[00:00:00] Speaker 03:
OK, our final case this morning is number 191531, Buffkin versus Defense.

[00:00:06] Speaker 03:
Mr. Herr.

[00:00:09] Speaker 05:
Good morning.

[00:00:09] Speaker 05:
May it please the court?

[00:00:10] Speaker 05:
The starting point for our argument today is that Arbitrator Harris misinterpreted Article 26, Section 6 of the contract that refers to the term last day of mediation.

[00:00:24] Speaker 05:
And that his finding that the December 13, 2012 was the last day of mediation

[00:00:30] Speaker 05:
was not supported by substantial evidence.

[00:00:33] Speaker 05:
There was nothing in the collective bargaining agreement that precludes agreements from being mediated at more than one mediation session.

[00:00:43] Speaker 06:
And in fact, the two- So I have a question related to that from a factual standpoint.

[00:00:49] Speaker 06:
Were the parties, did they agree at the end of the first mediation, which I think was in December of 2012, that there would be subsequent mediations?

[00:01:00] Speaker 05:
I do not know that the record reflects the answer to that question.

[00:01:04] Speaker 06:
The reason I ask is because if the rules require an arbitration to be filed within a certain number of days of the conclusion of the grievance procedure, which in this case was the mediation, isn't it important that we know when the mediation was believed to be ended by the parties?

[00:01:23] Speaker 05:
That is a very good question that I do not believe that the record answers the question because the government listed the case is still pending.

[00:01:35] Speaker 03:
Right.

[00:01:35] Speaker 03:
I mean, I think the answer.

[00:01:37] Speaker 02:
Wait, where did the government list the case as still pending?

[00:01:40] Speaker 05:
Oh, in the joint appendix, we have reproduced the agenda for the 2015 mediation.

[00:01:47] Speaker 02:
No, no, this is it.

[00:01:49] Speaker 02:
This whole process and the way you all do this is baffling to me, because it seems like, well, first of all, it seems like the agency issues its decision on a grievance denying it and doesn't even wait for the employee to invoke arbitration and just shunts it off the mediation immediately.

[00:02:06] Speaker 04:
Yes.

[00:02:07] Speaker 02:
I don't understand why that happens at all.

[00:02:09] Speaker 02:
I mean, if the agency thinks its decision is right, why would it bother to invoke mediation?

[00:02:15] Speaker 02:
But this process of mediation seems to be you have this big list.

[00:02:19] Speaker 02:
You all get together.

[00:02:20] Speaker 02:
You go through some of them.

[00:02:21] Speaker 02:
And all you issue is a list saying, here's the ones we've resolved.

[00:02:27] Speaker 02:
But it is silent as to what happens with the rest of them, isn't it?

[00:02:33] Speaker 05:
I think the record is silent with regard to the rest of them, except that the fact that it was the agency who prepared the agenda for the two.

[00:02:44] Speaker 02:
Yeah, yeah, no.

[00:02:45] Speaker 02:
There are different things.

[00:02:47] Speaker 02:
This case is, I think, procedurally a mess and complicated, partly by the way you all do this stuff.

[00:02:52] Speaker 02:
But just looking at the 2012 point, at the end of the expiration of the 2012 session, there are a list of ones that are resolved.

[00:03:01] Speaker 04:
Yes.

[00:03:01] Speaker 02:
and then it doesn't say anything about the remaining ones, whether they're held over or whether they're finished as to mediation, right?

[00:03:11] Speaker 05:
I am guessing that there was nothing that... Where is this list that we've been talking about so we can look at it?

[00:03:18] Speaker 05:
The Joint Appendix 309 has

[00:03:31] Speaker 05:
the list prepared by management of the grievances that they believe were open, that they prepared this list on March 17, 2015.

[00:03:41] Speaker 05:
This is the 2015 thing.

[00:03:47] Speaker 02:
Is there anything about the 2012 that would indicate after that?

[00:03:52] Speaker 05:
I don't think there's anything in that record.

[00:03:55] Speaker 02:
So how do we know that a mediation is rejected?

[00:04:01] Speaker 02:
We know which ones are granted because it has the list after the mediation session of the union and the agency have agreed to resolve these.

[00:04:09] Speaker 02:
How do we know there's a final decision rejecting the mediation efforts, which would then trigger the 20 day requirement?

[00:04:20] Speaker 05:
I know of nothing in writing that memorialized that.

[00:04:25] Speaker 05:
Would it be good practice?

[00:04:26] Speaker 05:
Yes, it would be good practice to memorialize.

[00:04:28] Speaker 02:
Well, it would be really, really good practice considering that we have no idea.

[00:04:33] Speaker 02:
Because of the language of the bargaining agreement seems to suggest that if that stage doesn't result in any action, then the 20-day period kicks in to file something.

[00:04:46] Speaker 02:
And it seems like, given the way this is operating, that

[00:04:50] Speaker 02:
the failure to resolve something here in 2012 should have triggered that 20-day stage.

