, and discharge them. The

employment, discipline, and discharge of

technicians remains completely with the state

officials, and their day to day activities on the

job are controlled at the state level. Jd. at 1538

(emphasis added).

A review of the legislative history of the

Technician Act of 1968 similarly reveals the

employment relationship to the states. Senator

Stennis, the sponsor and floor manager of the bill,

noted,

Mr. President, I shall now discuss the statutory

controls which the committee felt were essential

in order to recognize the military requirements

and state characteristics of the National

Guard. The underlying premise of these

controls which would supersede the normal

civil service rules and regulations is the fact

that the National Guard until it is called into

active Federal service is a state organization

subject to the sole command and control of

the Governor concerned. It is essential that

the technicians who constitute only about

8% of the total National Guard force be

subject to the same rules as the remaining

National Guard elements. 114 Cong. Rec.

12,251 (June 19, 1968) (emphasis added).

72a

Similarly, the Agency points out, in evaluating a

consolidation petition brought by ACT, the FLRA

has noted,

The state adjutants general have a role in labor

relations.

The petitioner’s view ignores both the hybrid

nature of technician employment and the

significance of the command in section 709(c) of

the Act, that the “Secretary concerned shall

designate the adjutant general to employ and

administer the technicians ...“ The Senate

report on the legislation that became the

Technicians Act explains that a “principal

feature” of the Act is the “[{rjequirement for

adjutants general to be the sole agent for

employment and administration of [the]

technician program under regulations

prescribed by the Secretary concerned.” S.R.

Rep. No. 1446 at 2, 90‘ Cong. 254 Sess. (1968)

(emphasis added). . . . DoD, National Guard

Bureau and ACT, 55 FLRA 657, citing American

Federation of Government Employees, AFL-CIO,

Local 2953 v. FLRA, 730 F.2d 1534, 1537-38

(D.C. Cir. 1984); see also Johnson vu. Orr, 780

F.2d 386, 392 (34 Cir. 1986).

Thus, the Agency asserts, the case law and

legislative history are clear: National Guard

technicians are nominal federal employees who are

employed by the Governors and Adjutants General

of their respective states. It insists that it is with

this in mind that the case must be analyzed.

In addition, the Agency disputes the Union's

contention that, in this matter, it has a duty to

73a

bargain. It notes that 5 U.S.C. § 7117 (a) (2)

provides: “(2) The duty to bargain in good faith

shall, to the extent not inconsistent with Federal

law or any Government-wide rule or regulation,

extend to matters which are the subject of any

agency rule or regulation, extend to matters which

are the subject of any agency rule or regulation

referred to in paragraph (3) of this subsection only

if the Authority has determined under subsection

(b) of this section that no compelling need (as

determined under regulations prescribed by the

Authority) exists for the rule or regulation.”

In determining whether a compelling need

exists, the FLRA has promulgated regulations

which establish standards to be applied’ in

determining whether any agency regulation

satisfies the “compelling need” criteria and is thus

exempt from the duty to bargain. These standards

are set out in 5 C.F.R. § 2424.11 which provides, in

part,

A compelling need exists for an agency rule or

regulation concerning any _ condition of

employment when the agency demonstrates

that the rule or regulation meets one or more of

the following illustrative criteria:

(c) The rule or regulation implements a

mandate to the agency or primary national

subdivision under law or other outside

authority, which implementation is

essentially nondiscretionary in nature

(emphasis added).

74a

In American Federation of Government Employees

uv. FLRA, 730 F.2d 1534 the court stated,

The Act clearly provides that the duty to

bargain does not extend to agency-wide rules

for which a “compelling need” exists as

determined by FLRA regulations. 5 U.S. C. §

7117 (a) (2). This limit on the duty of an agency

to bargain recognizes that within every agency

there exists a governmenta! mission which may

not be compromised or negotiated away, in

whole or in part, at the bargaining table. Id. at

1539.

The court went on to specifically state,

In this case it should also be recognized

that the personnel here are only nominal

federal employees and that the subject

bargaining proposal is directed at a facet of the

employees’ status that is not within the federal

orbit but is instead completely within those

aspects of the Guard’s technician status that is

completely subject to state authority. /d.

