Independent Union of Pension v. FLRA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2020 Decided June 12, 2020

No. 19-1065

INDEPENDENT UNION OF PENSION EMPLOYEES FOR
DEMOCRACY AND JUSTICE,
PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT

On Petition for Review of an Order of the Federal Labor
Relations Authority

Eden Brown Gaines argued the cause and filed the briefs
for petitioner.

Rebecca J. Osborne, Deputy Solicitor, Federal Labor
Relations Authority, argued the cause and filed the brief for
respondent. Noah B. Peters, Attorney, entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.
 2
ROGERS, Circuit Judge: The Independent Union of
Pension Employees for Democracy and Justice (“Union”)
petitions for review of a Federal Labor Relations Authority
(“Authority”) order finding that it committed unfair labor
practices by attempting to dismantle the pool of arbitrators
selected by a predecessor union and thereby impeding access
to the grievance process. Because the Union has not
demonstrated that the Authority acted arbitrarily, capriciously,
or contrary to law, the court denies the petition for review.

I.

The Union of Pension Employees (“UPE”) was the
exclusive representative of bargaining unit employees of the
Pension Benefit Guaranty Corporation (“PBGC”) between
March 2009 and November 2011. During that period, UPE and
PBGC negotiated a collective bargaining agreement (“CBA”),
which went into effect on May 3, 2011. Article 2 of the CBA
governed arbitration procedures, with Section 3(B) describing
how arbitrators would be selected:

B. Arbitration Procedure:

1. Selection of the Pool – Within thirty (30) days
of implementation of this Agreement, the
Parties will exchange lists of the names of ten
(10) arbitrators they deem acceptable to serve as
arbitrator for disputes under this Agreement.
Up to five arbitrators common on both Parties’
lists will be informed of their selection to serve
as a member of a rotating panel. If there are not
five (5) names common to both lists, the Parties
will repeat the process until five (5) common
names have been identified. If a vacancy is
created, the Parties will repeat the selection
 3
process to fill the vacancy. Any fees or costs in
establishing the pool of arbitrators will be borne
by the Employer.

2. Invocation – A Party has seven (7) days, from
receipt of the Agency’s final grievance
decision, to invoke arbitration. Failure to
invoke arbitration within this period waives a
Party’s right to adjudicate the matter in
arbitration.

3. Selection of the Arbitrator – Once the pool has
been identified, as arbitrations are invoked,
arbitrators will be selected alphabetically by
their last name.

The UPE was not, however, the only union interested in
representing PBGC employees. As early as July 2010, the
Union had requested that an election be held so that employees
could vote on which union they preferred. A week after the
CBA went into effect, the Authority conducted the
representation election. The Union won. After denying the
UPE’s application for review, the Authority certified the Union
on November 16, 2011, as the exclusive representative of
PBGC bargaining unit employees, thereby displacing the UPE.

While the Authority was considering the UPE’s
application for review of the election, the UPE and the PBGC
selected the five arbitrators who would serve in the pool. On
September 20, 2011, they signed a Memorandum of Agreement
(“MOA”) naming the five arbitrators: James Conway, Charles
Feigenbaum, Allen Foster, Joshua Javits, and Seymour
Strongin.
 4
Over a year later, in December 2012, the Union invoked
arbitration over four pending grievances. The following
month, on January 18, 2013, Conway and Feigenbaum were
designated as the arbitrators for the first two grievances (they
were the first two arbitrators alphabetically). That same day,
the president of the Union sent an email to both Conway and
Feigenbaum noting that they had been selected by the prior
union and requesting that the two arbitrators share any
conversations they had with the UPE or the PBGC about their
selection and participate in an interview with the Union.
Conway and Feigenbaum both responded that they had not
communicated with the prior union and declined the Union’s
interview request. The Union replied with a letter dated
January 29 staking out its position:

As explained in our January 18 letter, as a new union at
PBGC and as a new party, the Independent Union of
Pension Employees for Democracy and Justice
(“IUPEDJ”) believes that it should have a role in the
selection of arbitrators. In fairness and as a matter of
professionalism, we respectfully suggest that you
voluntarily withdraw your participation in the arbitrator
pool.

Feigenbaum sent an email the following week resigning
from the arbitration pool, explaining that he did “not wish to
preside over cases where the non-selecting party does not wish
me to be the decision maker.”

Conway, however, refused the Union’s initial request to
step down. On February 21, the Union sent Conway an email
with the subject line “Request That You Reconsider
Resignation in Light of Ethics Violations.” In the email, the
Union alleged that Conway’s “refusal to resign violates the
very first rule at the top of” the applicable Code of Professional
 5
Responsibility, namely, that an arbitrator be selected by mutual
agreement of the parties. Because the Union had not
participated in or agreed to Conway’s selection, it
“demand[ed]” his resignation due to his “outright violation” of
the ethics rule and his “unprofessional” behavior. Conway did
not resign; to the contrary, he subsequently issued an award
against the Union in the case he had been assigned to arbitrate.
The Authority upheld that award over the Union’s objections,
concluding that the Union was bound by the arbitration
provisions of the CBA and that Conway’s appointment to the
arbitrator pool was valid. See Indep. Union of Pension Emps.
for Democracy & Justice, 68 F.L.R.A. 999, 1003–08 (2015)
(“IUPEDJ 2015”), recons. denied, 69 F.L.R.A. 158 (2016).
The Union did not petition this court for review. Following a
dispute over Conway’s fees, and Conway filing a lawsuit in
D.C. Superior Court, the Union and Conway entered into a
settlement agreement in October 2015 pursuant to which the
Union paid his fees and Conway resigned from the pool of
arbitrators.

Problems arose with the other arbitrators, too. On
February 14, the Union emailed Foster, the next arbitrator on
the list, to tell him that the Union had not participated in his
selection and thus it believed he should not hear the assigned
grievance. Strongin served as an arbitrator but reported
difficulty collecting his arbitration fees from the Union and
ultimately resigned from the arbitration pool in December
2013. Javits was selected to arbitrate a grievance in May 2014,
but the Union told Javits that it had not participated in his
selection. Seven months later, the Union sent Javits an email
accusing him of violating the “paramount rule” of the ethics
code that the arbitrator be selected by mutual agreement of the
parties and restated its position that the Union had not mutually
agreed to his selection.
 6
The PBGC filed its first unfair labor practice charge in
February 2013 based on the Union’s communications with
arbitrators Conway and Feigenbaum. It filed a second unfair
labor practice charge in January 2015 after arbitrators reported
difficulty collecting fees from the Union and the Union accused
Javits of ethics violations. The Authority’s general counsel
later issued a complaint on each charge, alleging that the Union
violated 5 U.S.C. § 7116(b)(1) and (5), which make it an unfair
labor practice for a union “to interfere with, restrain, or coerce
any employee in the exercise by the employee of any right
under this chapter” and “to refuse to consult or negotiate in
good faith with an agency as required by this chapter,”
respectively.

The administrative law judge (“ALJ”) consolidated the
two complaints and, over the Union’s opposition,
recommended granting the general counsel’s motion for
summary judgment. See Indep. Union of Pension Emps. for
Democracy & Justice, 70 F.L.R.A. No. 164, OALJ 17-10, 2017
WL 955570 (Feb. 28, 2017) (“ALJ Decision”). The ALJ relied
on IUPEDJ 2015, in which the Authority had determined that
“the grievance and arbitration procedures under the CBA
negotiated by the previous exclusive representative bind the
Union.” Id. at *19 (quoting IUPEDJ 2015, 68 F.L.R.A. at
1004). The ALJ therefore ruled that the Union committed an
unfair labor practice by “denying the binding nature of Article
2, Section 3(B)(3) of the CBA and the arbitration panel
properly established by the MOA, and by actively attempting
to dismantle the arbitration panel set forth in the MOA through
active solicitation of resignations from the duly appointed
Arbitrators Conway and Feigenbaum.” Id. at *22. Further, the
ALJ ruled that the Union committed an unfair labor practice
when it refused to accept Javits as an arbitrator and made
unfounded ethics code accusations against him. Id. at *24. But
the ALJ ruled that failing to comply with Conway’s scheduling
 7
orders and refusing to pay arbitrators were not separate unfair
labor practices. Id. at *22, *24.

The Authority largely adopted the ALJ’s recommended
decision and order except for, as relevant to this petition, the
remedy. See Indep. Union of Pension Emps. for Democracy &
Justice, 70 F.L.R.A. 820, 820 (2018) (“Order”). The Authority
found that the Union committed unfair labor practices by
denying bargaining unit employees access to the CBA’s
grievance procedures, thereby violating 5 U.S.C. § 7116(b)(1)
and (5). Id. at 825. It rejected the Union’s defense that its
statements were protected by 5 U.S.C. § 7116(e). Id. at 826.
With the goal of restoring the status quo ante, the Authority
considered post-charge events and crafted a non-traditional
remedy, ordering the Union to offer Conway and Feigenbaum
an opportunity to rejoin the arbitration panel. Id. at 826–28.
The Authority denied the Union’s motion for reconsideration
on the ground that it did not present any extraordinary
circumstances warranting reconsideration but instead
contained arguments already considered and rejected,
mischaracterized the underlying decision, and relied on dicta
from the Authority’s initial decision to support one of its
arguments. Indep. Union of Pension Emps. for Democracy &
Justice, 71 F.L.R.A. 60, 60 (2019).

II.

The Union petitions for review, 5 U.S.C. § 7123(a), and
the court reviews the Authority’s orders in accordance with the
standard set forth in the Administrative Procedure Act, see id.
§ 7123(c), so the court will uphold the Authority’s decisions
unless they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” id. § 706(2)(A). See
also Nat’l Treasury Emps. Union v. FLRA, 754 F.3d 1031,
1041 (D.C. Cir. 2014). The Authority’s findings of fact are
 8
“conclusive” so long as they are “supported by substantial
evidence on the record considered as a whole.” Id. § 7123(c).
Absent extraordinary circumstances, the court cannot consider
any “objection that has not been urged before the Authority.”
Id. The “Authority is entitled to considerable deference when
it exercises its special function of applying the general
provisions of the [Civil Service Reform] Act to the
complexities of federal labor relations.” Bureau of Alcohol,
Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 (1983) (internal
quotation omitted). Thus, the role for judicial review is
“narrow.” Am. Fed’n of Gov’t Emps., Local 2343 v. FLRA, 144
F.3d 85, 88 (D.C. Cir. 1998) (quoting Overseas Educ. Ass’n,
Inc. v. FLRA, 858 F.2d 769, 771 (D.C. Cir. 1988)).

The Union raises five principal issues in its petition, all of
which the court finds unavailing.

A.

First, the Authority’s conclusion that the Union committed
unfair labor practices was not arbitrary and capricious. To the
contrary, the Authority followed its own precedent —
including IUPEDJ 2015, in which it rejected the Union’s
objections to the arbitration procedures — when it determined
that the Union’s outreach to the two arbitrators amounted to
unfair labor practices.

The Civil Service Reform Act makes it an unfair labor
practice for a labor organization “(1) to interfere with, restrain,
or coerce any employee in the exercise by the employee of any
right under this chapter” or “(5) to refuse to consult or negotiate
in good faith with an agency as required by this chapter.” 5
U.S.C. § 7116(b). The Authority has reasoned that “the
purposes and policies of the Statute are best effectuated by a
requirement that the existing personnel policies and practices
 9
and matters affecting working conditions—including
negotiated grievance and arbitration procedures—must
continue as established upon the expiration of a negotiated
agreement, absent an express agreement by the parties to the
contrary or unless modified in a manner consistent with the
Statute.” Dep’t of the Air Force 35th Combat Support Grp., 4
F.L.R.A. 22, 23 (1980). And “where a party repudiates a
memorandum of understanding or an agreement in its entirety,
such conduct is violative of the Statute.” Am. Fed’n of Gov’t
Emps., 21 F.L.R.A. 986, 988 (1986). More recently, in its
IUPEDJ 2015 order, the Authority explained:

It is well established that when a negotiated agreement
expires, personnel policies, practices, and matters
affecting working conditions continue to the maximum
extent possible absent either an express agreement to
the contrary or the modification of those conditions of
employment in a manner consistent with the Statute.
These continuing policies, practices, and matters
encompass negotiated grievance and arbitration
procedures. And negotiated grievance and arbitration
procedures include the selection of an arbitrator.

Furthermore, such provisions survive and remain in full
effect not only following contract expiration, but even
following the decertification of one exclusive
representative and the installation of a new one. . . .
Consequently, considering the pragmatic, tangible
benefits that inure to the parties’ collective-bargaining
relationship and the federal workforce flowing from
this precedent, we conclude that the grievance and
arbitration procedures under the CBA negotiated by the
previous exclusive representative bind the Union.

IUPEDJ 2015, 68 F.L.R.A. at 1004 (footnotes omitted).
 10

The Union acknowledges that a collective bargaining
agreement negotiated by a predecessor union remains effective
until a new one is implemented. Therefore, it maintains more
narrowly that it was not required to accede to the list of
arbitrators selected by the UPE and the PBGC because it was
not a party to the MOA. According to the Union, the “lack of
mutuality in the selection of the arbitrators” rendered the list
invalid, especially because the arbitrators were selected after
the Union had won the representation election (but before it
was certified). Pet’r Br. at 13, 15.

The Union’s position that it was not required to accept the
agreed-upon pool of arbitrators is foreclosed by the Authority’s
precedent. The Union does not cite a single case to support its
position, instead relying only on the text of the CBA, which
states that the parties select the arbitrators. Here, the parties
selected the five arbitrators, although they did so before the
Union became the exclusive bargaining representative and
hence a party to the agreement. The Authority’s precedent
makes clear, however, that the Union was bound by the prior
union’s selection of the arbitrators when it became a party to
the CBA. See IUPEDJ 2015, 68 F.L.R.A. at 1004. Thus, the
Authority reasonably found that the Union’s refusal to abide by
the negotiated arbitration procedures and its attempts to
dismantle the arbitrator pool interfered with employees’ access
to grievance procedures. See Am. Fed’n of Gov’t Emps., Local
2782, 21 F.L.R.A. 339, 350–51 (1986).

Further, contrary to the Union’s assertion, the Authority
did not fail to explain “how the Union’s actions constituted a
refusal to consult or negotiate in good faith with an agency
under § 7116(b)(5).” Pet’r Br. at 13–14. The Authority
reasoned that the Union refused to negotiate in good faith
because it “unilaterally ceased to give effect to the CBA.”
 11
Order, 70 F.L.R.A. at 825. As support for this interpretation of
the statute, the Authority cited a prior decision in which it had
found that when an agency unilaterally ceases to give effect to
an agreement between the agency and the prior exclusive
representative, it violates § 7116(a)(5), the parallel provision in
the Act that applies to agencies, and thus when a union does so,
it violates § 7116(b)(5). Id. at 842 (citing Dep’t of Health &
Human Servs. Soc. Sec. Admin., 44 F.L.R.A. 870, 881 (1992)).
This explanation was adequate.

The Union also argues that any challenge to its attempts to
exclude arbitrators from the pool “would only be properly
pursued as a grievance concerning the proper interpretation of
the language of the CBA, rather than a ULP.” Pet’r Br. at 15–
16. But the Union provides no support for this argument other
than pointing to the existence of grievance procedures. In view
of Authority precedent on what constitutes an unfair labor
practice and the public interest in ensuring access to grievance
procedures, the Authority’s orders were not improper.

In short, the Union has not provided any basis for the court
to conclude that the Authority was arbitrary and capricious in
finding that the Union committed unfair labor practices by
refusing to use the arbitrators selected by the predecessor
union.

B.

Second, the Authority did not act contrary to law when it
determined that the Union acted outside of the statutory
protection for the expression of personal views.

The Civil Service Reform Act protects certain types of
statements:
 12
The expression of any personal view, argument,
opinion or the making of any statement which—

(1) publicizes the fact of a representational
election and encourages employees to exercise
their right to vote in such election,
(2) corrects the record with respect to any false
or misleading statement made by any person, or
(3) informs employees of the Government’s
policy relating to labor-management relations
and representation,

shall not, if the expression contains no threat of reprisal
or force or promise of benefit or was not made under
coercive conditions, (A) constitute an unfair labor
practice under any provision of this chapter, or (B)
constitute grounds for the setting aside of any election
conducted under any provisions of this chapter.

5 U.S.C. § 7116(e).

The Union contends that its communications “were neither
coercive nor threatening in nature,” and that the Authority
committed clear error by characterizing them as such. Pet’r Br.
at 16–17. On appeal, the Authority responds that the statute
does not protect statements made by a union in its role as the
exclusive representative, that the statements contained threats
of reprisal, and that the statements were made under coercive
conditions.

The Authority’s third argument, which both the Authority
and ALJ relied upon in their respective proceedings, is
sufficient to deny the petition, and therefore the court need
neither analyze the Authority’s other theories nor construe the
precise contours of the statutory exemption. The Authority
 13
applies an objective test to determine whether coercive
conditions existed: it must assess “the entire factual context [to]
examine not whether the [union] intended, or the [person]
perceived, any coercive effect, but whether the [union’s]
actions would tend to coerce a reasonable [person].” Army &
Air Force Exch. Serv. (AAFES), Ft. Carson, 9 F.L.R.A. 620,
626–27 (1982); see also Wyman-Gordon Co. v. NLRB, 654
F.2d 134, 145 (1st Cir. 1981). Here, the ALJ found that the
Union’s “repeated refusals to be bound by the MOA, and [its]
attempts to dismantle a panel properly established pursuant to
the inherited CBA by asking, encouraging and even demanding
arbitrators to resign under threat of ethics allegations” were
made under coercive conditions. ALJ Decision, 2017 WL
955570, at *26. The Authority affirmed that finding. Order,
70 F.L.R.A. at 826. Given the ALJ’s prior findings that “the
ethical code cited by the Union d[id] not support [its] claim,”
and that the Union “manufactur[ed] spurious ethical
complaints to bully and intimidate,” ALJ Decision, 2017 WL
955570, at *21, *26, the finding of coercive conditions was
supported by substantial evidence on the record considered as
a whole and thus the Authority’s determinations were not,
despite the Union’s argument that the court should second-
guess them, contrary to law.

C.

Third, the Union has not demonstrated that its First
Amendment rights were violated, seeing as it failed to identify
a public concern implicated by its speech.

In Connick v. Myers, 461 U.S. 138 (1983), the Supreme
Court held that if a government employee’s speech “cannot be
fairly characterized as constituting speech on a matter of public
concern, it is unnecessary for [a court] to scrutinize the reasons
for” the employee’s termination. Id. at 146. This court has
 14
explained that Connick means that “only if a court finds that
the public employee’s speech meets this threshold requirement
should the court go on to balance the employee’s interests in
free expression against the government’s interest in curtailing
the expression.” Am. Postal Workers Union v. U.S. Postal
Serv., 830 F.2d 294, 300 (D.C. Cir. 1987). The Authority has
applied the Connick standard to the speech of public employee
unions. See IUPEDJ 2015, 68 F.L.R.A. at 1011–12 (citing
Booth v. Pasco Cty., 757 F.3d 1198, 1214 (11th Cir. 2014)).

The ALJ found the Union’s First Amendment argument
meritless because it “has not even cited a public concern
involved in its resignation requests, and none is apparent.” ALJ
Decision, 2017 WL 955570, at *27. Likewise, the Authority
“reject[ed] the Union’s First Amendment claims . . . as the
Union does not argue that its speech was a matter of public
concern.” Order, 70 F.L.R.A. at 826 n.70.

Absent extraordinary circumstances, this court does not
consider a party’s objections not raised before the Authority.
See 5 U.S.C. § 7123(c); EEOC v. FLRA, 476 U.S. 19, 23
(1986). In briefing before the ALJ and the Authority, the
Union repeatedly characterized its statements as beliefs,
opinions, or related to the grievance process, but never
identified a public concern, even after the ALJ faulted the
Union for failing to do so. Even assuming that the Union were
able to overcome the barrier imposed by § 7123(c), it has done
little to bolster its public concern argument on appeal, except
to posit that “Union activity or union related speech is generally
considered to be a matter of public concern” and that its
statements about the grievance process are protected speech.
See Pet’r Br. at 18–19. For support, the Union relies primarily
on Janus v. American Federation of State, County, &
Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), in
which the Supreme Court observed that “union speech in the
 15
handling of grievances may be of substantial public importance
and may be directed at the public square.” Id. at 2476
(quotation omitted and emphasis added). But unlike in Janus,
where the union had sought to compel the state to appropriate
public funds for increased wages, the Union here has not
connected its speech to matters of public concern except to
gesture broadly at the importance of the grievance process.
Consequently, because the Union (1) failed before the
Authority to identify a public concern implicated by its
statements, (2) does not argue that any extraordinary
circumstances excuse its failure, and (3) cannot articulate a
public concern on appeal, its First Amendment argument is
meritless.

D.

Fourth, the Authority’s nontraditional remedy did not
exceed its statutory authority because it was an appropriate
exercise of its power to carry out the purposes of the Civil
Service Reform Act by restoring the status quo ante.

The Act “exude[s] indications of a broad congressional
delegation of discretion to the FLRA to fashion appropriate
remedies for an unfair labor practice.” Nat’l Treasury Emps.
Union v. FLRA, 910 F.2d 964, 967 (D.C. Cir. 1990) (en banc)
(“NTEU”). Upon finding that an unfair labor practice occurred,
Congress vested the Authority with power to issue orders to the
agency or labor organization

(A) to cease and desist from any such unfair labor
practice in which the agency or labor organization is
engaged;
(B) requiring the parties to renegotiate a collective
bargaining agreement in accordance with the order of
 16
the Authority and requiring that the agreement, as
amended, be given retroactive effect;
(C) requiring reinstatement of an employee with
backpay in accordance with section 5596 of this title;
or
(D) including any combination of the actions described
in subparagraphs (A) through (C) of this paragraph or
such other action as will carry out the purpose of this
chapter.

5 U.S.C. § 7118(a)(7). “Subparagraph (D) underscores
Congress’ intent, that the FLRA be granted discretion to choose
what it deems the appropriate responses to an unfair labor
practice.” NTEU, 910 F.2d at 967. In turn, the Authority has
explained that it “believe[s] that remedies for unfair labor
practices under the Statute should, like those under the NLRA,
be ‘designed to recreate the conditions and relationships that
would have been had there been no unfair labor practice.’”
U.S. Dep’t of Justice Bureau of Prisons, Safford, 35 F.L.R.A.
431, 444–45 (1990) (quoting Local 60, United Bhd. of
Carpenters & Joiners v. NLRB, 365 U.S. 651, 657 (1961)
(Harlan, J., concurring)). To that end, “assuming that there
exist no legal or public policy objections to a proposed,
nontraditional remedy, the questions are whether the remedy is
reasonably necessary and would be effective to recreate the
conditions and relationships with which the unfair labor
practice interfered, as well as to effectuate the policies of the
Statute, including the deterrence of future violative conduct.”
F.E. Warren Air Force Base Cheyenne, 52 F.L.R.A. 149, 161
(1996) (internal quotation omitted).

To begin, the Union’s first argument — that it should not
be ordered to invite Feigenbaum back to the panel because it
did not commit an unfair labor practice with respect to him —
 17
is vitiated by the court’s denial of its petition for review of the
underlying unfair labor practice finding.

The Union’s legal and public policy objections to the
remedy fare no better. First, the Union argues that because
Conway resigned after charges were filed, the nontraditional
remedy of offering reinstatement violated the six-month
limitations period imposed by 5 U.S.C. § 7118(a)(4). But that
provision limits when a complaint may be filed, not the
baseline for restoring the status quo prior to the unfair labor
practices. Second, the Union contends that the remedy
interferes with it and Conway’s “rights to freely contract”
because the remedy requires them to “repudiate a legally
binding, voluntary settlement agreement.” Pet’r Br. at 20–21.
Neither the Authority nor the Agency, however, were parties to
the fee dispute settlement agreement. And it would unduly
frustrate the purposes of the Act if two parties were able to use
a private agreement to circumvent the Authority’s statutory
power to remedy unfair labor practices and vindicate the public
interest. Cf. Oil, Chem. & Atomic Workers Int’l Union v.
NLRB, 806 F.2d 269, 272 (D.C. Cir. 1986). Therefore, the
Authority’s order requiring the Union to invite Conway back
into the arbitration pool does not present any legal or public
policy objections but rather effectuates the policies embodied
in the Act by attempting to restore the parties to the status quo
ante.

E.

Fifth, and finally, the court denies the Union’s application
for leave to adduce additional evidence because the Union has
not established that the evidence is material or that there were
reasonable grounds for the Union’s failure to adduce it earlier.
 18
“If any person applies to the court for leave to adduce
additional evidence and shows to the satisfaction of the court
that the additional evidence is material and that there were
reasonable grounds for the failure to adduce the evidence in the
hearing before the Authority, or its designee, the court may
order the additional evidence to be taken before the Authority,
or its designee, and to be made a part of the record.” 5 U.S.C.
§ 7123(c).

The Union contends that the Authority should be required
to consider the fact that Conway moved to Minnesota from the
District of Columbia because neither the prior union nor the
Agency intended to incur travel costs when they selected him
as an arbitrator. With respect to materiality, although the
Union attaches an email showing that proximity to Washington
was a factor in selecting the arbitrators, it has not established
that Conway’s move would have affected his continued
inclusion in the pool. Thus, the Union has not met its burden
to show that this information is material to the remedy, which
sought to restore the status quo ante. Further, the Union has
barely argued that there was a reasonable ground for its failure
to present this evidence earlier, and none is apparent. The
Union received an invoice dated July 2, 2018, from Conway’s
Minnesota address and admits that it learned of his move at an
unspecified date in “late 2018.” But the Union waited until
“early 2019” to research Conway’s move and did not seek to
supplement the record until after the Authority denied its
motion for reconsideration. This lack of haste belies the
Union’s contention that its failure to adduce this evidence
earlier was somehow justified.

Accordingly, because the Union has not demonstrated that
the Authority’s order was arbitrary, capricious, or otherwise
contrary to law, the court denies its petition for review and its
application for leave to adduce additional evidence.