[00:04:56] Speaker 02:
And so you were untimely.

[00:04:59] Speaker 02:
And now we're arguing, though, because the agency has chosen to carry it over for whatever reason they've chosen, it suddenly may become timely again.

[00:05:09] Speaker 02:
Again, I don't want to be too critical, because I know this is a labor process.

[00:05:15] Speaker 02:
It is not a court or administrative

[00:05:20] Speaker 02:
body court-type process, so there are definitely more informalities.

[00:05:25] Speaker 02:
But I can't conceive of any system where something would be final and then suddenly become not final again.

[00:05:33] Speaker 05:
I can only suggest that the fact that management considered it to be an open issue in their mind, that it was still a case to be discussed again.

[00:05:43] Speaker 03:
The question is, how do we know that they consider it to be an open issue?

[00:05:47] Speaker 03:
I think you're relying

[00:05:49] Speaker 03:
on this Table that appears at 309 where Help us to understand how this table works.

[00:05:57] Speaker 03:
This is this is prepared by management It's open grievances is the list right?

[00:06:02] Speaker 03:
Yes, and where is the where is the particular arbitration?

[00:06:06] Speaker 05:
We're talking about it is Number 70 on page 3 1 3 and just to note your honor and

[00:06:19] Speaker 05:
Reflected in the brief somewhere.

[00:06:20] Speaker 05:
There's a record reference to the transcript where management testified that they indeed prepared this chart Okay, so There it says as of 2015.

[00:06:31] Speaker 03:
It's been denied What what does the record show about the status of this grievance in?

[00:06:39] Speaker 03:
2012 after the first session there is The record is silent on that There's nothing that's prepared

[00:06:49] Speaker 02:
after the 2012 mediation that lists in any way the status of unresolved grievances?

[00:06:57] Speaker 05:
I don't believe there is.

[00:06:59] Speaker 05:
There's nothing in the record to that effect.

[00:07:03] Speaker 02:
Despite the... So let me ask you hypothetically if this 2015 mediation had never occurred and you'd still filed

[00:07:16] Speaker 02:
for your arbitration, ask the agency to designate officers and things like this in the same time period you did here, you'd be out of time, wouldn't you?

[00:07:26] Speaker 02:
Because it would be more than well after the 20 days of the 20th.

[00:07:29] Speaker 05:
It would be past the deadline, but then there are the other two.

[00:07:32] Speaker 02:
I know you have other arguments.

[00:07:33] Speaker 02:
Right.

[00:07:34] Speaker 05:
And what is the penalty for that?

[00:07:36] Speaker 02:
Right, right.

[00:07:36] Speaker 02:
And based upon a strict reading, you'd be out because it would be final and you hadn't gone in time.

[00:07:45] Speaker 02:
The arbitrator's decision in that sense is correct.

[00:07:48] Speaker 02:
So what we're looking at is whether somehow this relisting implicitly meant it wasn't final or somehow implicitly revived it.

[00:07:58] Speaker 05:
I think it explicitly says it wasn't final.

[00:08:01] Speaker 05:
It's listed as an open grievance.

[00:08:03] Speaker 06:
But it also says denied.

[00:08:05] Speaker 05:
Well, that's the initial grievance itself was denied.

[00:08:08] Speaker 05:
They would be denied to land up on this list.

[00:08:13] Speaker 06:
Well, OK, but one other problem I have is the CBA expressly says that you can file for arbitration 20 days following the conclusion of the last stage in the grievance procedure.

[00:08:26] Speaker 06:
If you're telling us the grievance procedure didn't conclude after the mediation in December 2012,

[00:08:34] Speaker 06:
How did you comply with that?

[00:08:36] Speaker 06:
Because you claim the reason it didn't conclude is because it kept going all the way through 2015.

[00:08:42] Speaker 06:
And you know that because there was this second mediation discussion that occurred in March of 2015.

[00:08:47] Speaker 06:
But that's not one you filed for arbitration.

[00:08:49] Speaker 06:
You filed for arbitration when?

[00:08:51] Speaker 06:
Remind me of the date.

[00:08:52] Speaker 05:
The former sentence in 2014.

[00:08:56] Speaker 06:
Right.

[00:08:57] Speaker 06:
So the CBA doesn't say you can file for arbitration before a grievance procedure is concluded, does it?

[00:09:06] Speaker 05:
The part, it doesn't say you can't.

[00:09:08] Speaker 06:
Yes, it does, because it expressly says when you can file, which is 20 days following the conclusion of the last stage of the grievance procedure.

[00:09:18] Speaker 06:
So I think you're out of luck, because you're either too late or too early.

[00:09:21] Speaker 06:
And I don't know what to do with that.

[00:09:22] Speaker 05:
OK.

[00:09:23] Speaker 05:
The arbitrator did not rule that it was too early.

[00:09:27] Speaker 05:
And I would point out that.

[00:09:28] Speaker 05:
And the government didn't argue that it was too early, right?