(emphasis added).

The Agency maintains that in the present case,

the DMNA is a state executive agency subject to

the laws of the State of New York. In March of

2003, the NY State Legislature amended NY Public

Health Law prohibiting smoking in any place of

employment. Specifically, section 1399-0 states,

“Smoking Restrictions: Smoking shall not be

permitted and no person shall smoke in the

following indoor areas: 1. places of employment; ...

”

75a

Section 1399-n defines “Places of employment”

as “any indoor area or portion thereof under the

control of an employer in which employees of the

employer perform services, and shall include, but

not be limited to, offices, school grounds, retail

stores, banquet facilities, theaters, food stores,

banks, financial institutions, factories, warehouses,

employee cafeterias, lounges, auditoriums,

gymnasiums, restrooms, elevators, hallways,

museums, libraries, bowling establishments,

employee medical facilities, rooms or areas

containing photocopying equipment or other office

equipment used in common, and company

vehicles.” (emphasis added) |

Section 1399-n also defines “Employer” as “any

person ... or entity which employs one or more

persons, including the legislative, executive and

judicial branches of state government and any

political subdivision of the state.” (Emphasis

added). Based upon the clear language of the

statute, the Governor of the State of New York

issued guidance to all state agencies, including the

DMNA, that, effective July 24, 2003, smoking was

prohibited in any indoor work area. The guidance

specifically stated, “no appointing authority or

designee shall have the discretion to authorize or

negotiate any variance in the law.” Thus, the

Agency contends, based upon this clear and

unequivocal guidance, the Adjutant General

followed the commands of the Commander-in-chief

and implemented the state law regarding smoking

in the work place. The Adjutant General had no

discretion to negotiate any variance to this

statutory requirement.

76a

As stated above, 5 U.S. C. § 7117 (a) (2) provides

that “the duty to bargain in good faith shall, to the

extent not inconsistent with Federal law or any

government-wide rule or regulation, extend to

matters which are the subject of any agency rules

or regulation referred to in paragraph (3) of this

subsection only if the authority has

determined under subsection (b) of this

section that no compelling need (as

determined under regulations prescribed by

the Authority) exists for the rule or

regulation.

In this case the authority has not determined

that no compelling need exists for the change in the

smoking policy. Applying the FLRA’s standards

under 5 C.F:R. § 2424.11, “A compelling need exists

for an agency rule or regulation concerning any

condition of employment when the agency

demonstrates that .. . the rule or regulation

implements a mandate to the agency .. . under

law oor other’ outside authority, which

implementation is essentially

nondiscretionary in nature.”

As stated above, the act of implementing state

law in this case was “essentially

nondiscretionary in nature” and was mandated

to the DMNA under law.

The Agency dismisses the Union’s protest that

“this issue is negotiable since many of the Agency’s

facilities are DoD facilities and do not fall under

the jurisdiction of ‘NY State Law.” Rather, the

Agency maintains, NY Public Health Law applies

to all facilities under DMNA control. The state law

T7a

does not differentiate between ownership of

property and the applicability of the law. Rather it

applies to employers and places of employment.

Clearly the DMNA is a covered employer under the

statute which defines employer as “any person...

or entity which employs one or more persons,

including the legislative, executive, and judicial

branches of state government and any political

subdivision of the state.” DMNA is part of the

executive branch of state government.

Similarly, a “Place of employment” is any indoor

area or portion thereof under the control of an

employer... .” All DMNA facilities are under the

control of TAG and DMNA. As stated in section

190 of the Executive Law, DMNA “shall include...

arsenals, depots, armories, bureaus, agencies,

bases, camps, ranges and other military (including

air) and naval facilities of the state and all military

(including air) and naval and civilian personnel

who may be serving or employed therein.”

As to the argument that ACT appears to be

proffering that NY Air National Guard bases are

“federal property” and are not “facilities of the

state,” the Agency counters that all federally owned

or leased property utilized by the NY National

Guard is utilized under a license from the federal

government to the State of New York for the

express purpose of administering the State

National Guard. Though the federal government

may own or lease: several facilities, they are all

licensed to the State of New York and under State

control as dictated in NY Executive law.

78a

The Agency concludes that the Smoking Policy

Letter is not subject to negotiation as it involves

the implementation of a mandate under law, which

implementation is essentially nondiscretionary in

nature. All facilities under DMNA control are

subject to state law and all NY National Guard

military and naval facilities, whether owned or

licensed to the State of New York, are under the

control of the DMNA. Accordingly, the Smoking

Policy Letter, which merely implements state law,

is not subject to negotiation.

OPINION OF THE ARBITRATOR

At the heart of this case is a dispute over the

interpretation and application of the language of

the Parties’ Collective Bargaining Agreement.

Complicating the matter is the somewhat complex

interrelationship among the Agency, the State and

Federal Department of Defense (DoD). This is well

illustrated by the initial paragraph of New York

State Military Law §182, Paragraph 1. As noted

above, that paragraph provides that all “facilities

owned, leased or maintained by the State or by the

United States for the use of the organized militia . .

. shall be under the general charge and control of. .

. the adjutant general [of New York State].” More

specifically, New York State Executive Law §190,

Paragraph 1, states, “the head of the division of

military and naval affairs shall be the adjutant

general who shall be appointed by the governor...

.” Also apparent from that provision is that the

adjutant general is directly responsible to, and

must comply with the directives of, the Governor of

the State of New York. Section 190 further

provides, “The governor may exercise and perform

19a

his functions powers and duties as commander-in-

chief of the militia of the state in whole or in part

through such division... .”

The Union has contended that the only

applicable law relevant to the Civilian Technicians

it represents is the Federal Law. Accordingly, it

argues, the DMNA must be governed in its

relationship with ACT by the language in Section 7

of EO 13058, in particular where it states,

“Provisions of existing collective bargaining

agreements shall be honored and agencies shall

consult with employee labor representatives about

the implementation of this order.” Thus, the Union

maintains, the Agency is obliged, under Article 6,

§7 of the Collective Bargaining Agreement to

“negotiate over the rules governing employees

smoking.”

It is the Union's position that since the

employees it represents are federal employees,

smoking restrictions applied to them must be in

compliance only with federal rules and regulations,

not with State promulgated rules. For example,

they point out that federal regulations allow indoor

smoking in “designated smoking areas that are

enclosed and exhausted directly to the outside and

away from air intake ducts and . . . maintained

under negative pressure (with respect to

surrounding spaces) sufficient to contain tobacco

smoke within the designated area.” (41 C.F.R.

§101-20.105-3(b).

As is clear from the evidence on this record, the

building facilities and property occupied by the

DMNA are under the control of the Agency and,

80a

therefore, are under the direction of the Adjutant

General of the State of New York. The Agency

provided numerous’ uncontested documents

supporting their argument that the Agency holds

licenses from the Federal government for ‘their

various facilities across New York State. Among

the provisions in the licenses is the clause recently

entitled “Supervision by the _ Installation

Commander” which appears in the form or

substance in each such license issued within the

last decade. That clause reads as follows:

The use and occupancy of the premises shall be

without cost to the regular establishment of the

military departments of the Department of

Defense and shall be under the _ general

supervision of the Installation Commander . .

and subject to such rules and regulations as

may be prescribed from time to time by said

officer.

Thus, the license conveys authority to make rules

and regulations from the DoD to the Installation

Commander.

Also, as noted above, the Installation

Commander is ultimately responsible to the

Adjutant General of the State of New York, who in

turn is directly responsible to the Governor, as

Commander-in-chief. As further indication of this

conveyance, each license provides that the licensee

must:

... comply with any [environmental protection]

laws, regulations, conditions or instructions

affecting the activity hereby authorized if and

when issued by the Environmental Protection

8la

Agency, or any Federsl, State, Interstate or

local governmental a _acy having jurisdiction to

abate or prevent pollution.

Thus, for example, if the town of Latham were to

pass a law mandating recycling of all used motor oil

at a Town designated facility, the Agency would be

obliged under the provisions of its licensing

agreement with the DoD to comply with the Town

law.

