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. A. The award is not contrary to § 7121(c)(5) of the Statute The Agency contends that the Arbitrator’s substan- tive arbitrability determination -- that the award does not concern a classification matter -- is contrary to § 7121(c)(5). The Authority reviews questions of law raised by exceptions to an arbitrator’s award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority determines whether the award is consistent with the applicable xxxx- dard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making this determination, the Author- ity defers to an arbitrator’s underlying factual findings. See id. Specifically, where an arbitrator’s substantive arbitrability determination is based on law, the Author- ity reviews that xxxxxxxxxxxxx xx xxxx. Xxx XXXX, 00 FLRA 729, 732 (2006), and the cases cited therein. Under § 7121(c)(5) of the Statute, a grievance con- cerning “the classification of any position which does not result in the reduction of grade or pay of an employee” is excluded from the scope of the negotiated grievance procedure. The Authority has construed the term “classification” in § 7121(c)(5) as involving “the analysis and identification of a position and placing it in a class under the position classification plan established by [the Office of Personnel Management] under chapter 51 of title 5, United States Code.” United States Dep’t of Transp., Fed. Aviation Admin., Xxxxxxx, Xx., 00 XXXX 000, 521 (2008) ( FAA, Atlanta) (quoting Soc. Sec. Admin., Office of Hearings & Appeals, Mobile, Ala., 55 FLRA 778, 779 (1999)). The Authority has distinguished two situations to determine whether a grievance concerns the classifi- cation of a position. Where the substance of a grievance concerns the grade level of the duties permanently assigned to, and performed by, the grievant, the Author- ity finds that the grievance concerns classification within the meaning of § 7121(c)(5). See id. at 521. However, where the substance of the grievance con- cerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by
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. 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:
Analysis and Conclusions. (a) Clinical diagnosis per the current DSM;
Analysis and Conclusions. WRM Policies In Australia, since there are governments in different states and territories apart from the Australian Government, an inter-agreement has been prepared and signed among them to have a common consensus in how to manage their water resources. The agreement signifies the elements like, water reform, water pricing, water trading and so on. Compared to Australia, Hong Kong’s two main sources of water are from rainfall from natural catchment and supply from Guangdong. It is Water Supplies Department’s (WSD) scope of work to cover the whole process from the collection of natural yield from rainfall, the reception of raw water from Guangdong to the provision of a supply with a quality of accepted international standards to the users’ taps. WSD also supplies sea water for flushing purposes to over 80% of the population. For protection against flooding, sewage collection, treatment and disposal, it is under Drainage Services Department’s (DSD) jurisdiction. For the sustainable development of Hong Kong, WSD has initiated a Total Water Management programme comprising key elements of new water resources, water reclamation, water conservation and water resources protection and management was initiated for better utilization of the different water resources.
Analysis and Conclusions. A. The Arbitrator’s arbitrability determination is not deficient. As recognized by the Authority, procedural arbi- trability involves questions of whether the procedural conditions to arbitrability have been met or excused, while substantive arbitrability involves questions of whether the subject matter of a dispute is arbitrable. See, e.g., AFGE Nat’l Border Patrol Council, Local 1929, 63 FLRA 465, 467 (2009). Here, the Arbitrator found, and the Agency does not dispute, that both the 2003 and 2006 agreements cover the subject matter that was grieved and set forth the same substantive standards with respect to the imposition of discipline. Conse- quently, the exceptions do not challenge a substantive arbitrability determination. Instead, the exceptions challenge the Arbitrator’s arbitrability determination rejecting the Agency’s claim that the reference to the 2003 agreement rendered the grievance procedurally defective. This is a procedural arbitrability determina- tion because it finds that the grievance met the proce- dural conditions to resolution on the merits. See id. As a procedural arbitrability determination, the Arbitrator’s determination is generally not subject to challenge. E.g., AFGE Local 104, 61 FLRA 681, 682 (2006); see also Xxxx Xxxxx & Sons, Inc. x. Xxxxxxxxxx, 000 X.X. 000, 557 (1964) (“Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.”). One of the grounds on which a procedural arbitrability determination is subject to challenge is exceeded authority, but only insofar as the exceeded-authority claim “do[es] not directly chal- lenge the [arbitrability] determination itself.” AFGE Local 104, 61 FLRA at 683. Here, the parties specifi- cally authorized the Arbitrator to determine whether the grievance was arbitrable, and the Agency makes no exceeded-authority arguments that do not directly chal- lenge the Arbitrator’s arbitrability determination itself. Consequently, the Agency provides no basis for finding the determination deficient. See id. Accordingly, we deny the Agency’s exception.
Analysis and Conclusions. A. The award does not violate management’s rights under the Statute. The Agency claims that the award is contrary to law because the Arbitrator directed it to bargain substantively over work assignments and the technology of performing work. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S.
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:
