73 FLRA No. 157 Decisions of the Federal Labor Relations Authority 799

73 FLRA No. 157

UNITED STATES 

DEPARTMENT OF HOMELAND SECURITY

CUSTOMS AND BORDER PROTECTION

(Agency)

and

NATIONAL TREASURY 

EMPLOYEES UNION

(Union)

0-AR-5836

_____

DECISION

February 27, 2024

_____

Before the Authority: Susan Tsui Grundmann, Chairman,

and Colleen Duffy Kiko, Member

(Chairman Grundmann concurring)

I. Statement of the Case

This case concerns customs officers who are 

regularly scheduled to perform nightwork, and two 

statutes that authorize premium pay for such nightwork: 

the Federal Employees Pay Act (FEPA)1and the 

Customs Officer Pay Reform Act (COPRA).2 

Following a 1995 arbitration award and an 

associated settlement agreement between the parties, the 

Agency began providing—without limitation—COPRA 

premium pay to customs officers when they were on sick, 

annual, court, or military leave during scheduled 

nightwork. Several years later, Congress created two new 

forms of paid leave: parental leave and COVID-19 

emergency leave (emergency leave). Subsequently, when 

an employee used eight or more hours of these new leave 

types in a pay period, the Agency did not provide COPRA 

nightwork premium pay for the time spent on such leave. 

The Union then filed a grievance.

1 5 U.S.C. § 5545(a).

2 19 U.S.C. § 267.

3 See, e.g., 5 C.F.R. § 630.1704 (paid parental-leave regulation 

referring to FEPA regulation 5 C.F.R. § 550.122(b) as the 

“[eight]-hour rule”). 

4 See, e.g., U.S. Dep’t of Transp., FAA, 52 FLRA 649, 656 (1996) 

(identifying statutory basis for premium pay and finding award 

providing nightwork premium pay outside of statutory 

authorization contrary to law).

5 5 U.S.C. § 5545(a).

In an award, Arbitrator James W. Mastriani 

determined the Agency erroneously applied a FEPA 

premium-pay limitation called the “eight-hour rule”3to 

COPRA nightwork premiums for parental and emergency 

leave. Accordingly, the Arbitrator directed the Agency to 

make whole affected employees, and to no longer apply 

the eight-hour rule in that manner. However, the 

Arbitrator rejected the Union’s unfair-labor-practice 

(ULP) claims alleging the Agency’s failure to pay COPRA 

nightwork premiums violated the 1995 award and 

repudiated the settlement agreement. Both parties filed 

exceptions to the award.

Resolving some of the Agency’s exceptions 

requires the interpretation of Office of Personnel 

Management (OPM) regulations and guidance. 

Specifically, the Agency relies on OPM authorities to 

allege it properly applied FEPA’s eight-hour rule. Based 

on an Authority-requested OPM advisory opinion, we 

deny those exceptions. Further, the Union argues the 

Arbitrator erred as a matter of law by rejecting the Union’s 

ULP allegations. Because we agree with the Arbitrator 

that the Agency complied with a reasonable interpretation 

of the 1995 award and the settlement agreement, we deny 

the Union’s exceptions. Finally, we conclude the Agency 

has not established the award is impossible to implement 

or based on nonfacts.

II. Background and Arbitrator’s Award

Federal employees are entitled to premium pay 

only as authorized by statute.4 In § 5545 of FEPA,5

Congress provided a ten-percent premium for regularly 

scheduled nightwork performed by certain employees.6 

Under a FEPA provision known as the eight-hour rule, 

employees who are regularly scheduled for nightwork 

receive nightwork premium pay even while on paid leave, 

but only if they take fewer than eight hours of leave in a 

pay period.7 If an employee takes eight hours or more of 

leave, then all leave hours will be paid without the 

premium.8 Title 5, § 550.122(b) of the Code of Federal 

Regulations implements FEPA’s eight-hour rule.9

Congress later enacted COPRA, in 1993, to 

govern premium pay for customs officers.10 COPRA 

authorizes a higher premium rate than FEPA for nightwork 

6

Id. § 5545(a)(2); 5 C.F.R. § 550.101 (explaining coverage of 

FEPA premium-pay regulations).

7 5 U.S.C. § 5545(a)(2).

8 5 C.F.R. § 550.122(b).

9

Id. (“An employee is entitled to a night pay differential for a 

period of paid leave only when the total amount of that leave in 

a pay period, including both night and day hours, is less than 

[eight] hours.”). 

10 Pub. L. No. 103-66, 107 Stat. 312, 668-72 (1993) (codified 

at 19 U.S.C. § 267).
800 Decisions of the Federal Labor Relations Authority 73 FLRA No. 157

—fifteen to twenty percent, as opposed to ten percent.11 In 

addition, unlike FEPA, COPRA does not contain an 

eight-hour rule.12

 

After Congress enacted COPRA, the parties 

disagreed about whether FEPA’s eight-hour rule applied 

to COPRA nightwork. That dispute went to arbitration. In 

a 1995 arbitration award (the 1995 award), an arbitrator 

found FEPA’s eight-hour rule did not apply to COPRA 

nightwork premium pay for sick, annual, court, or military 

leave.13 Under an associated settlement agreement 

(the settlement agreement), the Agency began paying 

COPRA nightwork premiums for all such leave.14

In 2020, the Federal Employee Paid Leave Act 

began providing paid parental leave to federal 

employees.15 The following year, the American Rescue 

Plan Act of 2021 established paid emergency leave for 

federal employees based on certain COVID-19-related 

qualifying circumstances.16 OPM subsequently issued 

regulations “to govern the granting of paid parental leave 

to covered employees,”17 and guidance about the payment 

of emergency leave.18 Both the parental-leave regulation 

and the emergency-leave guidance state that their 

respective leave types are payable as permitted under 

“the [eight]-hour rule in 5 C.F.R. [§] 550.122(b).”19 

The Agency began applying the eight-hour rule 

when any officer used eight or more hours of parental or 

emergency leave in a pay period. The Union grieved, 

alleging the Agency failed to comply with the 1995 award, 

repudiated the settlement agreement, and violated 

COPRA, along with other paid-leave statutes and 

regulations. The grievance went to arbitration. 

Before the Arbitrator, the parties stipulated the 

Agency did not pay COPRA premiums to “any employee 

covered by COPRA who is regularly scheduled for 

nightwork and has taken eight or more hours” of parental 

or emergency leave in a pay period.20 The parties further 

stipulated the Agency’s payroll-system timekeeping codes 

for parental and emergency leave do not permit the 

payment of any nightwork premiums.21

11 19 U.S.C. § 267(b)(1); 19 C.F.R. § 24.16(g)(3).

12 See generally 19 U.S.C. § 267(c). 

13 Agency’s Exceptions, Ex. G.4 (1995 Award) at 8 (discussing 

leave provided under 5 U.S.C. §§ 6303, 6307, 6322, 6323).

14 Agency’s Exceptions, Ex. G.5 (1996 Settlement Agreement) 

at 1 (“[T]o comply with the [1995] arbitration award,” the 

Agency “will make every reasonable effort . . . to pay employees 

the night differential for periods of leave in excess of [eight] 

hours.”).

15 5 U.S.C. § 6382(d)(2).

16 American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 4001, 

135 Stat. 4, 77 (2021) (establishing Emergency Federal 

Employee Leave Fund to provide paid leave for absences arising 

from the COVID-19 pandemic).

17 5 C.F.R. § 630.1701(a).

The Arbitrator framed the issues as whether the 

Agency “violate[d] the parties’ agreement, applicable law, 

regulation, policy, or the terms of [the 1995 award] when 

it applied the eight-hour rule to the payment of 

[parental and emergency leave]? If so, what shall be the 

remedy?”22 

Addressing the Union’s failure-to-comply 

allegation, the Arbitrator found the 1995 award did not 

obligate the Agency to pay nightwork premiums for 

parental or emergency leave because those leave types 

“did not exist at the time.”23 Similarly, regarding the 

settlement agreement, the Arbitrator concluded the issue 

of whether the eight-hour rule applies to parental and 

emergency leave is “newly presented and therefore cannot 

form the basis for a retroactive ULP for repudiation.”24 

Further, the Arbitrator observed the Agency continued to 

pay COPRA nightwork premiums for sick, annual, court, 

and military leave consistent with the 1995 award and the 

settlement agreement. Accordingly, the Arbitrator 

rejected the Union’s ULP claims. 

Nonetheless, the Arbitrator found the Agency 

“misapplied the eight-hour rule” to COPRA nightwork 

premiums for parental and emergency leave.25 The 

Arbitrator reasoned that COPRA itself does not include an 

eight-hour rule, and if “Congress wished to carry the 

eight-hour rule over from FEPA into COPRA, it would 

have explicitly done so.”26 In addition, the Arbitrator 

determined the Agency’s misapplication of the eight-hour 

rule resulted in employees receiving less than the “full 

amount of paid leave[,] charged at the COPRA 

night[]work rate[,]” to which they were “entitled.”27

As remedies, the Arbitrator directed the Agency 

to “cease and desist” from applying the eight-hour rule to 

COPRA nightwork premium pay for parental and 

emergency leave, and to make any affected employees 

18 OPM, Guidance on COVID-19 Emergency Paid Leave 

(Section 4001 of the American Rescue Plan Act of 2021), 

Attach. 2 (Apr.29, 2021), 

https://chcoc.gov/sites/default/files/Attachment%202%20Guida

nce%20on%20COVID-19%20Emergency%20Paid%20Leave

.pdf (Emergency-Leave Guidance).

19 Id.; 5 C.F.R. § 630.1704(b).

20 Award at 3-4.

21 Id.

22 Id. at 16.

23 Id. at 26.

24 Id.

25 Id. at 30.

26 Id. at 26.

27 Id. at 30.
73 FLRA No. 157 Decisions of the Federal Labor Relations Authority 801

whole by paying them the premium rate they would have 

received had the Agency not applied that rule.28

The Union and the Agency each excepted to the 

award on September 12, 2022, and filed oppositions on 

October 12, 2022. 

III. OPM’s Advisory Opinion

In its exceptions, the Agency makes several 

arguments that require the interpretation of OPM 

regulations and guidance. Those arguments include: 

FEPA’s structure, and its implementing regulation, 

establish that the eight-hour rule applies to COPRA 

nightwork premium pay;29 OPM’s parental-leave 

regulation expressly applies the eight-hour rule to 

parental-leave payments;30 and OPM-issued guidance 

about emergency leave expressly applies the eight-hour 

rule to emergency-leave payments.31

 

On May 16, 2023, under § 7105(i) of the 

Federal Service Labor-Management Relations Statute 

(the Statute),32 the Authority requested an advisory 

opinion from OPM concerning the proper interpretation of 

the relevant regulations and guidance. Specifically, we 

asked OPM whether the eight-hour rule, as set forth in 

FEPA and its implementing regulation, applies to customs 

officers whose nightwork premium pay is authorized by 

COPRA and who are taking parental or emergency leave. 

After the Authority notified the parties of our request to 

OPM, the parties each submitted briefs to OPM addressing 

the presented question.33

On September 1, 2023, OPM responded with a 

detailed advisory opinion. Starting with the FEPA 

regulations, OPM noted that customs officers are generally 

covered by FEPA.34 However, OPM observed that 

5 C.F.R. § 550.101(d) “explicitly exclude[s]” from 

FEPA’s coverage “night . . . services for which additional 

pay is provided by . . . [COPRA].”35 According to OPM, 

that regulatory wording “clear[ly]” excludes COPRA 

nightwork from “the entire subpart” of FEPA’s 

28 Id. at 31.

29 Agency’s Exceptions Br. at 20-23.

30 Id. at 14-15.

31 Id. at 17-18.

32 5 U.S.C. § 7105(i) (“[T]he Authority may request from the 

Director of the [OPM] an advisory opinion concerning the proper 

interpretation of rules, regulations, or policy directives issued by 

the [OPM] in connection with any matter before the Authority.”).

33 OPM Opinion at 2 nn.1-2 (noting each party “submitted its 

views to OPM regarding the subject of” the Authority’s request).

34 Id. at 6 (citing 5 C.F.R. § 550.101(a)).

35 Id. (alterations in original) (quoting 5 C.F.R. § 550.101(d)(1)).

36 Id.

37 Id.

38 5 U.S.C. § 5545(a).

premium-pay regulations.36 Because the eight-hour rule is 

contained within that regulatory subpart (at 5 C.F.R. 

§ 550.122(b)), OPM opined that FEPA’s eight-hour rule 

“does not apply to leave payments for employees receiving 

COPRA night pay.”37 

OPM reinforced its regulatory interpretation by 

reviewing the FEPA statute itself. Section 5545 of FEPA 

sets forth the statutory eight-hour rule and applies it to 

nightwork.38 OPM observed that § 5545 of FEPA—within 

the same subsection that contains the eight-hour rule—

explicitly states that it does “not modify . . . [any] other 

statute authorizing additional pay for nightwork.”39 As 

COPRA is such a statute, OPM determined FEPA does not 

modify COPRA to include the eight-hour rule. In OPM’s 

view, under FEPA’s “plain text,” the eight-hour rule “does 

not apply to nightwork under COPRA,”40 and “[t]he fact 

that . . . officers are on [parental] or [emergency leave] 

does not alter this basic analysis.”41

Next, OPM turned to its regulation and guidance 

pertaining to parental leave and emergency leave, 

respectively, to assess whether either required application 

of the eight-hour rule. OPM recognized that both the 

parental-leave regulation and the emergency-leave 

guidance reference the eight-hour rule.42 In fact, both state 

that their respective leave types are payable as permitted 

under “the [eight]-hour rule in 5 C.F.R. [§] 550.122(b).”43 

However, OPM found this wording inconclusive because, 

as noted above, the eight-hour rule in § 550.122(b) applies 

only to FEPA-covered nightwork, and FEPA’s regulations 

exclude COPRA nightwork from its coverage. 

OPM also observed that both the parental-leave 

regulation and the emergency-leave guidance require 

agencies to pay these leave types at the same rate as 

“annual leave.”44 Since the Agency “established a policy” 

of paying COPRA nightwork premiums for annual leave 

without applying the eight-hour rule,45 OPM reasoned that 

the Agency was precluded from applying the eight-hour 

rule to parental and emergency leave.46

39 OPM Opinion at 6 (alterations in original) (quoting 5 U.S.C. 

§ 5545(a)).

40 Id.

41 Id. at 1.

42 Id. at 4-5.

43 See id.

44 Id. at 6 (quoting 5 C.F.R. § 630.1704(a) (“The pay an employee 

receives when using paid parental leave shall be the same pay the 

employee would receive if the employee were using annual 

leave.”)); id. at 6-7 (quoting Emergency-Leave Guidance 

§ E.3(a) (requiring agencies to pay emergency leave “at the same 

hourly rate as annual leave”)).

45 Id. at 6-7.

46 Id. at 7. However, OPM stated that nothing in OPM’s 

regulations would “limit” the Agency from prospectively 

changing its annual-leave policy. Id. at 7 n.6.
802 Decisions of the Federal Labor Relations Authority 73 FLRA No. 157

For these reasons, OPM advised the Authority 

that FEPA’s eight-hour rule “does not apply to leave 

payments for [customs] officers who are receiving 

COPRA night pay and who are taking 

[parental or emergency leave].”47

We provided the parties an opportunity to 

respond to OPM’s advisory opinion. On September 11, 

2023, the Union submitted a response. The Agency did 

not respond.

IV. Analysis and Conclusions

A. Neither the Agency nor Union establish 

the award is contrary to law.

Both parties filed contrary-to-law exceptions to 

the award. In resolving a contrary-to-law exception, the 

Authority reviews any question of law raised by an 

exception and the award de novo.48 In applying a de novo 

standard of review, the Authority assesses whether the 

arbitrator’s legal conclusions are consistent with the 

applicable standard of law.49 Under this standard, the 

Authority defers to the arbitrator’s underlying factual 

findings unless the excepting party establishes that they are 

nonfacts.50

1. The Agency does not establish 

that FEPA’s eight-hour rule 

applies to COPRA nightwork 

premium pay.

As noted above, the Agency relies on FEPA and 

its implementing regulation,51 OPM’s parental-leave 

regulation,52 and OPM’s emergency-leave guidance53 to 

argue the Arbitrator erred in concluding the Agency 

misapplied the eight-hour rule. 

In its advisory opinion, OPM addressed each of 

the authorities upon which the Agency relies. OPM found 

(1) FEPA’s regulations “explicitly exclude” 

COPRA-covered nightwork from FEPA’s eight-hour 

rule;54 (2) after setting forth the eight-hour rule, § 5545(a) 

47 Id. at 1.

48 AFGE, Loc. 3254, 73 FLRA 325, 326 (2022).

49 Id.

50 Id.

51 Agency’s Exceptions Br. at 20-23.

52 Id. at 14-15.

53 Id. at 17-18.

54 OPM Opinion at 6.

55 Id.

56 Id. at 6-7.

57 Id.

58 Nat’l Ass’n of Agric. Emps., 51 FLRA 843, 849 (1996) 

(quoting FLRA v. U.S. Dep’t of the Treasury, Fin. Mgmt. Serv., 

884 F.2d 1446, 1454 (D.C. Cir. 1989)); see U.S. Dep’t of HUD, 

of FEPA expressly states that it does “not modify” 

