Union’s Opposition. The Union asserts that the award merely requires the Agency “to go to the bargaining table” and that, because the award does not mandate any particular outcome for the parties’ negotiations, the Authority’s consideration of the exceptions would constitute an impermissible advisory opinion on the legality of “[w]hat might eventually happen at the bargaining table[.]” Opp’n at 9-10 (citing 5 C.F.R. § 2429.10).4 The Union also asserts that the Arbitrator directed the Agency to bargain to fulfill a contractual obligation, not a statutory one; thus, according to the Union, the Agency “cannot legitimately claim that the award [concerning contractual bargaining obligations] violates management rights.” Id. at 1, 6 (citing U.S. Dep’t of Def., Nat’l Guard Bureau Adjutant Gen., Kan. Nat’l Guard, 57 FLRA 934 (2002); Soc. Sec. Admin., Balt., Md., 55 FLRA 1063 (1999); AFGE, Local 3937, 49 FLRA 785 (1994)). Finally, the Union contends that the Agency’s arguments regarding sovereign immunity should be dismissed because, although the Agency was on notice that the Union was requesting remedies including commuting expenses, the Agency did not argue before the Arbitrator that sovereign immunity prevented her from awarding reimbursement for such expenses. See id. at 2, 10 (citing 5 C.F.R. § 2429.5).
Union’s Opposition. The Union contends that the Arbitrator’s substan- tive arbitrability determination is not contrary to
Union’s Opposition. As to the Arbitrator’s arbitrability determination, the Union contends that it is a determination of proce- dural arbitrability that is not subject to challenge. Opp’n at 5. As to the Arbitrator’s resolution of the merits, the Union contends that the Arbitrator’s direction to rein- state the disputed duties was encompassed within her discretion to fashion a remedy and make the grievant whole for any harm that resulted from the unwarranted suspension. Id. at 16. In addition, the Union contends that the award is not contrary to management’s rights. Id. at 18-19.
Union’s Opposition. The Union argues that the Authority does not have jurisdiction to review the award. In the Union’s view, the Arbitrator did not make “two distinct rulings.” Opp’n at 4 (quoting Exceptions at 1). To the contrary, the Union argues, the Arbitrator identified the DUI policy as playing a central role in the Agency’s decision to remove the grievant. Opp’n at 4. The Union also contends that the Agency erroneously claims that the MSPB would not review the Arbitrator’s determination concerning the DUI policy. According to the Union, the MSPB has jurisdiction to resolve discrimination claims raised as affirmative defenses in cases involving removals. Id.