Further evidence of the intended accession to

regulations set by other than Federal entities

appears in the original Executive Order 13058. In

Section 2, paragraphs (c) and (d), the Order

specifically provides as follows:

(c) The order does not extend to those portions

of federally owned buildings leased, rented, or

otherwise provided in their entirety to

nonfedera! parties.

(d) The order does not extend to places of

employment in the private sector or in other

nonfederal governmental units that serve as the

permanent or intermittent duty station of one or

more Federal employees.

Thus, for example, if an attorney from the Judge

Advocate General's staff were temporarily assigned

to a private law firm or municipal department of

law, he or she would be obliged to comply with local

regulations regarding restriction of smoking, even

if they were, as here, more stringent than those the

JAG attorney was subject to within a federal

facility.

82a

The Union also seeks support in the language of

the Collective Bargaining Agreement, specifically

at Article 6, Section 4, and Article 7, Section 3 (both

reproduced in full above). It asserts that Section 4

of Article 6 requires the Agency to negotiate the

smoking policy during normal contract negotiations

and obligates the Agency to negotiate any

subsequent changes to that policy. However, there

is an implicit proviso within Section 4 that limits

the Parties’ latitude to negotiate employee-smoking

rules. The final phrase of Section 4 provides that

the Parties’ may negotiate such rules “within the

purview of The Adjutant General’s DMNA smoking

policy _ letter.” The Adjutant General's

Memorandum confirms the change in smoking

policy with DMNA facilities. Echoing the June 4,

2003 memorandum from the OER Deputy Director,

Maj. Gen. Maguire’s memorandum states:

3. The amendment to the New York State Public

Health Law, effective 24 July 2003, prohibits all

smoking in National Guard Facilities occupied

by the New York Army and Air National Guard

and civilian employees. Designated smoking

areas must be located outdoors and not in the

immediate proximity of entrances. This policy

will provide consistency throughout the state.

The Adjutant General’s memorandum perforce

acknowledges removal of discretion over smoking

policy from the purview of the DMNA, in that it

specifically refers to mandatory DMNA compliance

with the New York State Public Health Law that

became effective 24 July 2003. That directive as

well removes the matter from the language of

Sections 2 and 3 of Article 7. In both those

83a

provisions, the limitation on consultation is that

the matter be “within the purview of the DMNA.”

Thus, the Agency is not bound, nor does it have

authority to, negotiate with the Union over the

revised DMNA smoking policy promulgated to

bring it in compliance with the New York State

Adjutant General’s directive.

In light of the foregoing I find that the Agency

did not violate the Collective Bargaining

Agreement when it issued a new smoking policy

letter on 23 July 2003. Thus the grievance must be

denied.

AWARD

The Agency did not violate the Collective

Bargaining Agreement when it issued a new

smoking policy letter on 23 July 2003.

/s/

Elizabeth C. Wesman, Ph.D.

Signed: 19 July 2004

84a

APPENDIX E

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA

CIRCUIT

No. 06-1354 September Term, 2007

Filed On: Jan 18 2008

Association of Civilian Technicians, New York

State Council,

Petitioner

Ve

Federal Labor Relations Authority,

Respondent

BEFORE: Sentelle, Tatel,* and Griffith, Circuit

Judges

ORDER

Upon consideration of petitioner’s petition

for rehearing filed December 10, 2007, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

«Circuit Judge Tatel would grant the petition for

rehearing.

| a eee ee

85a

APPENDIX F

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA

CIRCUIT

No. 06-1354 September Term, 2007

Filed On: Jan 18 2008

Association of Civilaan Technicians, New York

State Council,

Petitioner

Vv.

Federal Labor Relations Authority,

Respondent

BEFORE: Ginsburg, Chief Judge, and Sentelle,

Henderson, Randolph, Rogers, Tatel,

Garland, Brown, Griffith, and

Kavanaugh, Circuit Judges

ORDER

Upon consideration of petitioner's petition

for rehearing en banc, and the absence of a request

by any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

86a

Mark J. Langer, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk