[Federal Register Volume 75, Number 139 (Wednesday, July 21, 2010)]
[Rules and Regulations]
[Pages 42283-42292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17648]



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  Federal Register / Vol. 75, No. 139 / Wednesday, July 21, 2010 / 
Rules and Regulations  

[[Page 42283]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2425 and 2429


Review of Arbitration Awards; Miscellaneous and General 
Requirements

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Chairman and Members of the Federal Labor Relations 
Authority (the Authority) revise the regulations concerning review of 
arbitration awards and the Authority's miscellaneous and general 
requirements to the extent that they set forth procedural rules that 
apply to the review of arbitration awards. The purpose of the proposed 
revisions is to improve and expedite review of such awards.

DATES: Effective Date: October 1, 2010.

ADDRESSES: Written comments received are available for public 
inspection during normal business hours at the Case Intake and 
Publication Office, Federal Labor Relations Authority, Suite 200, 1400 
K Street, NW., Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Sarah Whittle Spooner, Counsel for 
Regulatory and External Affairs, (202) 218-7791.

SUPPLEMENTARY INFORMATION: In an effort to improve the Authority's 
decision-making processes, the Authority established an internal 
workgroup to study and evaluate the policies and procedures in effect 
concerning the review of arbitration awards. In order to solicit the 
input of arbitrators and practitioners, the workgroup held several 
focus groups, specifically: One focus group in Washington, DC with 
arbitrators; two focus groups in Washington, DC with practitioners; and 
focus groups in Chicago, Illinois and Oakland, California with both 
arbitrators and practitioners. In addition, through a survey, the 
Authority solicited input from parties to recent Authority decisions; 
the Authority also solicited general input through 
[email protected].
    Subsequently, the Authority proposed revisions to parts 2425 
(concerning review of arbitration awards) and 2429 (concerning 
miscellaneous and general requirements) of the Authority's regulations. 
The proposed rule was published in the Federal Register, and public 
comment was solicited on the proposed changes (75 FR 22540) (April 29, 
2010). Formal written comments were submitted by three agencies, five 
exclusive representatives, one arbitrator, and four other individuals. 
All comments have been considered prior to publishing the final rule, 
and most comments are specifically addressed in the section-by-section 
analysis below. Several revisions to the proposed rule have been made 
in response to suggestions and comments received.

Significant Changes

    The final rule, like the proposed rule, clarifies the processing of 
arbitration cases before the Authority. The final rule incorporates one 
significant change, based on consideration of a comment received. 
Specifically, based on a comment that parties should not be required to 
jointly request an expedited, abbreviated decision under Sec.  2425.7, 
the final rule deletes the requirement of a separate, joint request. 
Instead, the final rule allows an excepting party to request, in its 
exceptions, such a decision, and an opposing party to state, in its 
opposition, whether the opposing party supports or opposes such a 
request. Under the final rule, the Authority may issue an expedited, 
abbreviated decision even absent an excepting party's request and 
without regard to whether an excepting party's request is opposed.
    The proposed rule has also been modified in several other respects, 
primarily in response to specific comments. All of the changes from the 
proposed rule are described in the following sectional analyses of the 
final rule.

Sectional Analyses

    Sectional analyses of the amendments and revisions to part 2425, 
Review of Arbitration Awards, and part 2429, Miscellaneous and General 
Requirements, are as follows:

Part 2425--Review of Arbitration Awards

Section 2425.1

    The final rule as promulgated is the same as the proposed rule.

Section 2425.2

    With regard to Sec.  2425.2(b), comments regarding the change in 
the Authority's practice of calculating the due date for exceptions 
were generally positive. One commenter suggested that the Authority 
further clarify this section by adding, after the proposed rule's 
wording, ``The time limit for filing an exception to an arbitration 
award is thirty (30) days[,]'' the following: ``after the date of 
service of the award.'' The final rule incorporates this suggestion.
    One commenter supported the proposed wording of Sec.  2425.2(b) but 
questioned whether it is consistent with 5 U.S.C. 7122(b), which 
provides that an award shall be final and binding if no exception is 
filed ``during the 30-day period beginning on the date the award is 
served on the party[.]'' However, the Authority has discretion to 
interpret 5 U.S.C. 7122(b) to mean that ``the 30-day period beginning 
on the date the award as served'' counts ``day one'' of the thirty-day 
period as being the day after the award is served. Cf. AFGE v. FLRA, 
802 F.2d 47, 47-48 (2nd Cir. 1986) (interpreting provision of 5 U.S.C. 
7123(a) stating ``during the 60-day period beginning on the date on 
which the order was issued'' to exclude issuance date of order in 
calculating 60-day period). Consequently, the commenter's question does 
not raise a concern that requires amending the proposed rule.
    With regard to Sec.  2425.2(c), one commenter generally supported 
the proposed rule. In addition, one commenter suggested modifying the 
proposed wording of Sec.  2425.2(c)(1) to clarify that, if there is no 
legible postmark on an envelope containing an arbitration award that 
has been served by regular mail, then the date of service will be the 
date of the award. The commenter similarly suggested modifying the 
proposed wording of Sec.  2425.2(c)(2) to clarify that, if there is no 
indication of the date on which an award was deposited with a 
commercial-delivery service, then the

[[Page 42284]]

date of service will be the date of the award. The final rule 
incorporates these two suggestions.
    In addition, the final rule corrects a typographical error from the 
proposed rule. Specifically, the final rule refers to ``2429.22'' 
rather than ``2492.22.''
    However, as discussed further below, several additional commenters 
made suggestions that the final rule does not incorporate.
    First, one commenter expressed concern that, as e-mail or fax 
transmissions of awards may occur outside post-office hours, they could 
occur late at night or on weekends, including weekends with a Monday 
holiday, and the excepting party could lose several days of the thirty 
days allowed for exceptions. The commenter also asserted that both e-
mail and fax transmissions are subject to errors and electrical 
failures, e.g., the arbitrator could type the address incorrectly, an 
intermediate server could be inoperative, or there could be a power 
failure at the receiving end of a fax. The commenter suggested revising 
Sec.  2425.2(c)(3) as follows: ``If the award is served by e-mail or 
fax, then the date of service is the date of successful and complete 
transmission, and the excepting party will not receive an additional 
five days for filing exceptions. However, if the arbitrator transmits 
his/her decision on a non-workday or on a workday after 5 pm, then the 
decision will be considered as having been served on the following 
workday.''
    Second, and similarly, one commenter suggested that, when an award 
is sent by e-mail, a second method of service should also be used in 
calculating the date of service so that the award does not remain 
unread while its recipient is out of the office or otherwise 
unavailable.
    Third, one commenter stated that overseas organizations are 
sometimes subject to slow delivery of mailed arbitration awards, and 
suggested that the proposed rule should be revised to state that 
timeliness of exceptions for overseas parties will be calculated based 
on the date of receipt, not the date of mailing. The commenter further 
suggested that the date of receipt could then be established by an 
affidavit or sworn declaration. According to the commenter, such an 
approach would ``avoid the artificial constructs of mailing dates 
established by case[s] such as'' United States Immigration and 
Naturalization Service, 33 FLRA 885 (1989).
    Fourth, and finally, one commenter suggested modifying Sec.  
2425.2(c) to add, after ``the arbitrator's selected method is 
controlling for purposes of calculating the time limit for filing 
exceptions[,]'' the following: ``provided that the arbitrator gives the 
parties advance notice of the service method selected.'' Similarly, the 
commenter suggested adding a subparagraph (6) that would state: ``If 
the arbitration award is served by more than one method, and if the 
parties did not reach an agreement as to an appropriate method(s) of 
service of the award, and if the arbitrator failed to provide the 
parties with advance notice of the arbitrator's selected method of 
service of the award, then the last method of service used will 
determine the date of service of the arbitration award for purposes of 
calculating the time limits for exceptions.''
    With regard to these comments, the Authority purposely drafted the 
proposed rule to leave to the parties (or, absent agreement by the 
parties, to the arbitrator) decisions regarding how arbitration awards 
will be served. If parties have concerns similar to those set forth by 
the commenters, then the parties can agree to a method of service that 
does not present such concerns. Given the Authority's view that the 
determination of appropriate methods of service is best left to the 
parties, the final rule does not adopt these commenters' suggestions.