COPRA;55 (3) neither the parental-leave regulation nor the 

emergency-leave guidance requires application of the 

eight-hour rule to COPRA nightwork premiums;56 and 

(4) both the parental-leave regulation and the 

emergency-leave guidance suggest the Agency may not 

apply the eight-hour rule to COPRA nightwork premiums 

for parental or emergency leave, because the Agency does 

not do so for annual leave.57

The Authority has held that it will find OPM’s 

interpretation of its own regulation controlling unless the 

interpretation is “‘plainly erroneous or inconsistent’ with 

the language of the regulation.”58 The Agency did not 

respond to OPM’s advisory opinion and, thus, does not 

argue that opinion is plainly erroneous or inconsistent with 

regulation. Further, we find OPM’s interpretations in the 

advisory opinion are consistent with the plain wording of 

FEPA and its implementing regulation, as well as the 

parental-leave regulation and emergency-leave 

guidance.59 Additionally, it is undisputed that COPRA 

itself does not contain an eight-hour rule. For these 

reasons, we defer to OPM’s advisory opinion.60 

Consistent with OPM’s opinion, we find FEPA’s 

eight-hour rule does not apply to COPRA nightwork 

premium pay for parental or emergency leave. The 

Arbitrator’s finding—that the Agency misapplied the 

eight-hour rule to COPRA nightwork premiums for 

parental and emergency leave—is consistent with OPM’s 

undisputed opinion. Thus, we deny the Agency’s 

exceptions that challenge the legality of the Arbitrator’s 

finding.

In related exceptions, the Agency argues: the 

Arbitrator misapplied caselaw concerning the eight-hour 

rule’s compatibility with COPRA;61 the award violates the 

Antideficiency Act by requiring payments that exceed 

what FEPA’s eight-hour rule permits;62 the Arbitrator 

misinterpreted caselaw concerning entitlement to premium 

pay while on paid leave notwithstanding the explicit 

limitation in FEPA’s eight-hour rule;63 and the Arbitrator 

based the award on a nonfact by failing to acknowledge 

73 FLRA 287, 289 (2022) (then-Member Grundmann 

concurring; Chairman DuBester dissenting).

59 See, e.g., OPM Opinion at 6 (explaining how regulatory 

interpretation comports with “plain text” of FEPA statute). 

60 See U.S. Dep’t of VA, Ralph H. Johnson Med. Ctr., 

Charleston, S.C., 60 FLRA 46, 49 (2004) (Chairman Cabaniss 

concurring; Member Pope concurring) (deferring to OPM 

advisory opinion where party failed to establish that the opinion 

was plainly erroneous or inconsistent with regulation).

61 Agency’s Exceptions Br. at 25-27 (citing Bull v. United States,

479 F.3d 1365 (Fed. Cir. 2007)).

62 Id. at 27-28 (citing 31 U.S.C. §§ 1301, 1341).

63 Agency’s Exceptions Br. at 23-25 (citing Lanehart v. Horner,

818 F.2d 1574 (Fed. Cir. 1987); Armitage v. United States,

991 F.2d 746 (Fed. Cir. 1993)).
73 FLRA No. 157 Decisions of the Federal Labor Relations Authority 803

that both the parental-leave regulation and the 

emergency-leave guidance require application of the 

eight-hour rule.64 Each of these exceptions assumes that 

FEPA’s eight-hour rule applies to COPRA nightwork 

premium pay for parental and emergency leave. As 

discussed above, OPM’s advisory opinion, to which we 

defer, establishes that the eight-hour rule does not apply in 

that manner. Therefore, we deny these Agency 

exceptions.65 

2. The Agency does not establish 

the remedy is contrary to the 

Back Pay Act.

The Agency argues66 the make-whole remedy is 

contrary to the Back Pay Act (the BPA).67 To justify an 

award of backpay under the BPA, an arbitrator must find 

that: (1) the aggrieved employee was affected by an 

unjustified or unwarranted personnel action; and (2) the 

personnel action resulted in the withdrawal or the 

reduction of any employee’s pay, allowances, or 

differentials.68 A violation of an applicable law, rule, 

regulation, or provision of a collective-bargaining 

agreement constitutes an “unjustified or unwarranted 

personnel action.”69 The loss of a pay differential 

constitutes a withdrawal or reduction of an employee’s 

pay, allowances, or differentials for purposes of the BPA.70

The Agency first argues the Arbitrator did not 

identify an unjustified or unwarranted personnel action.71 

However, the Arbitrator found the Agency improperly 

applied FEPA’s eight-hour rule to employees who “were 

entitled to the full amount of paid leave charged at the 

COPRA night[]work rate.”72 As established above, 

FEPA’s eight-hour rule does not apply to COPRA 

64 Id. at 34-35.

65 See Indep. Union of Pension Emps. For Democracy & Just., 

68 FLRA 999, 1010 (2015) (denying exceptions premised on 

arguments previously denied).

66 Agency Exceptions Br. at 30-32.

67 5 U.S.C. § 5596.

68 U.S. Dep’t of the Air Force, 11th Wing, Joint Base Andrews, 

Md., 72 FLRA 691, 692 (2022).

69 U.S. DOD, Def. Logistics Agency, Def. Distrib. Region W., 

Stockton, Cal., 48 FLRA 221, 223 (1993).

70 AFGE, Loc. 3854, 71 FLRA 951, 952 (2020) (Loc. 3854).

71 Agency’s Exceptions Br. at 30.

72 Award at 30.

73 Loc. 3854, 71 FLRA at 952 (stating that the arbitrator 

“correctly found” that the improper denial of environmental 

differential pay was an “unjustified personnel action”).

74 Agency’s Exceptions Br. at 31-32.

75 Award at 3-4.

76 Id. at 31.

77 Id. at 30.

78 Id. at 31 (directing Agency to pay affected employees “the rate 

that they would have received had the eight-hour rule not been 

applied”). 

nightwork premium pay for parental or emergency leave. 

The Authority has found the failure to provide the 

appropriate premium pay is an unjustified personnel action 

under the BPA.73 Accordingly, the Arbitrator’s findings 

satisfy the BPA’s first requirement. 

