                                                      [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT                  FILED
                    ________________________
                                                   U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                            No. 03-15467                  July 07, 2005
                      ________________________        THOMAS K. KAHN
                                                            CLERK
                  Agency Docket No. 59 FLRA NO. 40

NATIONAL ASSOCIATION OF AIR TRAFFIC
SPECIALISTS,

                                                                   Petitioner,
                                                            Cross-Respondent,

                                 versus

FEDERAL LABOR RELATIONS AUTHORITY,

                                                                 Respondent,
                                                             Cross-Petitioner.

                      ________________________

                Petition for Review and Cross-Application
                 for Enforcement of the Decision of the
                    Federal Labor Relations Authority
                      _________________________

                             (July 7, 2005)

Before ANDERSON, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      We initially issued an unpublished opinion in this case on December 14,

2004. See National Association of Air Traffic Specialists v. Federal Labor

Relations Authority, No. 03-15467 (11th Cir. Dec. 14, 2005). The mandate in that

case issued as well. The previous opinion inadvertently failed to expressly rule on

the Federal Labor Relations Authority’s (“Authority”) cross-application for

enforcement of its order. On June 21, 2005, the Authority filed a motion seeking a

ruling on its cross-application. With this opinion, we recall the mandate and vacate

our prior opinion.

      We recognize some force in The National Association of Air Traffic

Specialists’ (“Union”) argument that our previous opinion relied upon a

procedural bar invoked by the Authority against the Union, and now the Union

argues that the Authority is vulnerable to a different procedural bar. However, we

conclude that the default at issue now is more attributable to the Court itself than

to either party. Moreover, it should have been obvious to the Union that our

failure in the previous opinion to grant the Authority’s cross-application for

enforcement was a mere inadvertence, and that enforceability was inevitable once

the Union’s appeal had been denied. Accordingly, we now re-issue our previous

opinion, adding an express grant of the Authority’s cross-application for

enforcement. The opinion as re-issued is as follows.

                                          2
       The Union petitioned this Court for review of a decision by the Authority

affirming the decision of the Administrative Law Judge who found an unfair labor

practice on the part of the Union’s Macon, Georgia, unit because their facility

representative failed to poll a non-Union member with respect to the determination

of the watch schedule for the next year.

      The Authority declined to consider several exceptions or challenges which

the Union asserted for the first time before the Authority. Among these was the

Union’s argument that, under its interpretation of the collective bargaining

agreement, the Union was not entitled to unilaterally determine the watch

schedule, because that was a matter to be jointly negotiated with the employer. As

part of this argument, the Union argued to the Authority for the first time that,

under Authority precedent, a union was not required to poll all members (and not

required to poll non-union members) where the subject matter of the poll was

merely advisory to determine the Union’s negotiating position.

      We can assume arguendo that we would have discretion to disregard the

Authority’s invocation of the procedural bar if, for example, manifest injustice

would result. Therefore, we explore whether manifest injustice would occur in

this matter if we honor the procedural bar invoked by the Authority.

      We note that the cease and desist order in this matter operates only against

                                           3
the Union’s actions with respect to its employees in the Macon Automated Flight

Service Station in Macon, Georgia.1 The Authority conceded this at oral

argument. Accordingly, the reach of the instant order is exceedingly limited.

Similarly, the burden on the Union resulting from this order is very light. Thus,

we can assume arguendo that the order is based on flawed factual assumptions

and/or erroneous legal principles, but we nevertheless cannot conclude that we

should exercise discretion to override the Authority’s invocation of the procedural

bar in this matter.

        Accordingly, the Union’s Petition for Review is DENIED2 and the

Authority’s Cross-Application for enforcement of its order is GRANTED.




        1
               The other facets of the order are similarly limited and even less burdensome.
        2
               The service issue was raised for the first time on appeal. Accordingly, we do not
consider it.


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