Section 2425.3

    With regard to Sec.  2425.3(a), one commenter noted that the 
Authority's current regulations provide that ``a'' party may file 
exceptions, and that the use of ``[a]ny'' party in the proposed rule 
may create unintended ambiguity. As the proposed rule is not intended 
to change the Authority's existing standards regarding who may file 
oppositions (or exceptions), and to avoid any unintended ambiguity, the 
final rule modifies the proposed rule to state that ``[a]'' party may 
file an opposition.
    Also with regard to Sec.  2425.3(a), one commenter ``assumes that 
it would continue to allow the agency or primary national subdivision 
to file oppositions (and exceptions) for its activities.'' As stated 
above, the proposed rule is not intended to change the Authority's 
existing standards with respect to who may file oppositions (or 
exceptions). No change is necessary to the final rule in this regard.

Section 2425.4

    Upon review of the proposed rule, the Authority clarifies Sec.  
2425.4(a)(3) to state that the excepting party is required to provide 
copies of documents that are not readily accessible to the Authority, 
and to give examples of such documents. In this connection, as Sec.  
2425.4(b) gives examples of the types of documents that are readily 
accessible to the Authority--and thus not required to be submitted with 
exceptions--the Authority believes that it will provide further clarity 
to the parties to also give examples of the types of documents that are 
not readily accessible to the Authority and, thus, required to be 
included with exceptions.
    In addition, as discussed further below in connection with Sec.  
2425.7, the final rule is modified to no longer require parties to 
jointly request an expedited, abbreviated decision. Rather, the 
excepting party may request, in its exceptions, such a decision, and 
the opposing party may state, in its opposition, whether it agrees with 
or opposes the request. Accordingly, Sec.  2425.4 is modified to create 
a new subsection (a)(4), which requires the excepting party to provide 
arguments in support of any request for an expedited, abbreviated 
decision within the meaning of Sec.  2425.7. As a result, Sec.  
2425.4(a)(4) and (5) from the proposed rule have been renumbered Sec.  
2425.4(a)(5) and (6) in the final rule.
    Further, in Sec.  2425.4(b), the final rule deletes, as 
unnecessary, the word ``actual'' before ``copies.''
    Moreover, as discussed further below, one commenter asserted in 
connection with Sec.  2429.5 that the word ``material'' implies that 
the Authority will consider ``immaterial'' matters that were not raised 
before an arbitrator. As such, the word ``material'' has been deleted 
from both Sec.  2429.5 and Sec.  2425.4(c).
    With regard to Sec.  2425.4(a)(3), one commenter stated that the 
party that files exceptions should be required to serve the other party 
with copies of any documents that are submitted to the Authority. 
According to the commenter, without such a requirement, the opposing 
party may not be able to discern which documents have already submitted 
and which documents the opposing party will need to submit. However, as 
Sec.  2429.27 of the Authority's regulations already requires the 
excepting party to serve such copies on the other party, there is no 
need to modify the proposed rule in this regard.
    With regard to Sec. Sec.  2425.4(a)(5) and 2425.4(b), commenters 
approved of these changes. Consistent with the revision to Sec.  
2425.4(a)(3) to clarify that an excepting party is required to provide 
documents that are not readily accessible to the Authority, the 
wording, ``Notwithstanding subsection (a)(3) of this section,'' has 
been deleted from Sec.  2425.4(b), as that wording is no longer 
necessary.

[[Page 42285]]

    With regard to Sec.  2425.4(c), one commenter supported this 
change. However, two commenters expressed concerns.
    The first commenter did not specifically cite Sec.  2425.4(c), but 
made comments that relate to it. Specifically, the commenter expressed 
a concern that the proposed rule would require parties to present ``the 
entire Law Library of Congress'' to the arbitrator in order ``to avoid 
something being left out.'' The same commenter questioned why an award 
could not be challenged where an arbitrator has reached a conclusion 
that is not based on evidence or legal issues presented at arbitration.
    The second commenter stated that the proposed rule ``expands'' the 
Authority's current practice of declining to resolve issues that were 
not raised before an arbitrator. Specifically, the commenter asserted 
that the wording concerning ``challenges to an awarded remedy that 
could have been, but were not, presented to the arbitrator'' is 
particularly problematic. According to this commenter, in many cases, 
unions request numerous possible remedies, some of which may not be 
clear, and frequently request ``any and all proper relief[.]'' The 
commenter stated that it may not be reasonable for a responding party 
to be required to anticipate any remedy that an arbitrator may fashion. 
In addition, the commenter stated that some agencies have expedited 
arbitration procedures where there is no transcript or post-hearing 
brief, and this will make it difficult for a party to demonstrate that 
a particular argument was submitted before the arbitrator. Accordingly, 
the commenter suggests adding the following wording to the end of 
proposed Sec.  2425.4(c): ``However, this prohibition does not apply 
where one party could not reasonably foresee a defect or basis for 
filing exceptions recognized in Sec.  2425.4(c).''
    With regard to the concerns raised by these two commenters, Sec.  
2425.4(c) is intended merely to incorporate in regulations--not to 
expand--the Authority's existing practice under the current version of 
Sec.  2429.5 of the Authority's regulations. Under that practice, 
parties are required to raise arguments--including challenges to 
remedies--only to the extent that they could reasonably know to do so. 
See, e.g., U.S. DHS, U.S. Customs & Border Prot., JFK Airport, Queens, 
N.Y., 64 FLRA 841, 843 (2010) (as agency challenged potential award of 
overtime on one ground before arbitrator, it could not challenge award 
of overtime on another ground for the first time before Authority). 
Thus, if a party could not reasonably know to raise an argument or a 
challenge to an awarded remedy, then the party would not be precluded 
from filing an exception raising that argument or challenge. With 
regard to the latter commenter's concern regarding proving that an 
issue was raised below in an expedited proceeding with no record, the 
party could assert in its exceptions that it raised an issue below and 
explain why it cannot provide evidence to support that assertion. Cf. 
U.S. DOJ, Fed. Bureau of Prisons, U.S. Penitentiary, Atlanta, Ga., 57 
FLRA 406, 408-09 (2001) (Chairman Cabaniss dissenting on other grounds) 
(agency stated in exceptions that it raised argument before arbitrator, 
and Authority found, ``absent evidence in the record to the contrary,'' 
that argument was properly before Authority). Thus, there is no need to 
modify the proposed rule in the manner suggested by the latter 
commenter.
    With regard to Sec.  2425.4(d), one commenter supported the use of 
forms, particularly when expedited, abbreviated decisions are requested 
under Sec.  2425.7.