[00:09:32] Speaker 05:
I can't say that they didn't put that in their post-hering brief in arbitration.

[00:09:38] Speaker 05:
I did not see that argued in the record.

[00:09:40] Speaker 02:
The arbitrator's decision is based solely on the notion that it was untimely as to the first mediation, which was closed.

[00:09:49] Speaker 02:
Yes.

[00:09:49] Speaker 02:
And therefore, you're out on that.

[00:09:52] Speaker 02:
And he said this second one can't revive it.

[00:09:56] Speaker 02:
If we disagree with him on that, that perhaps the agency's discretionary decision to revive the mediation somehow reopens the time period, he hasn't ruled on whether a premature arbitration request in advance of that mediation is untimely or not.

[00:10:17] Speaker 02:
Although it does seem like

[00:10:19] Speaker 02:
he's going to be bound by whatever that FLRA decision is to reject the lawsuit.

[00:10:25] Speaker 05:
Well, can I answer two questions that I didn't feel I fully answered Judge Moore's question?

[00:10:35] Speaker 05:
Sending the form early was a routine practice of the parties.

[00:10:39] Speaker 05:
At least there were 13 of the 61 grievances that were settled in 2015, 13 of them

[00:10:49] Speaker 05:
the parties had submitted the FMCS form early.

[00:10:54] Speaker 05:
And that's a mutual.

[00:10:55] Speaker 05:
That is a mutual act.

[00:10:57] Speaker 05:
The form gets signed by the union, sent to management, management signs it, send it to the FMCS.

[00:11:02] Speaker 02:
Is that what this table notes throughout that in this last column, there are

[00:11:07] Speaker 02:
many, many sections where it says pending selection or things like that.

[00:11:12] Speaker 02:
Is that what you're talking about?

[00:11:14] Speaker 05:
Yes.

[00:11:14] Speaker 05:
You've sent that request.

[00:11:15] Speaker 05:
Yes.

[00:11:16] Speaker 05:
I would also note that there were three other arbitration cases, arbitrated about the same time, where the form was submitted in 2014, and the matter was mediated again in 2015, and there was no objection to the timeliness.

[00:11:34] Speaker 05:
That was the Bullington case.

[00:11:36] Speaker 05:
the Carmona case and the Bender case.

[00:11:41] Speaker 05:
And they're reproduced in the joint appendix.

[00:11:51] Speaker 04:
You can go.

[00:11:51] Speaker 04:
I don't have any other questions.

[00:11:54] Speaker 06:
Or you can save time for rebuttal if you want.

[00:11:56] Speaker 04:
Yeah, OK.

[00:11:57] Speaker 04:
My time's up.

[00:11:58] Speaker 04:
I'm sorry.

[00:11:58] Speaker 04:
Thank you.

[00:12:04] Speaker 00:
May it please the court.

[00:12:05] Speaker 03:
Ms.

[00:12:06] Speaker 03:
Aker, wait.

[00:12:07] Speaker 03:
Ms.

[00:12:07] Speaker 03:
Aker, go ahead.

[00:12:10] Speaker 00:
Thank you, Your Honor.

[00:12:11] Speaker 00:
May it please the court.

[00:12:12] Speaker 00:
I'll first address Ms.

[00:12:14] Speaker 00:
Buffkin's argument regarding the 2012 arbitration.

[00:12:18] Speaker 00:
So under the plain language of the master labor agreement, as Judge Moore noted earlier, the party has 20 days following the resolution of the mediation.

[00:12:28] Speaker 03:
Well, not necessarily.

[00:12:29] Speaker 03:
I mean, you can read that as a deadline that you have to submit it no later than that.

[00:12:34] Speaker 03:
that you can't submit it earlier.

[00:12:36] Speaker 03:
And for example, the same problem arose under Federal Rule of Appellate Procedure Rule 4.

[00:12:42] Speaker 03:
And even before it was amended to make this clear, most of the circuits had held that premature notice was sufficient, even though the language was even clearer there than it is here.

[00:12:56] Speaker 00:
So I'll point to a few points in the Master Labor Agreement that shows that this is a sequential process, that it goes mediation and then arbitration.

[00:13:04] Speaker 00:
Article 26, which refers to the mediation, says... What's the prejudice from having a premature notice?

[00:13:10] Speaker 00:
Well, Your Honor, we get into this weird procedural situation that was noted earlier, where we have a mediation that one party, the agency, might think is finished, and then we have a... But you clearly didn't think it was finished because you relisted it for 2015.

[00:13:24] Speaker 00:
Well, Your Honor, and I'll point the court to Appendix 21, which is the testimony regarding this list.

[00:13:30] Speaker 00:
This list was not an agenda, and it was not prepared by management.

[00:13:33] Speaker 00:
It was prepared by a paralegal as an organizational tool of all of the grievances in this section.

[00:13:37] Speaker 00:
So it wasn't an agenda that these are all of the things we're going to substantively discuss.

[00:13:42] Speaker 02:
But unless I'm missing something, you can't point to anything post-2012 that addressed whether this mediation was rejected and finally resolved.

[00:13:53] Speaker 00:
I'll point to a few things, Your Honor.

[00:13:55] Speaker 00:
First, the memorandum of agreement is the document that's culminated after every mediation that shows all of the grievances that are resolved.

[00:14:04] Speaker 02:
Does that memorandum say anywhere that grievances not listed are considered final?

[00:14:12] Speaker 00:
No, your honor, that's more of an implicit thing, but I'll point to something else.

[00:14:15] Speaker 02:
Well, that's not going to get you very far.

[00:14:17] Speaker 02:
The practices between you and the union on this are baffling and really lead to bizarre results.

[00:14:25] Speaker 02:
I mean, how is this person supposed to know

[00:14:29] Speaker 02:
whether her mediation was finished in 2012 and triggered the time for her to file the arbitration request.

[00:14:40] Speaker 02:
I know she's relying on the union, and maybe they should do a better job.

[00:14:43] Speaker 02:
But shouldn't she personally be aware of these timelines?

[00:14:47] Speaker 00:
Well, Your Honor, either her or, on this instance, her representative, the university, was there on her behalf, so certainly would know whether they reached a resolution or not.

[00:14:56] Speaker 00:
So we have testimony, which is on Appendix 21, that says- But when you don't reach a resolution, can't you have another mediation after that?

[00:15:02] Speaker 00:
Sure, Your Honor.

[00:15:03] Speaker 00:
And there is actually a procedure under the master labor agreement that says parties can mutually agree to extend any timeline.

[00:15:09] Speaker 00:
So there could be a mutual agreement that says, we're not quite there, but we didn't have time at this mediation.

[00:15:14] Speaker 02:
So let's extend any deadlines and mediate it again.

[00:15:22] Speaker 02:
Would that have made the arbitration request timely?

[00:15:25] Speaker 02:
I mean, putting aside the premature thing, because I think that's another question.

[00:15:28] Speaker 02:
If she had filed after the 2015 mediation, would that have been timely?

[00:15:32] Speaker 00:
I think so, Your Honor, because there was testimony at the arbitration that her mediation was discussed again in 2015.

[00:15:38] Speaker 00:
And so if it was discussed, it was mediated.

[00:15:42] Speaker 00:
Then she has 20 days following the final decision of that mediation, which would have been the memorandum of agreement.

[00:15:49] Speaker 02:
But the arbitrator didn't address that argument.

[00:15:51] Speaker 00:
It wasn't raised below, Your Honor.

[00:15:53] Speaker 03:
This sounds to me as they just admitted that the arbitrator was wrong in saying that the second mediation didn't trigger a 20-day period.

[00:16:02] Speaker 00:
Well, Your Honor, the arbitrator below said that there was no right to another mediation.

[00:16:08] Speaker 03:
Correct.

[00:16:09] Speaker 03:
But I thought you just admitted to Judge Hughes that if they'd filed within 20 days after the second mediation, it would have been timely.

[00:16:16] Speaker 03:
Did I misunderstand?

[00:16:17] Speaker 00:
Well, I think, Your Honor, I was going from Judge Moore's question first that was talked, I was explaining that they could mutually agree that an arbitration, or excuse me, mediation is ongoing.

[00:16:27] Speaker 03:
Suppose we had the first mediation, and they had a second mediation, and she filed within 20 days after the second mediation.

[00:16:34] Speaker 03:
Would that have been timely?

[00:16:35] Speaker 00:
If the first mediation was not resolved, because if it's unresolved, then the timeline starts.

[00:16:41] Speaker 00:
And there was testimony here

[00:16:43] Speaker 00:
that the 2012 was unresolved.

[00:16:46] Speaker 00:
And so if it's unresolved under Article 26, that triggers the timeline.

[00:16:51] Speaker 00:
If there was some sort of agreement between the parties.

[00:16:54] Speaker 02:
How do we know something is unresolved or carried over?

[00:16:58] Speaker 00:
Well, certainly, Your Honor, both parties are at the mediation, so they know whether we reached an agreement or we didn't.

[00:17:04] Speaker 02:
Sure, but that tells you whether you reached an agreement or not.

[00:17:08] Speaker 02:
It doesn't tell you whether it's carried over to the next one or not.

[00:17:12] Speaker 00:
If you don't reach an agreement, then I think that it seems to be the practice here that it's unresolved.

[00:17:18] Speaker 03:
Unresolved could lead to arbitration or it could lead to a second mediation, right?

[00:17:24] Speaker 00:
Well, there's really no procedure by which the second mediation happens.

[00:17:28] Speaker 02:
It seems like the evidence that we have in the record is that grievances are routinely carried over from mediation to mediation.

[00:17:36] Speaker 00:
Well, Your Honor, the paralegal maintains this list that the court looked at earlier.

[00:17:40] Speaker 02:
I don't think you can excuse any of this because you let a paralegal do this.

[00:17:45] Speaker 02:
I think you're bound by your actions, just as the employee is bound by the union's actions.

[00:17:50] Speaker 02:
And so if the paralegal is not deleting grievances from the list that aren't intended to be carried over, then that's your problem, isn't it?

[00:17:59] Speaker 00:
I understand your point, Your Honor, but the list is not, and there's no testimony about saying the list is the agency's recognition that this is an ongoing or an open grievance.

[00:18:09] Speaker 03:
It's just a list issue.

[00:18:11] Speaker 03:
Let me try to come back to where we were.

[00:18:13] Speaker 03:
If they had filed here within 20 days after the second mediation, would it have been timely, yes or no?

[00:18:20] Speaker 00:
No, not under these facts because of the testimony that the parties agreed it was unresolved after the 2012

[00:18:29] Speaker 03:
But every time it goes to a second mediation, the first one's going to be unresolved.

[00:18:35] Speaker 00:
It wouldn't ever go to the second mediation had the arbitration been triggered when it should have, though, right?

[00:18:40] Speaker 00:
And so we're in this weird position where we have the second mediation.

[00:18:43] Speaker 02:
But it wouldn't go to the second mediation if they hadn't agreed to carry it over and keep it alive, either.

[00:18:49] Speaker 00:
Well, there was no agreement, Your Honor, to carry it over.

[00:18:51] Speaker 00:
It just stayed on the list.

[00:18:53] Speaker 02:
Why isn't that an agreement to carry it over?

[00:18:55] Speaker 02:
I mean, you all need to do, I mean, it seems to me what's happening here is the union and the agency have operated in this very loose procedures where they don't actually pay attention to the guidelines and the timing, and they submit things, you submit things, and you just move through the process, and nobody considers these deadlines as

[00:19:16] Speaker 02:
mandatory until it gets somewhere, and you get some favorable decision from a brand new FLRA, and then you unfairly invoke it against the employee.

[00:19:25] Speaker 02:
I mean, this whole process smacks of the agency knew all along that it was going to go to arbitration on this.

[00:19:34] Speaker 02:
It took it up for mediation.

[00:19:35] Speaker 02:
Once more, it's apparent that you take up tons of cases for mediation multiple times.

[00:19:41] Speaker 02:
when arbitrations are pending, even.

[00:19:43] Speaker 02:
And then at this almost last minute, right before the hearing, you say, whoops, this is untimely because you should have filed three years ago, even though we've been engaging you in this process throughout since then.

[00:19:57] Speaker 00:
But if that were the case, Your Honor, and we did mediate this in 2015, and the party's argument is, well, this was a second mediation, so we should.

[00:20:05] Speaker 01:
Well, you did mediate it in 2015.

[00:20:06] Speaker 01:
It was a second mediation.

[00:20:07] Speaker 01:
It was discussed.

[00:20:08] Speaker 01:
It was a second mediation.

[00:20:09] Speaker 00:
Well, even if that's so, let's count 2015 as the last mediation.

[00:20:13] Speaker 00:
The party still never filed a request for arbitration within 21 days following.

[00:20:17] Speaker 02:
But that's a different question that the arbitrator didn't fully respond to, which is,

[00:20:23] Speaker 02:
did that premature filing ripen into a timely filing once the mediation had finished?

[00:20:29] Speaker 02:
And there's certainly past press between you all that that's OK.

[00:20:34] Speaker 02:
And again, as Judge Jung pointed out, that's typical under the rules of the appellate procedure, that a premature notice of appeal can ripen into a timely notice of appeal.

[00:20:46] Speaker 02:
I mean, why shouldn't we send this back to the arbitrator to at least look at that secondary question?

[00:20:51] Speaker 00:
Well, first, Your Honor, that Ms.

[00:20:53] Speaker 00:
Buffkin didn't raise this sort of, we were early, so it's OK argument below.

[00:20:57] Speaker 00:
And so the arbitrator didn't.

[00:20:58] Speaker 00:
You didn't raise the argument below that there being early is not OK.

[00:21:03] Speaker 06:
And with my colleague's permission, if it's OK, I'd like to move you to a slightly different issue.

[00:21:09] Speaker 06:
Is that all right?

[00:21:10] Speaker 06:
OK.

[00:21:11] Speaker 06:
So I have a question.

[00:21:14] Speaker 06:
Which by the way I do, that the deadline to request arbitration is a procedural question and not a jurisdictional one.

[00:21:23] Speaker 06:
Why isn't your failure to object to their untimeliness waived?

[00:21:29] Speaker 00:
Your Honor, because we, the agency, did object with enough time for Ms.

[00:21:33] Speaker 00:
Buffkin to prepare a defense.

[00:21:34] Speaker 00:
So the case that is cited by Ms.

[00:21:36] Speaker 00:
Buffkin is the Gunn case.

[00:21:39] Speaker 00:
And in Gunn, the agency brought up this untimeliness defense at the day of the hearing.

[00:21:45] Speaker 00:
And so the court explained that it was unfair, and the union was very surprised at this untimely defense because it had never been brought up before.

[00:21:53] Speaker 00:
Here, in this case, the agency raised this in January.

[00:21:58] Speaker 00:
The arbitration was... January of what year?

[00:22:00] Speaker 00:
January of 2017, Your Honor.

[00:22:02] Speaker 00:
And when was the arbitration requested?

[00:22:05] Speaker 00:
April.

[00:22:05] Speaker 00:
The arbitration was requested when?

[00:22:07] Speaker 00:
The arbitration was requested in 2016, Your Honor, but the... Really?

[00:22:14] Speaker 06:
I thought the arbitration was requested in 2014.

[00:22:15] Speaker 06:
Or 2014.

[00:22:16] Speaker 06:
You're right.

[00:22:17] Speaker 06:
The arbitration was requested in 2014.

[00:22:20] Speaker 06:
There's a lot of process that actually did go on between 2014 and 2018.

[00:22:25] Speaker 06:
when you finally make your belated request after receiving a panel of arbitrators and selecting an arbitrator.

[00:22:33] Speaker 06:
And then you make your request.

[00:22:35] Speaker 06:
You say, you know, I know that we actually selected the arbitrator and we walked in line with them and did all this.

[00:22:40] Speaker 06:
But now we're going to say your whole request for arbitration we now deem untimely.

[00:22:46] Speaker 06:
think that you can do this at that stage?

[00:22:49] Speaker 00:
Yes, Your Honor.

[00:22:49] Speaker 00:
And before an arbitrator's- But here's my bigger question.

[00:22:52] Speaker 06:
You think you have a right to do it at that stage?

[00:22:54] Speaker 06:
And the reason I say that is because this particular lower court didn't conclude that the equities in his mind caused him to believe he would allow you to raise it, even though it should have probably been raised earlier.

[00:23:07] Speaker 06:
What he said was, well, I don't have a choice.

[00:23:12] Speaker 06:
because of precedent that binds him, but guess what?

[00:23:14] Speaker 06:
Doesn't bind me.

[00:23:16] Speaker 06:
And therefore, I have to conclude, gun doesn't apply here, and I don't have a choice.

[00:23:22] Speaker 06:
So I guess what you're arguing to me is I should decide as a matter of first principles that you should equitably be entitled to raise something at the stage you did four years after the request for arbitration.

[00:23:36] Speaker 00:
A few points to that, Your Honor.

[00:23:38] Speaker 00:
First, there's no procedure by which the agency could have raised this prior to an arbitrator being selected.

[00:23:44] Speaker 03:
Well, why did you go ahead and select the arbitrator?

[00:23:46] Speaker 03:
Don't you think that would be an occasion to raise it?

[00:23:49] Speaker 03:
Well, I say we're not going to participate in selecting the arbitrator because your request for arbitration is untimely.

[00:23:56] Speaker 00:
Your Honor, if the agency wouldn't agree to proceed with this arbitration process, it would be violating the master labor agreement.

[00:24:03] Speaker 01:
No, it wouldn't, not if you think it's untimely.

[00:24:08] Speaker 00:
We, Your Honor, it says, well, OK, even if the agency didn't.

[00:24:12] Speaker 02:
So if they send in a request to designate a panel, which is what starts this all off, I think, and you think it's too late, why isn't your response then?

[00:24:22] Speaker 02:
No, you missed your deadline.

[00:24:23] Speaker 02:
We're not going to agree to this.

[00:24:24] Speaker 00:
Well, because the end result of that is, under the master labor agreement, that FMCS ends up selecting the arbitrator anyway, and so then the agency would

[00:24:36] Speaker 00:
in either situation, whether they signed it and helped select the arbitrator or whether they didn't sign it.

[00:24:41] Speaker 00:
Either way, they're ending up before the arbitrator with their untimeliness issue.

[00:24:45] Speaker 02:
Yeah, but they're not on notice that you think it's untimely.

[00:24:48] Speaker 00:
Well, Your Honor, here they were on notice.

[00:24:50] Speaker 00:
way prior to the actual hearing.

[00:24:52] Speaker 00:
So there's really no reason.

[00:24:54] Speaker 06:
I think that this dialogue demonstrates that we're not the proper forum to decide whether it is equitable to allow you to raise the defense when you did in the process.

[00:25:10] Speaker 06:
So if I believe that gun controls and that the

[00:25:14] Speaker 06:
selection or the election to arbitrate is a procedural, not a jurisdictional requirement, then don't I have to vacate and remand this case?

[00:25:26] Speaker 00:
I think not, Your Honor.

[00:25:27] Speaker 00:
And because of the factual differences between this case and Gunn, again, this is not a case where the agency walked into the arbitration and said, by the way, this is untimely, and Ms.

[00:25:36] Speaker 00:
Buffkin was taken aback with no defenses like what happened in Gunn.

[00:25:40] Speaker 00:
This was not a surprise defense.