The Agency next contends the Arbitrator did not 

establish a causal connection between the Agency’s 

actions and the employees’ loss.74 At arbitration, the 

parties stipulated that the Agency “has not paid 

night[work premium pay] to any employee covered by 

COPRA who is regularly scheduled for nightwork and has 

taken eight or more hours” of parental or emergency leave 

in a pay period.75 The Arbitrator found the Agency’s 

actions constituted a misapplication of FEPA76 that 

deprived employees of pay to which they were otherwise 

“entitled.”77 He then directed the Agency to make those 

affected employees whole.78 These findings sufficiently 

establish a causal connection between the Agency’s 

violation and employees’ diminished pay.79

Attempting to refute this causal connection, the 

Agency argues the employees’ losses are due solely to the 

coding of the Agency’s payroll system.80 Although the 

parties stipulated that the payroll system’s codes for 

parental and emergency leave do not permit the payment 

of nightwork premiums,81 the Agency does not allege it 

would be impossible to create or change payroll coding to 

meet its regulatory requirements. Ultimately, it is the 

Agency’s obligation to ensure that it pays its employees in 

accordance with law.82 Therefore, we reject this argument. 

Lastly, the Agency claims: (1) the remedy is not 

covered by the BPA’s waiver of sovereign immunity 

because it exceeds the pay permitted under the eight-hour 

79 See U.S. Dept. of the Navy, Naval Air Depot, 

Cherry Point, N.C., 61 FLRA 38, 40 (2005) (“[W]hen arbitrators 

correct an unwarranted or unjustified personnel action, they are 

authorized, under the [BPA], to order the payment of any 

compensation, allowances, or differentials that the affected 

employee normally would have earned or received during the 

period, if the personnel action had not occurred.”); U.S. Dep’t of 

VA, Med. Ctr., Marion, Ill., 38 FLRA 270, 274 (1990) (finding 

requisite causal connection where arbitrator’s make-whole 

remedy consisted of “the premium pay [the grievant] would have 

received had he worked his regular tour” if agency had not 

improperly detailed him).

80 Agency’s Exceptions Br. at 31.

81 See Award at 3-4.

82 See, e.g., AFGE, Loc. 987, 66 FLRA 143, 145-46 (2011) 

(rejecting arbitrator’s determination that agency was not liable 

for underpayments allegedly caused by its payroll processor, 

noting “an employing agency’s general liability to its employees 

for any failures to properly compensate them as required by law 

or contract”).
804 Decisions of the Federal Labor Relations Authority 73 FLRA No. 157

rule;83 (2) the award is incomplete because the Arbitrator 

failed to identify a violation to support his backpay remedy 

under the BPA;84 and (3) the Arbitrator based the award on 

the nonfact that the Agency caused employees’ loss of 

premium pay rather than the payroll system’s 

“required coding.”85 Because each of these exceptions is 

based on claims we have already considered, and rejected, 

we deny these exceptions.86

3. The Union does not establish 

the Arbitrator erred in denying 

the Union’s ULP allegations.

In resolving a grievance that alleges a ULP under 

§ 7116 of the Statute, an arbitrator functions as a substitute 

for an Authority administrative law judge (ALJ).87 In a 

grievance that alleges a ULP by an agency, the union bears 

the burden of proving the elements of the alleged ULP by 

a preponderance of the evidence.88 As in other arbitration 

cases, in determining whether the award is contrary to the 

Statute, the Authority defers to the arbitrator’s findings of 

fact.89

a. The Union does not 

establish the Agency 

failed to comply with 

the 1995 award.

The Union asserts that, as a matter of law, the 

Agency’s application of the eight-hour rule constituted a 

failure to comply with the 1995 award.90 Failing to 

comply with a final and binding arbitration award 

constitutes a ULP in violation of § 7116(a)(1) and (8) of 

the Statute.91 The Authority’s standard for determining 

whether an agency has complied with a final and binding 

83 Agency’s Exceptions Br. at 32-34.

84 Id. at 40 (arguing “it is impossible for [the Agency] to 

implement the [a]ward because it is unclear which violation(s), if 

any, [the Agency] committed to justify backpay under the 

[BPA]”).

85 Id. at 38.

86 See U.S. DHS, U.S. CBP, 68 FLRA 253, 258 (2015) (“When a 

party’s sovereign-immunity claim depends on an argument that 

an arbitration award is contrary to the BPA, and the Authority 

finds that the award is consistent with the BPA, the Authority 

denies the sovereign-immunity claim.”); U.S. DHS, U.S. CBP, 

68 FLRA 184, 187 (2015) (denying nonfact argument premised 

on previously rejected claim that award was contrary to the 

BPA).

87 U.S. DHS, U.S. CBP, 64 FLRA 916, 920 (2010).

88 Id.

89 Id.

90 Union’s Exceptions Br. at 12-17.

91 U.S. Dep’t of the Treasury, IRS, Austin Compliance Ctr., 

Austin, Tex., 44 FLRA 1306, 1315 (1992) (citing U.S. Dep’t of 

the Air Force, Carswell Air Force Base, Tex., 38 FLRA 99, 105 

(1990)).

award is whether the agency’s action is consistent with a 

reasonable construction of the award.92 

According to the Union, the Arbitrator erred 

because the 1995 award “unambiguously held that the 

eight-hour rule does not apply to COPRA-covered 

employees, regardless of the type of leave at issue.”93 

Alternatively, the Union argues that, if the 1995 award is 

ambiguous, then the Agency acted unreasonably by 

treating parental and emergency leave different from the 

leave at issue in the 1995 award.94 In either case, the 

Union asserts the Arbitrator erred by failing to find the 

Agency committed a ULP. 

The Arbitrator found the 1995 award’s 

“explicit terms” concerned only four types of paid leave—

annual, sick, court, and military—and did not address 

parental or emergency leave, which “did not exist at the 

time.”95 He also found the Agency continues to pay 

COPRA nightwork premiums for those four leave types.96 

For these reasons, the Arbitrator concluded that the 

Agency’s application of the eight-hour rule to parental and 

emergency leave did not fail to comply with the 

1995 award.97

The Union correctly notes98 that the 1995 award 

uses the general term “leave” in assessing the eight-hour 

rule’s application.99 However, we find the Agency could 

have reasonably construed that term as referencing only 

the types of paid leave that the 1995 award involved—

annual, sick, court, and military.100 Thus, we agree with 

the Arbitrator’s conclusion that the Agency did not fail to 

92 U.S. DOJ, Fed. BOP, U.S. Penitentiary, Marion, Ill., 53 FLRA 

55, 60 (1997) (Marion Penitentiary).

93 Union’s Exceptions Br. at 15.

94 Id. at 16-17.

95 Award at 26; see also 1995 Award at 8 (specifying leave 

created by 5 U.S.C. §§ 6303, 6307, 6322, 6323). 

96 Award at 24 (stating Union “confirmed” Agency has not 

applied eight-hour rule for these kinds of leave).

97 Id. at 26-27.

98 Union’s Exceptions Br. at 15.

99 See, e.g., 1995 Award at 15 (directing compensation for 

employees who did not receive COPRA nightwork premium pay 

while “on leave”).

100 See Marion Penitentiary, 53 FLRA at 61 (where there were 

two competing—and reasonable—constructions of an 

arbitration award, Authority did not need to assess whether the 

respondent’s construction was correct in order to deny failure-tocomply ULP charge); Okla. City Air Logistics Ctr., 

Okla. City, Okla., 46 FLRA 862, 868 (1992) (upholding ALJ’s 

dismissal of failure-to-comply charge where respondent’s 

construction of ambiguous award was reasonable).
73 FLRA No. 157 Decisions of the Federal Labor Relations Authority 805

comply with the 1995 award in applying the eight-hour 

rule to parental and emergency leave.101 

Based on the above, we deny this exception.

b. The Union does not 

establish that the 

Agency repudiated 

the settlement 

agreement.

The Union contends the Arbitrator erred by 

failing to find the Agency repudiated the settlement 

agreement.102 In analyzing a repudiation allegation, the 

Authority examines two elements: (1) the nature and 

scope of the alleged breach of the agreement – i.e., was the 

breach clear and patent?; and (2) the nature of the 

agreement provision allegedly breached – i.e., did the 

provision go to the heart of the parties’ agreement?103 

With regard to the first element, if the meaning of a 

particular agreement term is unclear and a party acts in 

accordance with a reasonable interpretation of that term, 

then that action will not constitute a clear and patent breach 

of the agreement.104

The settlement agreement states that, “to comply 

with the [1995] . . . award,” the Agency “will make every 

reasonable effort . . . to pay employees the night 

differential for periods of leave in excess of [eight] 

hours.”105 The settlement agreement does not define the 

term “leave,” and it was reasonable for the Agency to 

conclude that it applies only to the types of leave specified 

in the corresponding 1995 award – particularly given that 

parental leave and emergency leave did not exist when the 

parties entered into the settlement agreement.106 

101 See Marion Penitentiary, 53 FLRA at 61 (respondent did not 

commit failure-to-comply ULP because its construction of the 

award was reasonable). Although the Union also argues the 

Arbitrator erred by failing to apply or cite Authority standards for 

failure-to-comply ULPs, Union’s Exceptions Br. at 13-14, we 

note that the Arbitrator’s failure to expressly reference the 

Authority’s ULP standard does not provide a basis for finding the 

award contrary to law. See U.S. Dept. of the Interior, Bureau of 

Mines, Pittsburgh Rsch. Ctr., 53 FLRA 34, 40 (1997) (finding 

award without extensive rationale was not contrary to law where 

findings were consistent with legal requirements); AFGE, 

Nat’l ICE Council 118, 73 FLRA 309, 310 n.12 (2022) 

(Chairman DuBester dissenting) (to extent excepting party 

challenged arbitrator’s failure to “explicitly apply” Authority’s 

two-prong covered-by test, Authority stated that an award is not 

“deficient solely because an arbitrator failed to apply a particular 

legal analysis,” and Authority assessed whether arbitrator’s 

conclusion was consistent with the covered-by standard 

(emphasis omitted)); U.S. Dep’t of Com., Pat. & Trademark Off., 

52 FLRA 358, 362 (1996) (although arbitrator misstated 

methodology, award established that arbitrator properly applied 

relevant legal framework).

102 Union’s Exceptions Br. at 17-21.

Moreover, the Union conceded that the Agency continues 

to pay COPRA nightwork premiums for the leave types 

at issue in the 1995 award.107 For these reasons, we find 

the Agency acted in accordance with a reasonable 

interpretation of the settlement agreement.108 Therefore, 

we deny this exception.109

B. The Agency does not establish that the 

remedy is incomplete, ambiguous, or 

impossible to implement.

The Agency argues the remedy is incomplete, 

ambiguous, and impossible to implement.110 In order to 

prevail on this ground, the appealing party must 

demonstrate that the award is impossible to implement 

because the meaning and effect of the award are too 

unclear or uncertain.111

The Arbitrator directed the Agency to make 

affected employees whole by paying them the nightwork 

premiums they would have received had the Agency not 

applied the eight-hour rule to parental and emergency 

leave.112 The Agency contends it cannot implement this 

remedy because the Arbitrator did not discuss the effect of 

COPRA’s annual cap on premium-pay earnings.113 

COPRA caps customs officers’ annual overtime 

and premium-pay earnings.114 Section 24.16(h) of 

COPRA’s implementing regulations specifies that 

“compensation awarded to a [c]ustoms [o]fficer for work 

not performed, which includes . . . awards made in 

accordance with back[]pay settlements, shall not be 

applied to any applicable pay[-]cap calculations.”115 The 

Agency—as the promulgator of this COPRA regulation—

has interpreted § 24.16(h) as “exempt[ing]” backpay 

103 U.S. Dep’t of Com., Pat. & Trademark Off., 65 FLRA 290, 

296 (2010) (citing Dep’t of the Air Force, 375th Mission Support 

Squadron, Scott Air Force Base, Ill., 51 FLRA 858, 862 (1996)).

