The Union argues that the Arbitrator’s award is deficient on multiple grounds. First, the Union alleges that the award is based on a nonfact in two instances: (1) the Arbitrator “erroneously framed the issue, based on a nonfact”;^[1] and (2) the Arbitrator incorrectly based his determination that the Union did not meet its burden of proof on a nonfact. Because these allegations fail to demonstrate that the award is deficient, we deny these exceptions.

 

                Second, the Union raises two contrary-to-law exceptions: (1) the award misinterprets the Agency’s management rights; and (2) the Arbitrator’s ruling concerning the availability of administrative leave was contrary to a government-wide regulation.^[2] Because these contrary-to-law exceptions are based on dicta, we deny these exceptions.

 

 

                The grievances concern employees of the Naval Air Station-Joint Reserve Base (NAS/JRB) in New Orleans, Louisiana. In the events leading up to the grievances, the Agency cancelled its practice of granting administrative leave on Mardi Gras. The Union alleged that the grant of administrative leave on Mardi Gras existed as a past practice and, thus, that the Agency was required to bargain before it made any changes to that practice; the Agency maintained that the matter was outside its duty to bargain. The matter eventually went to the Federal Service Impasses Panel (FSIP) for resolution.^[3] 

 

FSIP asserted jurisdiction over the matter due to “uncontroverted evidence during the initial investigation that at least some bargaining[-]unit employees had been told by their supervisors that the activities[] where they worked would be closed on Mardi Gras . . . and that they would be required to take annual leave.”^[4] Additionally, due to the uncontroverted evidence, FSIP took the “unusual step” in its procedural-determination letter to order the Agency “to grant administrative leave to all bargaining[-]unit employees, if any, who were required to take annual leave by their supervisors because they were informed that the activities where they work [would] be closed” on Mardi Gras.^[5] 

 

 

                Sometime later, the Union filed grievances alleging that the Agency “had failed and refused to restore the annual leave of appropriated[-]fund and non‑appropriated[‑]fund employees for Mardi Gras” in compliance with the FSIP order.^[7] The matter was unresolved, and the parties submitted it to arbitration. Because the parties were unable to reach agreement on the issue, the Arbitrator framed the issue as “[w]hether the Agency closed the NAS/JRB on [Mardi Gras] and thereby forced bargaining[-]unit employees to take annual leave because of said closures.”^[8]

 

                Before the Arbitrator, the Union argued that, “[b]y breaching a past practice extending over thirty . . . years, the [A]gency unilaterally changed a term and condition of employment.”^[9] Although the Arbitrator discussed the Union’s past-practice argument, he recognized that the Union failed to raise “past practice as an issue during the grievance . . . process”^[10] and that “the only issue before the Arbitrator is whether the Agency closed the NAS/JRB and thereby forced bargaining[-]unit employees to take annual leave because of said closures.”^[11] The Arbitrator decided that “the Union did not meet its burden of proof to demonstrate that the Agency closed the NAS/JRB on [Mardi Gras]” and that “the grievance[s] lack[ed] demonstrable merit.”^[12] Accordingly, he denied the grievances.

 

 

 

 

                The Union argues that the Arbitrator “erred as a matter of law in failing to determine” that the past practice of granting administrative leave for Mardi Gras “had been incorporated into the parties’ collective[‑]bargaining agreement,” dated May 2012.^[14] In support, the Union contends that a past practice establishing a condition of employment becomes incorporated into the parties’ agreement as a matter of law.^[15] While the Union argued below that the past practice should continue, there is no indication in the record that the Union argued that, as a matter of law, this past practice was incorporated into the agreement. Although an argument could have been presented to the Arbitrator that the past practice legally became part of the parties’ agreement, the Union brought no such argument to the attention of the Arbitrator. Because the Union did not make this argument before the Arbitrator, but could have done so, it may not do so now.^[16] We therefore dismiss this exception as barred by §§ 2425.4(c) and 2429.5.

                The Agency contends that § 2429.5 bars another contrary-to-law exception. In his award, the Arbitrator ruled that granting administrative leave would impermissibly “establish an additional [federal] holiday for employees” in violation of 5 U.S.C § 6103.^[17] In its exceptions, the Union argues that the Arbitrator erred as a matter of law because a government-wide regulation grants agencies discretion to grant administrative leave.^[18] The Agency argues that because the Union failed to raise this argument below, it cannot do so now. However, the Arbitrator addressed 5 U.S.C. § 6103 and the establishment of a federal holiday sua sponte in his award. Having no reason to raise this contrary-to-law argument below, the Union may do so now, and § 2429.5 does not bar this exception.^[19]

 

