American Federation of Government Employees, Local 1815 (Union) and United States Department of the Army, U.S. Army Aviation Center of Excellence, Fort Rucker, Alabama (Agency) 



65 FLRA No. 89  
LOCAL 1815
January 20, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I.     Statement of the Case
        This matter is before the Authority on an exception to an award of Arbitrator William H. Mills filed by the Union under § 7122(a) of the Federal Service Labor‑Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Agency filed an opposition to the Union’s exception.[1] 
        The Arbitrator found that the grievance was substantively non-arbitrable. For the following reasons, we deny the Union’s exception.
II.    Background and Arbitrator’s Award
        The Agency requires employees to undergo periodic medical examinations. Award at 1-2. The Union filed a grievance on behalf of all bargaining unit employees requesting that the parties enter into a memorandum of agreement or memorandum of understanding to clarify whether the Agency or employees bore the responsibility for paying these medical examinations when performed by private physicians or medical facilities. Id. The grievance was unresolved and submitted to arbitration. Id. at 2. 
        Prior to the arbitration hearing, the Agency challenged the substantive arbitrability of the grievance, and the parties agreed that the Arbitrator should resolve the arbitrability issue before addressing the merits of the case. Id. Accordingly, the Arbitrator framed the threshold issue as: “Is the present dispute arbitrable?” Id. at 1. 
        As an initial matter, the Arbitrator noted that “[i]t seems inescapable that the Union’s grievance is seeking to compel midterm bargaining.” Id. at 14. Relying on the Supreme Court’s decision in National Federation of Federal Employees, Local 1309 v. Department of the Interior, 526 U.S. 86 (1999) (NFFE), he further found that the Authority has “the sole power to determine ‘whether, when, and where midterm bargaining is required[,]’” and, therefore, “an arbitrator obviously has no authority to compel it.” Award at 16-17. Accordingly, the Arbitrator dismissed the grievance as non-arbitrable. Id. at 17.
III. Positions of the Parties
        A.    Union’s Exception
        The Union contends that the Arbitrator “appears to misunderstand that the matter grieved was simply a ‘follow the prevailing law’ [g]rievance issue . . . and [that] this matter was never a request to change or amend, add to, or delete from [the parties’ agreement], . . . which is the predicate goal and intent of mid-term bargaining[.]” Exception at 1-2. The Union further argues that the “[i]nterpretation of pre-existing regulation[s] or issues between the two parties to the [parties’ agreement] is not an attempt to initiate formal mid-term bargaining[.]” Id. at 2.
        B.    Agency’s Opposition
        The Agency asserts that the Union’s exception does not “address with specificity . . . how the award violates [the] law or is otherwise deficient on other grounds[.]” Opp’n at 2. It also asserts that the Arbitrator made a procedural arbitrability determination, and that the Union’s exception challenging that determination does not provide a basis for finding the award deficient. Id. at 3.

IV.    Preliminary Issue
        Although the Authority’s Regulations do not provide for the filing of supplemental submissions, § 2429.26 of the Authority’s Regulations provides that the Authority may, in its discretion, grant leave to file “other documents” as deemed appropriate. See, e.g., Cong. Research Employees Ass’n, IFPTE, Local 75 The Authority generally will not consider submissions filed without requesting leave or permission. See, e.g,NAIL, Local 6, 63 FLRA 232, 232 n.1 (2009) (NAIL). In addition, where the Authority does not consider a submission, it also generally does not consider filings that respond to that submission. See U.S. Dep’t of the Army, Corps of Eng’rs, Portland Dist., 62 FLRA 97, 9