[00:25:41] Speaker 02:
But the arbitrator didn't rule on any of this stuff.

[00:25:43] Speaker 02:
The arbitrator did... I mean, let's assume we agree with you that they were untimely as to the 2012 mediation.

[00:25:55] Speaker 02:
That seems pretty clear.

[00:25:56] Speaker 02:
And if you had done nothing and not proceeded to mediate it again, you wouldn't be here.

[00:26:03] Speaker 02:
But when you relisted it, it seems to me that it keeps the whole thing alive and it allows them a new window to request arbitration.

[00:26:13] Speaker 02:
And the arbitrator did not rule on that question, and maybe the unit didn't specifically ask him to, but that doesn't prevent us from remanding and saying, look, you really missed this important question.

[00:26:26] Speaker 02:
And given that this goes to the employee's rights to process and challenge the removal, look at whether the second mediation.

[00:26:36] Speaker 02:
reopen the time period and whether that premature filing is sufficient and ripens into a timely appeal.

[00:26:44] Speaker 00:
I think the arbitrator looked at this just using the plain language of the MLA, and he said, under the MLA, you have 20 days following mediation.

[00:26:52] Speaker 02:
Yeah, but the problem with that is the plain language of the MLA doesn't address these facts, because it doesn't contemplate a second mediation on the same grievance.

[00:27:02] Speaker 02:
And we don't know the effect of that second mediation on the grievance, because there's no discussion whatsoever there.

[00:27:08] Speaker 02:
And it really feels unfair to the employee to keep stringing them along and relisting them for multiple mediations, but then come back at the end of it when those multiple mediations aren't fruitful and say, oh, well, you're out for arbitration and you can't get any judicial review of your removal because you should have filed eight years ago.

[00:27:29] Speaker 00:
Well, I think, Your Honor, that Ms.

[00:27:30] Speaker 00:
Buffkin was well aware that her first mediation was unresolved, finished, by filing for arbitration.

[00:27:37] Speaker 00:
You can't be in both mediation and arbitration at the same time.

[00:27:41] Speaker 00:
And so when Ms.

[00:27:43] Speaker 00:
Buffkin filed and requested arbitration, that's an implicit acknowledgment that mediation is over.

[00:27:48] Speaker 00:
Now we're in the next sequence of this grievance process.

[00:27:51] Speaker 00:
which is arbitration.

[00:27:52] Speaker 00:
So it's not as though she was in this world where she was unsure where she was.

[00:27:56] Speaker 00:
She's the one who affirmatively moved it to arbitration.

[00:28:00] Speaker 00:
She just did so too late.

[00:28:02] Speaker 06:
So I want to ask you a question related to this, because one of the things we are discussing is the possibility, I think, of if this went back, giving the arbitrator a chance to decide whether too early is untimely.

[00:28:16] Speaker 06:
That's one of the questions.

[00:28:17] Speaker 06:
This arbitrator said unequivocally with regard to the gun analysis that he was absolutely bound by decisions of the FLRA.

[00:28:26] Speaker 06:
Is that correct?

[00:28:27] Speaker 06:
Correct.

[00:28:28] Speaker 06:
And isn't it true that the FLRA has already ruled that an early arbitration is an untimely arbitration?

[00:28:35] Speaker 06:
That's correct, Your Honor.

[00:28:38] Speaker 00:
And so I think that that would really obviate any need to remand it, I suppose.

[00:28:42] Speaker 06:
What if I think that's wrong?

[00:28:44] Speaker 06:
Well, Your Honor, the arbitrator- No, it wouldn't obviate any need to remand it.

[00:28:48] Speaker 06:
I'm not bound by the FLRA.

[00:28:49] Speaker 06:
This arbitrator is bound by it, but I'm not.

[00:28:51] Speaker 00:
And then on this court's review, you would look at whether the arbitrator, excuse me, the arbitrator was arbitrary and capricious, and if he was following the choice of law that was incorrect as a matter of law.

[00:29:01] Speaker 00:
I don't know that that would be inconsistent with any of this court's law, Your Honor.

[00:29:06] Speaker 06:
But you didn't hear my colleagues suggest that multiple circuits have repeatedly held that early notice can be ripened into timely notice?

[00:29:15] Speaker 00:
Well, I suppose if you were to analogize that with this master labor agreement, I think that was in a different context, different language.

[00:29:21] Speaker 00:
This is a contractual agreement.

[00:29:22] Speaker 06:
Well, it's actually in a context in which the timelines are more jurisdictional, i.e.

[00:29:26] Speaker 06:
more strict than they are here.

[00:29:29] Speaker 06:
Okay, well, I think I got the answer to the question.

[00:29:32] Speaker 06:
Thank you.

[00:29:33] Speaker 03:
Thank you.

[00:29:34] Speaker 03:
Okay.

[00:29:34] Speaker 03:
Thank you.

[00:29:35] Speaker 05:
Mr. Hearn Yes, three quick points on the on the arbitrators application of FLRA law the contract actually says that he is bound to follow MSPB law or FLSA law as provided by law meaning

[00:29:53] Speaker 05:
simply reminding him that there's one tract or the other, and only as provided by law.