Section 2425.5

    One commenter recommended that the requirements for oppositions be 
as explicit as the requirements for filing exceptions. According to the 
commenter, the proposed rule as written provides for interpretation by 
the opposing party as to what should be included in and with an 
opposition filing.
    However, unlike exceptions, which are provided for by 5 U.S.C. 
7122, oppositions are entirely optional. As such, the Authority 
purposely worded Sec.  2425.5 to not impose specific, mandatory filing 
requirements, and there is no basis for modifying the rule as 
suggested.
    Nevertheless, the Authority has decided that Sec.  2425.5 can be 
clarified. In this connection, the final rule adds a statement that the 
opposing party should submit copies of documents only if they are not 
readily accessible (such as those discussed in the revision to Sec.  
2425.4(a)), not copies of readily accessible documents (such as those 
discussed in Sec.  2425.4(b)).
    In addition, as discussed above in connection with Sec.  2425.4 and 
below in connection with Sec.  2425.7, the final rule has been modified 
to eliminate the requirement of joint requests for expedited, 
abbreviated decisions. Instead, the final rule allows an excepting 
party to request such a decision, and Sec.  2425.5 has been modified to 
provide that the opposing party should state whether it supports or 
opposes such a request and to provide supporting arguments.

Section 2425.6

    As an initial matter, the final rule corrects a typographical error 
from the proposed rule. Specifically, the final rule states ``through 
(b)(2)(iv)[,]'' rather than ``through (iv)[.]''
    In addition, the Authority has decided to change Sec.  2425.6 to 
reflect the fact that a party's failure to support a properly raised 
ground for review may be subject to ``denial'' rather than 
``dismissal[.]'' As such, the final rule adds the words: (1) ``or 
denial'' after ``or dismissal[,]'' and ``or support'' after 
``raise[,]'' in the title of Sec.  2425.6; and (2) ``or denial'' after 
the word ``dismissal'' in the text of Sec.  2425.6(e).
    With regard to Sec.  2425.6(b)(2), commenters generally supported 
listing the private-sector grounds for finding arbitration awards 
deficient. However, two commenters raised questions about two of those 
grounds.
    The first commenter stated that the ground of ``incomplete, 
ambiguous, or contradictory'' set forth in Sec.  2425.6(b)(2)(iii) 
appears to be inconsistent with controlling Supreme Court precedent, 
citing United States Steelworkers of America v. Enterprise Wheel and 
Car Corp., 363 U.S. 593 (1960). In this connection, the commenter 
stated that ambiguity or imprecision in a private-sector arbitration 
award is not an appropriate basis for judicial review. The commenter 
suggested deleting this reference from the regulations, alleging that 
it represents a significant expansion of the Authority's role in 
reviewing arbitration awards beyond what was contemplated by Congress. 
In addition, the commenter asserted that adding this reference is bad 
policy because it will undermine the finality of the arbitration 
process and result in additional appeals and costs to the parties. In 
this connection, the commenter stated that, even if Authority decisions 
set forth this ground, setting it forth in regulations will result in 
an ``undesirable expansion of the Authority's interference in the 
arbitration process,'' which will result in more, not less, litigation 
and expense. Alternatively, the commenter suggested that the Authority 
add the word ``materially'' before ``incomplete, ambiguous, or 
contradictory'' in order to make clear that de minimis errors or 
omissions in arbitration awards will not serve as the basis for 
submitting exceptions. The commenter further stated that the regulation 
is somewhat ambiguous because it is unclear whether it is aimed at 
empowering the Authority to correct arbitrator decisions that are

[[Page 42286]]

incomplete, ambiguous, or contradictory, or merely arbitrator awards 
(i.e., remedies) that are unclear. The commenter suggested that, if the 
Authority keeps the provision, then it would be appropriate to clarify 
its intent.
    In response to that commenter, the private-sector ground of 
``incomplete, ambiguous, or contradictory'' that the Authority has 
discussed in its decisions requires that the award be so incomplete, 
ambiguous, or contradictory as to make implementation of the award 
impossible. E.g., AFGE, Local 1395, 64 FLRA 622, 624 (2010). As such, 
minor incompleteness, ambiguity, or imprecision in the award would not 
provide a basis for setting aside the award, as long as the award is 
sufficiently clear so that the parties know how to implement it. 
Nevertheless, as clarification is warranted in this regard, and in an 
attempt to avoid an increase in the number of exceptions that allege 
that an award is deficient merely because it is incomplete, ambiguous, 
or contradictory in some manner, the final rule adds, after 
``contradictory[,]'' the words ``as to make implementation of the award 
impossible.''
    The second commenter questioned whether the ``public policy'' 
ground set forth in Sec.  2425.6(b)(2)(iv) has any place in Federal-
sector arbitration review because ``[a]t best, it is redundant, 
mirroring the `contrary to law, rule, or regulation''' ground. In this 
regard, the commenter asserted that the ``public policy'' ground must 
be well defined and dominant, and is to be ascertained by reference to 
the laws and legal precedents and not from general consideration of 
supposed public interests. According to the commenter--citing United 
Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 
(1987), and W.R. Grace & Co. v. Local Union 759, International Union of 
United Rubber Workers, 461 U.S. 757, 766 (1983)--courts' refusal to 
enforce an arbitrator's interpretation of a contract that contravenes 
public policy has its roots in the general common-law doctrine that 
courts may refuse to enforce contracts that violate law or public 
policy. The commenter noted that, in the Federal sector, parties are 
not required to bargain over proposals that are inconsistent with 
Federal law or government-wide regulation, and both the negotiability 
appeal process and the agency-head review process are intended to 
ensure that unlawful provisions do not end up in contracts. Thus, the 
commenter asserted that there is ``no real need'' to set forth this 
ground, and if it is listed as an independent ground, then the 
Authority should clarify how an award found deficient as contrary to 
public policy would not also be found to be contrary to law.
    In response to that commenter, the Authority is required to assess 
whether awards are deficient on private-sector grounds. See 5 U.S.C. 
7122(a)(2). Although the public-policy ground likely overlaps to some 
degree with the ``contrary to law, rule, or regulation'' ground that 
the Authority applies, it is not clear that they are entirely 
coextensive. As such, it is appropriate to list it as a ground, and to 
provide guidance as to its meaning through Authority decisional law and 
informal guidance. Accordingly, no change is necessary to the final 
rule in this regard.
    With regard to Sec.  2425.6(e)(1), one commenter suggested deleting 
the word ``or'' and adding, after the word ``award'': ``, or fails to 
meet any statutory or regulatory time limit[.]'' In effect, the 
commenter's suggestion would add a statement that untimely exceptions 
will be dismissed. However, the purpose of Sec.  2425.6 is to set forth 
the substantive grounds for review, and to provide that an exception is 
subject to dismissal or denial either if a party fails to raise and 
support a recognized ground, or if the award involves a matter over 
which the Authority lacks jurisdiction. Discussing timeliness and other 
types of deficiencies would be outside the scope of this purpose. 
Accordingly, no change is made to the final rule in this regard.
    Another commenter suggested that Sec.  2425.6 should clarify that 
no exception may be based on an argument or claim that was not advanced 
to the arbitrator, unless the arbitrator's award initially ``injects'' 
the basis for the exception. This point is sufficiently made in 
Sec. Sec.  2425.4(c) and 2429.5, and there is no need to repeat it in 
Sec.  2425.6. Accordingly, no change is made to the final rule in this 
regard.
    Finally, one commenter stated that the Authority should provide 
arbitrators and parties with the types of arbitration awards over which 
the Authority lacks jurisdiction, ``so that the arbitrator's award is 
final without the option of an appeal'' if the Authority lacks 
jurisdiction over the case. To the extent that the commenter has 
suggested that the regulation should provide that those types of awards 
automatically become final, without allowing any filing of exceptions, 
there must be some mechanism for the Authority to determine whether an 
award concerns a matter over which the Authority lacks jurisdiction. 
Accordingly, it is inappropriate to modify Sec.  2425.6 to provide that 
any type of award automatically becomes final without an opportunity to 
file exceptions with the Authority. Thus, no change is made to the 
final rule in this regard. However, under the final rule and consistent 
with current practice, the Authority will continue to dismiss 
exceptions in cases where it lacks jurisdiction.