The Authority’s Regulations enumerate the grounds upon which the Authority will review awards.^[20] In addition, the Regulations provide that if exceptions argue that an arbitration award is deficient based on private-sector grounds not currently recognized by the Authority, then the excepting party “must provide sufficient citation to legal authority that establishes the grounds upon which the party filed its exceptions.”^[21] Furthermore, § 2425.6(e)(1) of the Regulations provides that an exception “may be subject to dismissal or denial if . . . [t]he excepting party fails to raise and support” the grounds listed in § 2425.6(a)-(c), or “otherwise fails to demonstrate a legally recognized basis for setting aside the award.”^[22] Thus, an exception that does not raise a recognized ground is subject to dismissal.^[23]

 

The Union argues that the Arbitrator erred when he found “that granting [administrative] leave for Mardi Gras . . . is contrary to the [n]egotiated [a]greement.”^[24] Specifically, the Union argues that the Arbitrator “fail[ed] to acknowledge the limits on management’s rights agreed to in” the parties’ agreement.^[25] This argument does not raise a ground for review currently recognized by the Authority, and the Union does not cite any legal authority that supports a conclusion that the argument raises a private-sector ground not currently recognized by the Authority.^[26] As such, we dismiss this exception.^[27]

 

 

                The Union argues that the Arbitrator erroneously based the award on two nonfacts. To establish that an award is based on a nonfact, the excepting party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[28] However, the Authority will not find an award deficient on the basis of an arbitrator’s determination of any factual matter that the parties disputed at arbitration.^[29] The Authority has long held that disagreement with an arbitrator's evaluation of evidence and testimony, including the determination of the weight to be given to such evidence, provides no basis for finding the award deficient as a nonfact.^[30]

 

First, the Union argues that the Arbitrator “erroneously framed the issue, based on a nonfact, as whether the Navy base, NAS/JRB, was closed by the [A]gency on [Mardi Gras],” rather than whether “particular agency work facilities were closed on Mardi Gras, which required employees to take annual leave.”^[31] Specifically, the Union alleges that the Arbitrator made a “significant factual error” in his interpretation of the FSIP order and the grievance.^[32] However, the Arbitrator’s interpretation of the FSIP order is not a “fact” that can be challenged on nonfact grounds. Additionally, in challenging the Arbitrator’s interpretation of the grievance, the Union contests the Arbitrator’s interpretation of the scope of the issue – i.e., whether the issue involves work facilities on the base or the base as a whole.^[33] However, an arbitrator’s interpretation of the scope of a grievance does not constitute a matter that can be challenged as a nonfact.^[34] As such, we find that this exception fails to establish that the award is based on a nonfact.

 

                Second, the Union argues that the Arbitrator’s finding that “the Union did not meet its burden of proof to demonstrate that the Agency closed the NAS/JRB on [Mardi Gras]” is based on nonfact as it is contrary to the Union’s evidence.^[35] The Union points to uncontested testimony that stated that various facilities were not operational on Mardi Gras. However, even if credited, this testimony does not contradict the Arbitrator’s finding that the Agency did not close NAS/JRB as a whole and “force[] bargaining[-]unit employees to take annual leave because of said closure[].”^[36] Therefore, we find that the Union has failed to demonstrate that this finding is based on a nonfact.

 

 

The Union also claims that the award is contrary to law and that the Arbitrator exceeded his authority. As to the contrary-to-law exceptions, the Union alleges that the Arbitrator erred as a matter of law in two respects: (1) “in stating that granting leave for Mardi Gras . . . conflicts with management rights”;^[37] and (2) “concerning the availability of administrative leave.”^[38] As to the Arbitrator exceeding his authority, the Union contends that “the Arbitrator exceeded his authority when he reviewed proposals . . . which were before the FSIP, not the Arbitrator.”^[39] 

 

These exceptions all allege errors in the Arbitrator’s analysis and evaluation of the Union’s argument “concern[ing] whether a long-standing ‘past practice’ [of granting administrative leave for Mardi Gras] could be unilaterally terminated by the Agency” or if the parties had to negotiate over the issue.^[40] However, as part of his discussion of this issue, the Arbitrator determined that the “issue before [him was] narrowly and precisely defined by the controlling order by FSIP”^[41] and that the “negotiation of administrative leave for bargaining[-]unit employees on Mardi Gras” was not an “element[] of the captioned matter and must be excluded from arbitral consideration.”^[42] Where, as here, an arbitrator finds a matter not arbitrable, any comments he or she makes concerning the merits of that matter are dicta, and cannot form the basis for finding an award deficient.^[43] Because these remaining exceptions challenge dicta, we deny them.

 

 

 

 

 

 

 

 

 

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