[00:30:00] Speaker 02:
So we can conclude that the FLRA is wrong, at least in cases that come to us.

[00:30:05] Speaker 05:
Well, as provided by law, the FLRA cases do not apply to this kind of case.

[00:30:12] Speaker 05:
And that goes to the small business administration case with a footnote, where the FLRA actually said, well, this only applies to cases before us.

[00:30:21] Speaker 05:
acknowledging that the cases before the Federal Circuit have a different rule.

[00:30:27] Speaker 05:
By the FLRA's own law to apply the small business administration, you've got to apply that distinction.

[00:30:33] Speaker 03:
Is the answer to that that we are not bound by the FLRA, right?

[00:30:40] Speaker 05:
Yes.

[00:30:43] Speaker 05:
On the gun case, on this issue of how long the agency waited to object to the timeliness, although in the gun case,

[00:30:52] Speaker 05:
VA went into the day of the arbitration.

[00:30:57] Speaker 06:
Stop.

[00:30:57] Speaker 06:
Even if I agree with you that gun applies here, and that's the only thing the arbitrator ruled on, is that he was bound by the FLRA decision that said gun didn't apply.

[00:31:09] Speaker 06:
But if I say gun applies, I can't decide whether it's timely or untimely, because there aren't clear rules on that.

[00:31:16] Speaker 06:
The arbitrator has to do that in the first instance.

[00:31:18] Speaker 06:
I can just tell him he's not bound to reject

[00:31:20] Speaker 06:
your untimeliness argument in light of Gunn, correct?

[00:31:24] Speaker 05:
No, I read Gunn as saying that you've got to object to timeliness at the first opportunity.

[00:31:30] Speaker 06:
Yes, but the government just came in and said, this really was our first opportunity.

[00:31:35] Speaker 06:
Maybe it wasn't, but I'm not going to make those fact findings.

[00:31:38] Speaker 05:
I think in Gunn, the court, if I recall correctly, and I apologize if I don't recall correctly, but if I recall correctly,

[00:31:47] Speaker 05:
The court suggested it should have been when they were asked to sign off on selecting an arbitrator, which happened years and years and years.

[00:31:59] Speaker 02:
Sure, but these are all fact-specific.

[00:32:02] Speaker 02:
case-specific questions of equity, and this wasn't specifically addressed by the arbitrator.

[00:32:07] Speaker 02:
That's correct.

[00:32:08] Speaker 02:
We don't know if there is any other reasons.

[00:32:12] Speaker 02:
So you're asking us essentially to look on what's a very sparse record with a very confusing set of proceedings between the union and the agency and make that factual determination for the first time on appeal.

[00:32:22] Speaker 05:
Well, except I think the record's very clear that there was about a half a dozen or more opportunities over the course of three and a half years for the agency to object.

[00:32:31] Speaker 02:
Well, there is also half a dozen opportunities over the course of those years for you to timely file an arbitration request, too.

[00:32:38] Speaker 02:
I mean, if you were reading the agreement correctly and at the end of the 2012 period,

[00:32:47] Speaker 02:
2012 mediation, you knew it wasn't resolved, then under the plain language of the agreement, that kicks in your obligation.

[00:32:55] Speaker 02:
You didn't meet it.

[00:32:56] Speaker 02:
So now we're in this murky world of what happens when you have a second mediation and you have ongoing back and forth discussions between the union and the government and request for arbitrations.

[00:33:08] Speaker 02:
That doesn't seem to me such an easy back call on whether it's Ecuador or not to excuse this filing or say it's premature and therefore untimely or ripens into timeliness or anything like that.

[00:33:21] Speaker 05:
I understand that reasoning.

[00:33:22] Speaker 05:
I will just, in closing, I just want to defend, however sloppy this process looks like about going to two mediations, the parties did resolve 61 cases that did not need to go to arbitration.

[00:33:34] Speaker 02:
Well, I understand.

[00:33:34] Speaker 02:
I'm not suggesting mediation's a bad thing.

[00:33:37] Speaker 02:
It just seems to me that you all should be much clearer about your intentions of what is happening after the mediation so everybody is on notice of how these timelines are going to apply.

[00:33:48] Speaker 02:
Shouldn't that order of listening to grievances resolved say also and give notice to the union and the underlying employees that if your grievance wasn't resolved through mediation, then we consider it closed and you have a right to seek arbitration?

[00:34:03] Speaker 02:
Why don't you insist that that language be put into the document?

[00:34:08] Speaker 05:
Well, I think those are all very good recommendations, Your Honor.

[00:34:13] Speaker 03:
OK, with that.

[00:34:14] Speaker 03:
Thank you.

[00:34:16] Speaker 03:
Thank both counsel.

[00:34:16] Speaker 03:
The case is submitted.

[00:34:17] Speaker 03:
That concludes our session for this morning.