Section 2425.7

    As an initial matter, the Authority has decided to delete the use 
of the term ``short-form'' from the final rule because that term is 
used internally at the Authority and is unlikely to have meaning to 
many people outside the Authority. Instead, Sec.  2425.7 and other 
pertinent sections of the final rule refer to ``expedited, 
abbreviated'' decisions.
    One commenter suggested deleting the word ``briefly'' because even 
an expedited, abbreviated decision will fully resolve the parties' 
arguments; it will just do so without a full explanation of the 
background, award, arguments, and analysis of those arguments. In the 
alternative, the commenter suggested substituting the word 
``summarily'' for ``briefly.'' The final rule adopts the commenter's 
suggested deletion of the word ``briefly'' because it is redundant.
    Another commenter suggested a more fundamental change to Sec.  
2425.7. Specifically, the commenter suggested that, rather than 
requiring a joint request for an expedited, abbreviated decision, ``a 
request from one party (i.e. the excepting party)'' should be 
sufficient. The commenter also noted that the proposed rule does not 
address how the Authority will expedite the process and issue a 
decision and provides no timeline, even if only a target, for the 
issuance of this type of decision.
    Upon consideration of the commenter's suggestion that the proposed 
rule delete the requirement of a joint request, the final rule provides 
that the excepting party may request an expedited, abbreviated 
decision, and that the opposing party may state whether it agrees with 
or opposes the request. In this connection, particularly given that the 
Authority may issue this type of decision without any request from the 
parties, it is appropriate to delete the requirement of a joint 
request. As such, the final rule allows the excepting party to state 
whether it is willing to accept an abbreviated Authority decision in 
exchange for a more expedited decision. An added benefit to deleting 
the requirement of a joint request is that it reduces the possibility 
for procedural deficiencies that may attend the creation of a new 
filing, which could delay the processing of this type of case, contrary 
to the

[[Page 42287]]

intent of Sec.  2425.7. Accordingly, the final rule deletes the 
requirement of a joint request and makes clear that the excepting party 
may make this request.
    With regard to the commenter's statement that the proposed rule 
does not state how the Authority will expedite the process and provides 
no timeline for when it will issue a decision, these matters are best 
left for development through practice, rather than regulation. Thus, no 
change is made to the final rule in this regard.
    Another commenter suggested that Sec.  2425.7 be modified to make 
the sentence beginning, ``Even absent the parties' joint request,'' the 
first sentence of a second paragraph that would then state: ``Parties 
are encouraged to provide a short position statement as to why a short-
form decision is appropriate or inappropriate for that particular case. 
The Authority will consider factors such as: (1) The novelty of the 
disputed issues; (2) the potential impact of the decision on other 
cases; (3) the need, if any, to clarify previously issued decisions; 
(4) the impact an extended timeline for decision will have on labor-
management relations.''
    As discussed previously, Sec.  2425.4(a)(4) has been modified to 
state that the excepting party must provide supporting arguments for 
any request for an expedited, abbreviated decision under this section, 
and Sec.  2425.5 has been modified to state that the opposing party 
should state whether it supports or opposes such a request and provide 
supporting arguments. With regard to the commenter's suggestion 
regarding the factors that the Authority should consider, Sec.  2425.7 
is broadly worded to state that the Authority will consider ``all of 
the circumstances of the case,'' and sets forth certain examples. It is 
unnecessary to modify the proposed rule to list additional examples, 
although parties may provide in their briefs whatever arguments that 
they believe support issuing or not issuing this type of decision. No 
change is made to the final rule in this regard.
    One commenter stated that Authority decisions in arbitration cases 
may be subject to further review, for example by the Equal Employment 
Opportunity Commission. Thus, the commenter suggested that Sec.  2425.7 
should specify that if a case involves an alleged violation of a civil-
rights statute, then an expedited, abbreviated decision would not be 
appropriate. However, as discussed above, the proposed rule is broadly 
worded and does not preclude parties from listing these sorts of 
reasons why an abbreviated decision would not be appropriate in a 
particular case. Accordingly, no change is made to the final rule in 
this regard.
    Finally, one commenter agreed with the proposed rule, but suggested 
that the Authority should decide all of its cases in chronological 
order. This suggestion is contrary to the intent of Sec.  2425.7, which 
is to provide for a mechanism for quickly deciding newly filed cases. 
Accordingly, no change is made to the final rule in this regard.

Section 2425.8

    One commenter supported the provision of assistance from the 
Authority's Collaboration and Alternative Dispute Resolution Program 
(CADR), ``as long as that is a final step and the end of the appeal 
process by either party.'' To the extent that the commenter has 
suggested that parties' decision to use CADR should waive their ability 
to have the Authority resolve their exceptions, this suggestion would 
discourage parties from using CADR. Accordingly, no change is made to 
the final rule in this regard.
    Another commenter stated that, after reviewing exceptions and any 
opposition, if the Authority determines that CADR would be appropriate 
in a particular case, then the Authority should contact the parties and 
encourage or suggest the use of CADR, rather than waiting for parties 
to jointly request it. According to the commenter, parties will rarely 
jointly request CADR on their own, which will result in missed 
opportunities to save government resources that could be saved through 
greater and more effective use of CADR.
    It is unnecessary to specify in regulations how the Authority will 
proceed with regard to contacting parties in appropriate cases. The 
Authority's current negotiability regulations do not specify how 
contacts between CADR and parties proceed, and it is appropriate not to 
so specify here. Accordingly, no change is made to the final rule in 
this regard. However, the Authority will seek to develop a practice or 
process that encourages the use of CADR in arbitration cases.
    One commenter approved of the opportunity for CADR but suggested 
that ``the requirements and relevant material regarding alternative 
dispute resolution be set forth explicitly in the regulation rather 
than an exterior source such as a website.'' The commenter also 
suggested that, to avoid delay on the part of the opposing party 
``after an opposition has been filed,'' CADR ``should have the right to 
stop the tolling and require the submission of the opposing party's 
opposition.'' In this connection, the commenter stated that requiring 
an opposing party to place its position ``on the table'' can assist in 
the settlement process.
    With regard to the commenter's suggestion that the regulation set 
forth ``the requirements and relevant material regarding alternative 
dispute resolution[,]'' the proposed rule is intentionally modeled 
after the Authority's negotiability regulations concerning CADR. 
Accordingly, no change is made to the final rule in this regard.
    With regard to the commenter's suggestion that CADR should have the 
authority to stop the tolling and require the submission of the 
opposing party's opposition, to the extent that the commenter has 
suggested that CADR should have the authority to immediately demand an 
opposition statement, this suggestion could discourage some parties 
from choosing to use CADR because it could result in some opposing 
parties forfeiting a portion of their time for filing an opposition. 
Accordingly, no change is made to the final rule in this regard.
    Finally, one commenter suggested clarifying how long the time 
limits will be tolled in cases where CADR assists the parties, and 
asked whether the party filing an opposition would get a full thirty 
days in the event that CADR's efforts prove unsuccessful. In 
negotiability cases where parties agree to use CADR, their case is held 
in abeyance and their filing deadlines are tolled, but the 
negotiability regulations do not set forth the details of this 
practice. Rather, the Authority has found it appropriate to let these 
details be worked out through practice, and it is appropriate to do so 
in the arbitration context as well. Accordingly, no change is made to 
the final rule in this regard.

Section 2425.9

    One commenter approved of this regulation but suggested that the 
Authority reference its ``subpoena and enforcement power[.]'' It is 
unnecessary to reference any Authority ``powers'' in this section. 
Accordingly, no change is made to the final rule in this regard.
    Another commenter stated that the Authority should be circumspect 
in implementing this section so as not to provide the excepting party a 
second chance to fully meet the requirements of Sec.  2425.4 and 
thereby supplement the record. In this connection, the commenter did 
not object to the Authority seeking clarification where administrative 
errors are identified, but stated that providing an excepting party an 
opportunity to ``more effectively formulate its exception'' could 
undercut the finality of the arbitration process.

[[Page 42288]]

    Although the commenter has raised valid concerns, there is no need 
to modify the rule. Instead, as the commenter's own comment suggests, 
these concerns are appropriately taken into account in ``implementing'' 
this regulation. Accordingly, no change is made to the final rule in 
this regard.
    Finally, one commenter suggested that arbitrators should be 
qualified to review parties' documentation and testimony to determine 
whether they are ``FLRA worthy.'' The commenter stated that, if an 
arbitrator is not trained to make this determination, then: Training 
should be provided; any decisions about the adequacy of evidence should 
be resolved during the formal arbitration proceedings; and the 
arbitrator should ensure that the parties provide adequate evidence 
prior to an exception being filed with the Authority.
    To the extent that the commenter has suggested that the Authority 
should regulate how the arbitration process works and/or provide 
arbitrators with the authority to determine the content of filings with 
the Authority, the former would be an unwarranted intrusion by the 
Authority in the arbitration process, and the latter would be an 
unwarranted intrusion by the arbitrator in the exceptions process. 
Accordingly, no change is made to the final rule in this regard.

Section 2425.10

    One commenter acknowledged that this regulation merely restates the 
Authority's current regulations, but suggested deleting the words ``and 
making such recommendations'' because the commenter did not recall ever 
seeing an Authority decision where the Authority made a 
``recommendation'' regarding an award. In this connection, the 
commenter stated that the Authority denies an exception, remands an 
arbitration award, or sets the award aside in whole or in part. 
However, 5 U.S.C. 7122 expressly provides that the Authority may ``make 
such recommendations concerning the award as it considers necessary,'' 
and it is appropriate to include the discussion of ``recommendations'' 
in Sec.  2425.10 as well. Accordingly, no change is made to the final 
rule in this regard.

Part 2429--Miscellaneous and General Requirements

Section 2429.5

    One commenter asserted that clarification is needed because the 
word ``material'' implies that the Authority will consider 
``immaterial'' evidence. The commenter recommended changing the first 
sentence of Sec.  2429.5 to the following: ``The Authority will not 
consider any evidence, issue, assertion, argument, affirmative defense, 
remedy, or challenge to an awarded remedy, that could have been but was 
not presented * * *''.
    The commenter's statement that the use of ``material'' implies that 
the Authority will consider ``immaterial'' evidence is correct. As the 
Authority did not intend to imply that it will consider immaterial 
evidence, the final rule deletes the word ``material[.]'' To the extent 
that the commenter's suggested wording would result in other, minor 
changes to the wording of the existing regulation, there is no basis 
for modifying the remaining wording, and that wording remains unchanged 
in the final rule.
    One commenter repeated the arguments that the commenter made in 
connection with Sec.  2425.4(c), specifically, that the proposed rule 
expands the Authority's basis for refusing to decide arguments raised 
on appeal if those arguments were not previously made to the 
arbitrator; that it may not always be reasonable for a party to 
anticipate an awarded remedy; and that parties often have expedited 
arbitration procedures that do not provide for records that will enable 
a party to demonstrate that it raised an issue before the arbitrator. 
For the reasons discussed in connection with Sec.  2425.4(c), it is 
unnecessary to modify Sec.  2429.5 in response to these concerns.
    Another commenter stated that the Authority should entirely 
withdraw the proposed amendment to Sec.  2429.5. According to the 
commenter, the amended wording will greatly increase the litigation 
burden associated with arbitration and undermine Congress's intent in 5 
U.S.C. 7121 that Federal workplace disputes be resolved through a 
quick, efficient, and inexpensive negotiated grievance procedure. In 
this connection, the commenter asserted that many negotiated grievance 
procedures provide for the simultaneous submission of post-hearing 
briefs and do not provide for reply briefs, which minimizes parties' 
time and expense in connection with litigation but results in parties 
not challenging remedies that are sought only in post-hearing briefs. 
The commenter also asserted that the proposed rule's use of the word 
``could'' in connection with whether a challenge ``could'' have been 
presented to an arbitrator will force parties whose agreements do not 
provide for reply briefs to arbitrators to choose between: (1) Moving 
for permission to file, and filing, a reply brief with the arbitrator, 
which would prolong litigation and impose additional costs; or (2) 
filing exceptions with the Authority to challenge an awarded remedy, 
and run the risk of the opposing party asserting that the challenge 
should be dismissed because it could have been, but was not, presented 
to the arbitrator. According to the commenter, parties could modify 
their collective bargaining agreements to expressly permit reply briefs 
in arbitration, but reopening and modifying agreements may only be done 
at certain times and under certain conditions, and would impose time 
and expense. According to the commenter, the proposed amendment would 
discourage the use of faster, less costly, expedited arbitration 
procedures because parties will be encouraged to raise arguments that 
they otherwise would not raise. The commenter also asserted that the 
proposed wording will impose new burdens on the Authority because it 
will require the Authority to develop case law addressing when a 
challenged remedy ``could'' have been presented to an arbitrator. 
Further, the commenter stated that parties are unable to determine what 
an awarded remedy will be before an award actually issues, and 
questioned whether the wording ``challenges to an awarded remedy'' 
would require parties to file reply briefs (as discussed above) as well 
as post-award briefs to the arbitrator to challenge an awarded remedy. 
The commenter also asserted that the proposed wording imposes burdens 
not only in the arbitration context, but also in other processes where 
simultaneous briefs are filed, which would require greater expenditures 
of time for parties to file motions and for triers of fact to rule on 
those motions.
    With regard to the commenter's concerns, as discussed previously, 
the proposed amendments to Sec.  2429.5 merely incorporate into 
regulation the Authority's existing practice under Sec.  2429.5. Thus, 
they do not impose any new, additional burdens on parties. With regard 
to the commenter's concern about the fact that post-hearing briefs 
often are submitted simultaneously, the Authority takes, and will 
continue to take, this factor into account in determining whether a 
party could have raised an issue before an arbitrator. E.g., U.S. Dep't 
of Labor, 60 FLRA 737, 738 (2005) (agency could file exception 
regarding issue that was raised for the first time in union's post-
hearing brief to arbitrator, which was submitted at the same time as 
agency's post-hearing brief). The proposed revisions to Sec.  2429.5 
would not change this practice, and would not impose a new burden on 
parties to move to request an opportunity for additional filings or to

[[Page 42289]]

file post-award requests with an arbitrator. With regard to the 
commenter's statement that the proposed amendment will prolong 
litigation by encouraging parties to submit additional arguments to 
arbitrators that they otherwise would not submit, parties should be 
raising any arguments that they wish to raise to an arbitrator and 
giving the arbitrator the opportunity to resolve those issues. The 
Authority believes that clarifying the meaning of Sec.  2429.5 will 
encourage the finality of arbitration awards and preclude parties from 
prolonging litigation by filing exceptions with the Authority on issues 
that they could, and should, have raised to an arbitrator. As for the 
commenter's assertion regarding other, non-arbitration contexts, as 
discussed previously, the proposed amendment to Sec.  2429.5 merely 
incorporates into regulation the Authority's existing practice.

Section 2429.21

    One commenter suggested eliminating the last sentence of Sec.  
2429.21(a) and inserting the following new subparagraph: ``(b) When the 
period of time prescribed or allowed under this subchapter is 7 days or 
less, intermediate Saturdays, Sundays, and Federal legal holidays shall 
be excluded from the computations.'' However, the Authority's current 
regulations already have a Sec.  2429.21(b), and there is no need to 
separate out this one sentence from the rest of Sec.  2429.21(a). 
Further, the wording set forth in the proposed rule is identical to the 
existing wording of Sec.  2429.21(a), with the exception of the 
deletion of ``except as to the filing of exceptions to an arbitrator's 
award under Sec.  2425.1 of this subchapter,'' which merely reflects 
the change in how the Authority will calculate the timeliness of 
exceptions. For these reasons, the final rule as promulgated is the 
same as the proposed rule.

Section 2429.22

    As an initial matter, the final rule corrects a typographical error 
from the proposed rule. Specifically, the final rule states that ``5 
days shall be added to the prescribed period[,]'' rather than ``5 days 
shall be added to the proscribed period[.]''
    One commenter stated that mail to many government offices is 
subjected to off-site screening for hazardous substances, which 
sometimes delays mail for as long as a month. In fact, the commenter 
asserted that this occurred in connection with a recent Authority 
decision to which the commenter was a party. The commenter recommended 
adding the following wording: ``; and further provided that if a party 
certifies under oath that it did not actually receive a notice or other 
paper until more than 5 days after the date of mailing or deposit with 
the commercial delivery service, that larger number of days shall be 
added to the pr[e]scribed period.''
    The commenter's statement raises valid concerns regarding off-site 
irradiation of mail. However, as discussed in connection with Sec.  
2425.2, the determination of how an award should be served is left to 
the agreement of the parties, and parties that have concerns regarding 
receipt of regular mail can make arrangements to have an award served 
by some other method that does not present the same concerns. 
Accordingly, a change to the wording is not warranted, and the final 
rule does not incorporate the commenter's suggestion.

Other Regulatory Requirements

    Two commenters made additional suggestions that do not pertain to 
particular regulations.
    The first commenter stated that if ``an arbitration award has been 
previously awarded by the FLRA to Union employees at a similar 
facility,'' then that award should be precedential, and the Authority 
should, ``within the five day screening process by FLRA staff[,]'' 
automatically deny any exceptions to a second, similar award. In this 
connection, the commenter stated that, during the arbitration process, 
the arbitrator could review the previous, similar case(s) and 
subsequent Authority decision(s), and include those findings in the 
``Opinion and Award.''
    To the extent that the commenter has suggested that the Authority 
should automatically deny exceptions to an arbitration award merely 
because that award resolves issues similar to those that were resolved 
in a previous arbitration award, it is well established that 
arbitration awards are not precedential. E.g., U.S. Dep't of Veterans 
Affairs, Med. Ctr., W. Palm Beach, Fla., 63 FLRA 544, 548 (2009). 
Accordingly, there is no basis for modifying the proposed rule in this 
connection.
    The second commenter suggested that the Authority post a ``Q&A'' or 
``FAQ'' on the Authority's Web site that might assist agency and union 
representatives in avoiding procedural mistakes. The Authority does not 
believe that the commenter's suggestion warrants any modifications to 
the proposed rule, but will take the suggestion into account in 
developing other, non-regulatory guidance for parties and arbitrators.

Executive Order 12866

    The Authority is an independent regulatory agency, and as such, is 
not subject to the requirements of E.O. 12866.

Executive Order 13132

    The Authority is an independent regulatory agency, and as such, is 
not subject to the requirements of E.O. 13132.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Chairman of the Authority has determined that this 
regulation, as amended, will not have a significant impact on a 
substantial number of small entities, because this rule applies only to 
Federal employees, Federal agencies, and labor organizations 
representing Federal employees.

Unfunded Mandates Reform Act of 1995

    This rule change will not result in the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

    The amended regulations contain no additional information 
collection or record-keeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Parts 2425 and 2429

    Administrative practice and procedure, Government employees, Labor 
management relations.


0
For the reasons stated in the preamble, the Authority amends 5 CFR 
chapter XIV as follows:

[[Page 42290]]

0
1. Part 2425 is revised to read as follows:

PART 2425--REVIEW OF ARBITRATION AWARDS

Sec.
2425.1 Applicability of this part.
2425.2 Exceptions--who may file; time limits for filing, including 
determining date of service of arbitration award for the purpose of 
calculating time limits; procedural and other requirements for 
filing.
2425.3 Oppositions--who may file; time limits for filing; procedural 
and other requirements for filing.
2425.4 Content and format of exceptions.
2425.5 Content and format of opposition.
2425.6 Grounds for review; potential dismissal or denial for failure 
to raise or support grounds.
2425.7 Requests for expedited, abbreviated decisions in certain 
arbitration matters that do not involve unfair labor practices.
2425.8 Collaboration and Alternative Dispute Resolution Program.
2425.9 Means of clarifying records or disputes.
2425.10 Authority decision.


    Authority: 5 U.S.C. 7134.


Sec.  2425.1  Applicability of this part.

    This part is applicable to all arbitration cases in which 
exceptions are filed with the Authority, pursuant to 5 U.S.C. 7122, on 
or after October 1, 2010.


Sec.  2425.2  Exceptions--who may file; time limits for filing, 
including determining date of service of arbitration award for the 
purpose of calculating time limits; procedural and other requirements 
for filing.

    (a) Who may file. Either party to arbitration under the provisions 
of chapter 71 of title 5 of the United States Code may file an 
exception to an arbitrator's award rendered pursuant to the 
arbitration.
    (b) Timeliness requirements--general. The time limit for filing an 
exception to an arbitration award is thirty (30) days after the date of 
service of the award. This thirty (30)-day time limit may not be 
extended or waived. In computing the thirty (30)-day period, the first 
day counted is the day after, not the day of, service of the 
arbitration award. Example: If an award is served on May 1, then May 2 
is counted as day 1, and May 31 is day 30; an exception filed on May 31 
would be timely, and an exception filed on June 1 would be untimely. In 
order to determine the date of service of the award, see the rules set 
forth in subsection (c) of this section, and for additional rules 
regarding computing the filing date, see 5 CFR 2429.21 and 2429.22.
    (c) Methods of service of arbitration award; determining date of 
service of arbitration award for purposes of calculating time limits 
for exceptions. If the parties have reached an agreement as to what is 
an appropriate method(s) of service of the arbitration award, then that 
agreement--whether expressed in a collective bargaining agreement or 
otherwise--is controlling for purposes of calculating the time limit 
for filing exceptions. If the parties have not reached such an 
agreement, then the arbitrator may use any commonly used method--
including, but not limited to, electronic mail (hereinafter ``e-
mail''), facsimile transmission (hereinafter ``fax''), regular mail, 
commercial delivery, or personal delivery--and the arbitrator's 
selected method is controlling for purposes of calculating the time 
limit for filing exceptions. The following rules apply to determine the 
date of service for purposes of calculating the time limits for filing 
exceptions, and assume that the method(s) of service discussed are 
either consistent with the parties' agreement or chosen by the 
arbitrator absent such an agreement:
    (1) If the award is served by regular mail, then the date of 
service is the postmark date or, if there is no legible postmark, then 
the date of the award; for awards served by regular mail, the excepting 
party will receive an additional five days for filing the exceptions 
under 5 CFR 2429.22.
    (2) If the award is served by commercial delivery, then the date of 
service is the date on which the award was deposited with the 
commercial delivery service or, if that date is not indicated, then the 
date of the award; for awards served by commercial delivery, the 
excepting party will receive an additional five days for filing the 
exceptions under 5 CFR 2429.22.
    (3) If the award is served by e-mail or fax, then the date of 
service is the date of transmission, and the excepting party will not 
receive an additional five days for filing the exceptions.
    (4) If the award is served by personal delivery, then the date of 
personal delivery is the date of service, and the excepting party will 
not receive an additional five days for filing the exceptions.
    (5) If the award is served by more than one method, then the first 
method of service is controlling when determining the date of service 
for purposes of calculating the time limits for filing exceptions. 
However, if the award is served by e-mail, fax, or personal delivery on 
one day, and by mail or commercial delivery on the same day, the 
excepting party will not receive an additional five days for filing the 
exceptions, even if the award was postmarked or deposited with the 
commercial delivery service before the e-mail or fax was transmitted.
    (d) Procedural and other requirements for filing. Exceptions must 
comply with the requirements set forth in 5 CFR 2429.24 (Place and 
method of filing; acknowledgment), 2429.25 (Number of copies and paper 
size), 2429.27 (Service; statement of service), and 2429.29 (Content of 
filings).


Sec.  2425.3  Oppositions--who may file; time limits for filing; 
procedural and other requirements for filing.

    (a) Who may file. A party to arbitration under the provisions of 
chapter 71 of title 5 of the United States Code may file an opposition 
to an exception that has been filed under Sec.  2425.2 of this part.
    (b) Timeliness requirements. Any opposition must be filed within 
thirty (30) days after the date the exception is served on the opposing 
party. For additional rules regarding computing the filing date, see 5 
CFR 2425.8, 2429.21 and 2429.22.
    (c) Procedural requirements. Oppositions must comply with the 
requirements set forth in 5 CFR 2429.24 (Place and method of filing; 
acknowledgment), 2429.25 (Number of copies and paper size), 2429.27 
(Service; statement of service), and 2429.29 (Content of filings).


Sec.  2425.4  Content and format of exceptions.

    (a) What is required. An exception must be dated, self-contained, 
and set forth in full:
    (1) A statement of the grounds on which review is requested, as 
discussed in Sec.  2425.6 of this part;
    (2) Arguments in support of the stated grounds, including specific 
references to the record, citations of authorities, and any other 
relevant documentation;
    (3) Legible copies of any documents referenced in the arguments 
discussed in subsection (a)(2) of this section, if those documents are 
not readily available to the Authority (for example, internal agency 
regulations or provisions of collective bargaining agreements);
    (4) Arguments in support of any request for an expedited, 
abbreviated decision within the meaning of Sec.  2425.7 of this part;
    (5) A legible copy of the award of the arbitrator; and
    (6) The arbitrator's name, mailing address, and, if available and 
authorized for use by the arbitrator, the arbitrator's e-mail address 
or facsimile number.
    (b) What is not required. Exceptions are not required to include 
copies of

[[Page 42291]]

documents that are readily accessible to the Authority, such as 
Authority decisions, decisions of Federal courts, current provisions of 
the United States Code, and current provisions of the Code of Federal 
Regulations.
    (c) What is prohibited. Consistent with 5 CFR 2429.5, an exception 
may not rely on any evidence, factual assertions, arguments (including 
affirmative defenses), requested remedies, or challenges to an awarded 
remedy that could have been, but were not, presented to the arbitrator.
    (d) Format. The exception may be filed on an optional form provided 
by the Authority, or in any other format that is consistent with 
subsections (a) and (c) of this section. A party's failure to use, or 
properly fill out, an Authority-provided form will not, by itself, 
provide a basis for dismissing an exception.


Sec.  2425.5  Content and format of opposition.

    If a party chooses to file an opposition, then the party should 
address any assertions from the exceptions that the opposing party 
disputes, including any assertions that any evidence, factual 
assertions, arguments (including affirmative defenses), requested 
remedies, or challenges to an awarded remedy were raised before the 
arbitrator. If the excepting party has requested an expedited, 
abbreviated decision under Sec.  2425.7 of this part, then the party 
filing the opposition should state whether it supports or opposes such 
a decision and provide supporting arguments. The party filing the 
opposition must provide copies of any documents upon which it relies 
unless those documents are readily accessible to the Authority (as 
discussed in Sec.  2425.4(b) of this part) or were provided with the 
exceptions. The opposition may be filed on an optional form provided by 
the Authority, or in any other format that is consistent with this 
section. A party's failure to use, or properly fill out, an Authority-
provided form will not, by itself, provide a basis for dismissing an 
opposition.


Sec.  2425.6  Grounds for review; potential dismissal or denial for 
failure to raise or support grounds.

    (a) The Authority will review an arbitrator's award to which an 
exception has been filed to determine whether 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.
    (b) If a party argues that an award is deficient on private-sector 
grounds under paragraph (a)(2) of this section, then the excepting 
party must explain how, under standards set forth in the decisional law 
of the Authority or Federal courts:
    (1) The arbitrator:
    (i) Exceeded his or her authority; or
    (ii) Was biased; or
    (iii) Denied the excepting party a fair hearing; or
    (2) The award:
    (i) Fails to draw its essence from the parties' collective 
bargaining agreement; or
    (ii) Is based on a nonfact; or
    (iii) Is incomplete, ambiguous, or contradictory as to make 
implementation of the award impossible; or
    (iv) Is contrary to public policy; or
    (v) Is deficient on the basis of a private-sector ground not listed 
in paragraphs (b)(1)(i) through (b)(2)(iv) of this section.
    (c) If a party argues that the award is deficient on a private-
sector ground raised under paragraph (b)(2)(v) of this section, the 
party must provide sufficient citation to legal authority that 
establishes the grounds upon which the party filed its exceptions.
    (d) The Authority does not have jurisdiction over an award relating 
to:
    (1) An action based on unacceptable performance covered under 5 
U.S.C. 4303;
    (2) A removal, suspension for more than fourteen (14) days, 
reduction in grade, reduction in pay, or furlough of thirty (30) days 
or less covered under 5 U.S.C. 7512; or
    (3) Matters similar to those covered under 5 U.S.C. 4303 and 5 
U.S.C. 7512 which arise under other personnel systems.
    (e) An exception may be subject to dismissal or denial if:
    (1) The excepting party fails to raise and support a ground as 
required in paragraphs (a) through (c) of this section, or otherwise 
fails to demonstrate a legally recognized basis for setting aside the 
award; or
    (2) The exception concerns an award described in paragraph (d) of 
this section.


Sec.  2425.7  Requests for expedited, abbreviated decisions in certain 
arbitration matters that do not involve unfair labor practices.

    Where an arbitration matter before the Authority does not involve 
allegations of unfair labor practices under 5 U.S.C. 7116, and the 
excepting party wishes to receive an expedited Authority decision, the 
excepting party may request that the Authority issue a decision that 
resolves the parties' arguments without a full explanation of the 
background, arbitration award, parties' arguments, and analysis of 
those arguments. In determining whether such an abbreviated decision is 
appropriate, the Authority will consider all of the circumstances of 
the case, including, but not limited to: whether any opposition filed 
under Sec.  2425.3 of this part objects to issuance of such a decision 
and, if so, the reasons for such an objection; and the case's 
complexity, potential for precedential value, and similarity to other, 
fully detailed decisions involving the same or similar issues. Even 
absent a request, the Authority may issue expedited, abbreviated 
decisions in appropriate cases.


Sec.  2425.8  Collaboration and Alternative Dispute Resolution Program.

    The parties may request assistance from the Collaboration and 
Alternative Dispute Resolution Program (CADR) to attempt to resolve the 
dispute before or after an opposition is filed. Upon request, and as 
agreed to by the parties, CADR representatives will attempt to assist 
the parties to resolve these disputes. If the parties have agreed to 
CADR assistance, and the time for filing an opposition has not expired, 
then the Authority will toll the time limit for filing an opposition 
until the CADR process is completed. Parties seeking information or 
assistance under this part may call or write the CADR Office at 1400 K 
Street, NW., Washington, DC 20424. A brief summary of CADR activities 
is available on the Internet at http://www.flra.gov.


Sec.  2425.9  Means of clarifying records or disputes.

    When required to clarify a record or when it would otherwise aid in 
disposition of the matter, the Authority, or its designated 
representative, may, as appropriate:
    (a) Direct the parties to provide specific documentary evidence, 
including the arbitration record as discussed in 5 CFR 2429.3;
    (b) Direct the parties to respond to requests for further 
information;
    (c) Meet with parties, either in person or via telephone or other 
electronic communications systems, to attempt to clarify the dispute or 
matters in the record;
    (d) Direct the parties to provide oral argument; or
    (e) Take any other appropriate action.


Sec.  2425.10  Authority decision.

    The Authority shall issue its decision and order taking such action 
and

[[Page 42292]]

making such recommendations concerning the award as it considers 
necessary, consistent with applicable laws, rules, or regulations.

PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS

0
2. The authority citation for part 2429 continues to read as follows:

    Authority: 5 U.S.C. 7134; Sec.  2429.18 also issued under 28 
U.S.C. 2122(a).


0
3. Section Sec.  2429.5 is revised to read as follows:


Sec.  2429.5  Matters not previously presented; official notice.

    The Authority will not consider any evidence, factual assertions, 
arguments (including affirmative defenses), requested remedies, or 
challenges to an awarded remedy that could have been, but were not, 
presented in the proceedings before the Regional Director, Hearing 
Officer, Administrative Law Judge, or arbitrator. The Authority may, 
however, take official notice of such matters as would be proper.

0
4. Section 2429.21(a) is revised to read as follows:


Sec.  2429.21  Computation of time for filing papers.

    (a) In computing any period of time prescribed by or allowed by 
this subchapter, except in agreement bar situations described in Sec.  
2422.12(c), (d), (e), and (f) of this subchapter, the day of the act, 
event, or default from or after which the designated period of time 
begins to run shall not be included. The last day of the period so 
computed is to be included unless it is a Saturday, Sunday, or a 
Federal legal holiday in which event the period shall run until the end 
of the next day which is neither a Saturday, Sunday, or a Federal legal 
holiday. Provided, however, in agreement bar situations described in 
Sec.  2422.12(c), (d), (e), and (f), if the 60th day prior to the 
expiration date of an agreement falls on a Saturday, Sunday, or a 
Federal legal holiday, a petition, to be timely, must be filed by the 
close of business on the last official workday preceding the 60th day. 
When the period of time prescribed or allowed is 7 days or less, 
intermediate Saturdays, Sundays, and Federal legal holidays shall be 
excluded from the computations.
* * * * *

0
5. Section 2429.22 is revised to read as follows:


Sec.  2429.22  Additional time after service by mail or commercial 
delivery.

    Except as to the filing of an application for review of a Regional 
Director's Decision and Order under Sec.  2422.31 of this subchapter, 
and subject to the rules set forth in Sec.  2425.2 of this subchapter, 
whenever a party has the right or is required to do some act pursuant 
to this subchapter within a prescribed period after service of a notice 
or other paper upon such party, and the notice or paper is served on 
such party by mail or commercial delivery, 5 days shall be added to the 
prescribed period: Provided, however, that 5 days shall not be added in 
any instance where an extension of time has been granted.

    Dated: July 14, 2010.
Carol Waller Pope,
Chairman.
[FR Doc. 2010-17648 Filed 7-20-10; 8:45 am]
BILLING CODE 6727-01-P