104 Id. (citing SSA, N.Y.C., N.Y., 60 FLRA 301, 204 (2004)).

105 1996 Settlement Agreement at 1.

106 See Pension Benefit Guar. Corp., Wash., D.C., 73 FLRA 386, 

387 (2022) (PBGC) (finding agency did not repudiate agreement 

whose language “could reasonably be interpreted to support 

either of the contrary views offered in th[e] case”).

107 Award at 24 (stating the Union “confirmed” the Agency did 

not apply the eight-hour rule to annual, sick, court, and military 

leave).

108 See PBGC, 73 FLRA at 387 (denying exception challenging 

ALJ’s denial of repudiation ULP where agency’s actions 

followed reasonable interpretation of agreement).

109 See id. at 387 n.17 (finding no need to apply second part of 

repudiation test where first part was not met).

110 Agency’s Exceptions Br. at 40-41.

111 AFGE, Loc. 2516, 72 FLRA 567, 570 (2021) (Loc. 2516).

112 Award at 31.

113 Agency’s Exceptions Br. at 40-41.

114 19 U.S.C. § 267(c)(1).

115 19 C.F.R. § 24.16(h).
806 Decisions of the Federal Labor Relations Authority 73 FLRA No. 157

awards from pay-cap calculations.116 The Authority has 

previously deferred to the Agency’s publicly articulated 

interpretation of this regulation,117 and we continue to do 

so here. Accordingly, we find that the cap is not a bar to 

implementation of the award, and we deny this 

exception.118

C. The Agency does not establish the 

award is based on nonfacts.

In addition to those we have denied above,119 the 

Agency raises several more nonfact exceptions.120 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.121 A challenge to an arbitrator’s 

legal conclusion does not provide a basis for finding an 

award is deficient on nonfact grounds.122 

The Agency contends the Arbitrator erroneously 

stated that parental and emergency leave are 

“[pay] allowances, like COPRA.”123 The Arbitrator’s 

reference to parental and emergency leave as 

“pay allowances,” instead of paid leave, is immaterial to 

his conclusion that the Agency erred by applying the 

eight-hour rule to COPRA nightwork.124 Thus, the 

Agency does not establish that this misstatement is central 

to the award.125

Next, the Agency asserts the Arbitrator 

mistakenly likened COPRA to paid-leave statutes when he 

noted “COPRA’s similarity to the ‘leave with pay’ 

statutes” and stated that employees take “paid leave . . . 

under COPRA.”126 However, these statements are part of 

the Arbitrator’s legal analysis of FEPA, FEPA regulations, 

116 Pay Reform for Customs Inspectional Services, 59 Fed. Reg. 

46,752, 46,754 (Sept. 12, 1994) (noting that final COPRA 

regulation § 24.16(h) “correctly conveys the fact that 

[backpay awards and settlements] are exempt” from pay cap 

calculations).

117 See U.S. DHS, U.S. CBP, Seattle, Wash., 70 FLRA 180, 182 

(2017) (giving deference to Agency’s regulatory interpretation as 

found in the Federal Register, which was “publicly articulated” 

and made prior to litigation); see also U.S. Dep’t of the Treasury, 

U.S. Customs Serv., El Paso, Tex., 55 FLRA 553, 560 (1999) 

(rejecting assertion that backpay award that might exceed pay cap 

was contrary to COPRA and its implementing regulation).

118 See Loc. 2516, 72 FLRA at 570 (denying exception where 

party failed to demonstrate implementation would be 

impossible).

119 See section IV.A.1. (denying nonfact exception challenging 

Arbitrator’s application of the eight-hour rule); section IV.A.2. 

(denying nonfact exception challenging Arbitrator’s finding that 

the Agency caused the grievants’ loss of premium pay).

120 Agency’s Exceptions Br. at 34-39.

121 AFGE, Loc. 3954, 73 FLRA 39, 41 (2022).

122 Id.

123 Agency’s Exceptions Br. at 35-36 (quoting Award at 27); 

see also Award at 27-28 (stating that the parental- and 

COPRA, and certain paid-leave regulations.127 Regardless 

of the accuracy of the Arbitrator’s statements, the 

Agency’s exception challenging the Arbitrator’s legal 

analysis does not provide a basis for finding the award 

deficient on nonfact grounds.128

Finally, the Agency notes the Arbitrator directed 

it to “cease and desist from applying the eight-hour rule

with respect to paid leave taken from night[]work by 

COPRA-covered employees.”129 The Agency relies on the 

Arbitrator’s general use of the phrase “paid leave” to argue 

that the Arbitrator “erroneous[ly] assum[ed]” the Agency 

applied the eight-hour rule to annual and sick leave.130 

However, the Union—referencing the same sentence from 

the award—asserts the Arbitrator “did not assume that 

[the Agency] ha[d] applied the eight-hour rule to types of 

leave other than” parental and emergency.131 

When an opposing party agrees to interpret an 

award so as to avoid a deficiency alleged by an excepting 

party, the Authority has recognized the agreed-to 

interpretation of the award as binding, and has dismissed, 

as moot, any objections to the award based on a different 

interpretation.132 Because the Union has agreed to 

interpret the award in a manner that avoids the alleged 

deficiency, we recognize this agreed-to interpretation of 

the award as binding. In accordance with that 

interpretation of the award, we dismiss this exception as 

moot.

Based on the above, we partially dismiss and 

partially deny the Agency’s nonfact exceptions.

emergency-leave statutes are “like COPRA” in that they 

“are silent” as to whether FEPA’s eight-hour rule applies to 

COPRA nightwork premium pay).

124 See AFGE, Loc. 1101, 70 FLRA 644, 646 (2018) 

(Member DuBester concurring) (denying nonfact exception 

based on alleged misstatements where party failed to establish 

that they were central to award).

