Analysis and Conclusions. The formation of the SSO Market was a transformational event. It necessitated the organizational transfer of employees from 82 different bargaining units. Since then, the SSO Market and its CHRA team have had to grapple with the aftermath, all the separate units at 62 MTFs scattered across the country. Clearly the present situation cannot be maintained indefinitely. Section 7112 of the Statute provides that employees must be in “an” appropriate unit rather than the most appropriate one.4 The SSO Market is an organization with over 7,000 bargaining unit eligible employees, and all are now controlled by the SSO Market Director, General Cox. The range of units that the parties propose for the SSO Market starts with as few as two units, then three units, six units, up to as many as 58 separate units. The NAIL proposal in particular, the one that would result in 58 units, only incrementally improves the existing situation. A reduction from 82 to 58 units for 62 MTFs, would amount to a slight improvement, but remains an unwieldy number for the sole CHRA team responsible for servicing the entire SSO Market and all these MTFs.
Analysis and Conclusions. 1. The 8(b)(4)(i) and (ii)(B) allegations Section 8(b)(4)(B) reflects “the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Building & Trades Council, 341 U.S. 675, 692 (1951). Here, the parties sharply disagree about the identity of the primary employer (or “offending”) employer and the others that can be characterized as “unoffending” employer that we characterize these days as neutrals. The AGC contends that the Port is the primary employer based on the right of control test the Board applies to distin- guish primary employers from neutral employers in cases of this type. Accordingly, the AGC argues that the various forms of pressure the Respondents asserted against others violated the secondary boycott proscriptions in Section 8(b)(4)(B). Re- spondents argue that Section 8(b)(4)(B) protects economic action against parties who are not really “neutral” or who are not “wholly uncon-cerned” in a labor dispute such as the one here. Respondents assert that neither ICTSI nor the carriers can be characterized as neutral or wholly unconcerned here because they are bound by the coastwise PCLCD that obligates them to honor the section 1 jurisdictional mandates of that contract document as interpreted in CLRC-012-2012 and CLRC-013- 2012 and/or authorized arbitrators. As I find that CLRC-012- 2012 and CLRC-013-2012 suffer from a fundamental flaw, I disagree with Respondents’ contentions. In Plumbers Local 438 (Xxxxxx Xxxx Sons, Inc.), 201 NLRB 59, 63 (1973), enfd. 490 F.2d 323 (4th Cir. 1973), the Board reiterated its analytical approach to cases of this kind:
Analysis and Conclusions. A. The award is not contrary to law. The Union argues that the award is contrary to § 7106 and § 7116(a)(1) and (5) of the Statute because the Agency failed to bargain with the Union prior to implementing the Air Boss position, the impact of which was greater than de minimis. Exceptions at 6-7 (citing CBP, 64 FLRA at 994; Army, 38 FLRA at 661). (citing U.S. Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator‘s legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator‘s underlying factual findings. See id. Arbitrators are required to apply statutory burdens of proof when resolving an alleged unfair labor practice (ULP). See, e.g., U.S. GSA, Ne. & Caribbean Region, N.Y.C., N.Y., 60 FLRA 864, 866 (2005). However, when a dispute involves a bargaining obligation as defined by the parties‘ agreement, ―‗the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the [a]rbitrator.‘‖ U.S. Dep’t of Homeland Sec., U.S. Immigration & Customs Enforcement, 65 FLRA 792, 795 (2011) (ICE) (quoting Broad. Bd. of Governors, Office of Cuba Broad., 64 FLRA 888, 891 (2010) (Cuba) (citation omitted)). In those circumstances, the Authority applies the deferential essence standard to the arbitrator‘s contract interpretation. Id. (citation omitted). The dispute before the Arbitrator did not involve a claim that the Agency failed to satisfy its statutory duty to bargain. Rather, the parties stipulated to issues concerning only the Agency‘s contractual duty to bargain: (1) ―Did the Agency violate Article[s 2 and 6 of the CBA], and the . . . MOU?‖; and (2) ―Did the Agency implement a change in Agency policies and practice when [it] assigned the position of ‗Air Boss‘ to the [air-traffic-control room] . . . ?‖ Id. at 2. In addition, the Arbitrator‘s summary of the parties‘ positions includes no arguments relating to the Agency‘s statutory duty to bargain. See Award at 5 (describing Union‘s position that the Agency ―is obligated to negotiate the establishment of the Air Boss position, based on a logical application and interpretation of [Articles 2 and 6] and the [MOU]‖); id. at 6 (describing Agency‘s position that it did not violate Articles 2 and 6 of the CBA or the MOU). Further, the Arbitrator did not ad...
Analysis and Conclusions. For the reasons set forth below, we find that the Authority lacks jurisdiction to review the Agency’s exceptions. Under § 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to awards “relating to” a matter described in § 7121(f) of the
Analysis and Conclusions. A. The fee award is not contrary to law.13 The Agency argues that the fee award is contrary to law because the Arbitrator “erred” when he determined that the damages award was final, and so, he could award attorney fees.14 In particular, the Agency challenges as improperly awarded the “interim fees.”15 The Agency contends that the Authority revised its criteria for the finality of awards in the 2018 decision U.S. Department of the Treasury, IRS (IRS), and so, rendered the damages award susceptible to exceptions and Authority review; therefore, any attorney fees petition was premature.16 But, IRS did no such thing. In that decision, the Authority clarified what circumstances may be found to be “extraordinary circumstances” allowing review of interlocutory exceptions.17 Indeed, the Authority reaffirmed the criteria for finality. The Agency’s misinterpretation of IRS provides no support for its argument. Therefore, the damages award is final, 11 Xxxx AFB II, 70 FLRA at 421-22. 12 The Agency cites to our recent interlocutory-appeals decision, U.S. Department of the Treasury, IRS, 70 FLRA 806, 808 (2018) (IRS) (Member XxXxxxxx dissenting) , as support for the submission of exceptions here to the damages award. Exceptions at 26. As we discuss later in this decision, the Agency’s misinterpretation of IRS provides no support for its argument. 13 When an exception involves an award’s consistency with law, the Authority reviews any question of law raised by the exception de novo. U.S. Dep’t of the Navy, Puget Sound Naval Shipyard & Intermediate Maintenance Facility, Bremerton, Wash., 71 FLRA 240, 241 n.10 (2019) (Puget Sound) (Member XxXxxxxx concurring). In reviewing de novo, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law. Id. In making that assessment, the Authority defers to the arbitrator’s underlying factual findings unless the excepting party establishes that they are nonfacts. Id.
Analysis and Conclusions. I should start by making three statements. One, this is not a running down case and de La Bastide XX’s dicta in XXXXXXXXXXX is not helpful to LOS. Two, I have searched the CPR, which guides my court procedure and proceedings and I have searched the substantive law and can find no reference to joint trials or hearing cases jointly. Three, it is clear that consolidation of matters can have no
Analysis and Conclusions. WRM Policies
Analysis and Conclusions. A. The award does not fail to draw its essence from the discipline agreement. The Agency argues that the award fails to draw its essence from the discipline agreement.21 The Authority will find an award fails to draw its essence from an agreement when the excepting party establishes the award:
(1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement.22 The Agency asserts that the xxxxx xxxxx a manifest disregard for the discipline agreement because that agreement “required the two[-]calendar[-]day paper suspension to . . . be used for progressive discipline” if the grievant engaged in any further misconduct, but the Arbitrator treated the 2021 misconduct as a first offense.23 Section 2.c. of the discipline agreement states that the “‘paper suspension’ will be equivalent to a two (2) calendar day suspension from duty and pay for use in progressive discipline, should further misconduct occur.”24 However, this wording does not specify that any misconduct must be treated as related, and therefore constitute a second offense, for purposes of applying progressive discipline. The Agency’s assertion merely disagrees with the Arbitrator’s interpretation of the 19 Id.
Analysis and Conclusions. 120 It is often said that actions speak louder than words. The actions taken by the United States against Xxxxx Xxxxxxx in this country speak loudly of a deliberate plan to engineer the return of Xx. Xxxxxxx to the United States to face tax fraud charges without having to go through the nuisance of an extradition proceeding. The fall-back plan was that if extradition had to be resorted to at all, it would be pursued in this country where Xx. Xxxxxxx had no ties to the community, away from his wife, his children, his friends and his work; a place where he was more likely to be held in custody or to have his freedom severely curtailed, and therefore more likely to waive his rights and simply 121 As I have already indicated, I do not propose to analyze each of the four allegations of abuse separately, as if they were water-tight compartments. A determination as to whether any one of these situations would be sufficient, standing alone, to warrant a stay for abuse of process should be left for a case in which the issue arises in isolation. Here, the four allegations do not arise in isolation, but are part of a chain of events that must be seen cumulatively in order to be properly understood.