125 Id.

126 Agency’s Exceptions Br. at 36-37 (quoting Award at 29-30).

127 See Award at 27-30 (evaluating the parties’ arguments in light 

of statutory language and caselaw).

128 See NTEU, Chapter 298, 73 FLRA 350, 351 n.19 (2022) 

(finding that a challenge to an arbitrator’s legal conclusions did 

not prove a nonfact deficiency).

129 Agency’s Exceptions Br. at 39 (emphasis omitted) (quoting 

Award at 31).

130 Id.

131 Union’s Opp’n at 28 (emphasis added); see also Award at 24 

(stating Union “confirmed” Agency has not applied eight-hour 

rule to annual, sick, jury, or military leave).

132 U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., 

Poplar Bluff, Mo., 73 FLRA 498, 500 (2023).
73 FLRA No. 157 Decisions of the Federal Labor Relations Authority 807

V. Decision

We partially dismiss and partially deny the 

Agency’s exceptions, and we deny the Union’s exceptions.
808 Decisions of the Federal Labor Relations Authority 73 FLRA No. 157

Chairman Grundmann, concurring:

I agree with the decision in all respects, but write 

separately with regard to one issue. The decision 

accurately sets forth the Authority’s extant test – originally 

set forth in Department of the Air Force, 375th Mission 

Support Squadron, Scott Air Force Base, Illinois 

(Scott AFB)

1 – for assessing contract-repudiation 

allegations. As the decision states, the Scott AFB test 

examines: (1) the nature and scope of the alleged breach 

of the agreement – i.e., was the breach clear and patent?; 

and (2) the nature of the agreement provision allegedly 

breached – i.e., did the provision go to the heart of the 

parties’ agreement?2

The first part of this test is consistent with 

well-established precedent, in both the federal and private 

sectors, holding that the “mere breach” of a 

collective-bargaining agreement does not constitute an 

unfair labor practice.3 Further, I agree with how the 

decision applies that part of the test. However, I have 

reservations about the second part of the test. 

As an initial matter, the Authority has never 

explained the rationale behind it. The “heart of the 

agreement” wording seems to have first appeared in DOD, 

Warner Robins Air Logistics Center, Robins Air Force 

Base, Georgia,

4 where the Authority stated: “[T]he nature 

and scope of the [r]espondent’s refusal went to the heart 

of the agreement and the collective[-]bargaining 

relationship itself and, therefore, amounted to a 

repudiation of the obligation imposed by the agreement’s 

terms.”5 Although the Authority periodically employed 

this wording in subsequent decisions,6it did not expressly 

frame it as part of the test for repudiation until Scott AFB.

7

 

However, in doing so, it did not provide any rationale for 

imposing it. Then, in subsequent cases, the Authority –

again, without explanation – stated that this part of the 

Scott AFB test would assess “the importance of the 

1

51 FLRA 858 (1996).

2

Id. at 862.

3

See, e.g., U.S. DOL, 70 FLRA 27, 31 (2016) (Member Pizzella 

dissenting on other grounds); NCR Corp., 271 NLRB 1212, 1213 

n.6 (1984).

4

40 FLRA 1211 (1991).

5

Id. at 1220 (emphasis added).

6

See U.S. Dep’t of the Interior, Bureau of Reclamation, 

Wash., D.C. & Mid-Pac. Reg’l Off., Sacramento, Cal., 46 FLRA 

9, 28 (1992) (Interior) (Member Talkin dissenting in part on 

other grounds) (“The nature and scope of the [r]espondent[’s] 

. . . refusal went to the heart of the agreement and the 

collective[-]bargaining relationship itself and, therefore, 

amounted to a repudiation of the obligation imposed by the terms 

of the parties’ respective agreements in violation of 

[§] 7116(a)(1) and (5) of the Statute.”); Pan. Canal Comm’n, 

Balboa, Republic of Pan., 43 FLRA 1483, 1508 (1992) (“We find 

[breached] provision . . . relative to the agreement in which 

it is contained.”8

It is not clear to me why the Authority should be 

deciding for itself how important a contract provision is, 

relative to other provisions in the contract, when assessing 

whether a party has committed an unlawful repudiation. A 

repudiation violates § 7116(a)(5) of the Federal Service 

Labor-Management Relations Statute (the Statute)9

because it is inconsistent with the good-faith-bargaining 

obligation set forth in that section.10 If one party tells 

another that it will not comply with – or engages in some 

other clear and patent breach of – a contract provision the 

parties have lawfully negotiated, it seems the party has 

failed to bargain in good faith – regardless of the 

provision’s “importance” relative to other provisions in the 

contract. Further, I am unaware of any precedent arising 

under the National Labor Relations Act or Executive 

Order 11,491 – the predecessor to the Statute – that 

supports imposing such a requirement in this context. 

Nevertheless, as the decision discusses, the 

Union’s repudiation claim fails on the first part of the 

Scott AFB test. As such, the second part of that test is not 

at issue before us. Although I would be willing to consider 

the appropriateness of the second part of the test in a 

future, appropriate case, this is not an appropriate case in 

which to do so.

Therefore, I concur. 

that the nature and scope of the [r]espondent’s actions constituted 

more than a mere breach of the terms of the parties’ agreements 

but . . . went to the heart of the agreement[s].” (citation omitted) 

(internal quotation marks omitted)). 

7

51 FLRA at 862 (stating the Authority will assess, “in analyzing 

an allegation of repudiation[,] . . . the nature of the agreement 

provision allegedly breached (i.e., did the provision go to the 

heart of the parties’ agreement?)”).

8 U.S. DOJ, Fed. BOP, 68 FLRA 786, 788 (2015) 

(Member Pizzella dissenting in part on other grounds); 

U.S. Dep’t of the Air Force, Aerospace Maint. & Regeneration 

Ctr., Davis-Monthan Air Force Base, Tucson, Ariz., 64 FLRA 

355, 357 (2009) (Member Beck concurring in part and dissenting 

in part on other grounds).

9

5 U.S.C. § 7116(a)(5).

10 Interior, 46 FLRA at 28.