Exercise #1 – Failure to raise: 5 C.F.R. §§ 2425.4(c) & 2429.5

The Agency posted a vacancy. Both the selectee and the grievant applied. The Union filed 

a grievance after the Agency chose the selectee. 

The Arbitrator found that Article 13 of the parties’ agreement applied. Article 13 provides 

that the Agency will fill vacancies from among qualified employees, based on seniority. 

Finding that the grievant was qualified and most senior, the Arbitrator concluded that the 

Agency violated the parties’ agreement by not selecting the grievant, and he directed the 

Agency to place the grievant in the position.

The Agency then filed exceptions to the award. The Agency argued that the award was 

contrary to its right to make selections for appointments under § 7106(a)(2)(C) of the 

Statute. In this regard, the Agency claimed that it had argued at arbitration that the 

provisions of Article 13 were contrary to § 7106. But there was nothing in the record that 

showed that the Agency argued at arbitration, or in its pre- and post-hearing briefs, that 

the provisions of Article 13 were contrary to § 7106. Instead, the only reference to § 7106 

concerned the interpretation of a previous memorandum of understanding.

The Agency also argued that the grievance was not substantively arbitrable because 

§ 7121(c)(4) of the Statute excludes from the negotiated grievance procedure grievances 

concerning, among others, any appointment. 

Can the agency argue on exceptions that the award violates its management right to select 

appointees?

Teaching point: No, the Agency cannot raise that argument. In U.S. Department of Veterans 

Affairs, James N. Quillen VA Medical Center, Mountain Home, Tennessee, 69 FLRA 144, 145 

(2015) (Member Pizzella dissenting), the Authority addressed an agency claim on exceptions 

that Article 13 was contrary to § 7106. Noting the agency’s concession that it was aware at 

arbitration that Article 13 was at issue, but finding that the agency had not made its § 7106 

managements-right argument to the arbitrator, the Authority held that the agency was barred 

from raising this argument for the first time on exceptions. 

Is the grievance substantively arbitrable?

Teaching point: Yes. See id. at 145. Substantive arbitrability involves questions as to 

whether a dispute’s subject matter is arbitrable. See Overseas Private Investment Corp., 

68 FLRA 982, 984-85 (2015) (Member Pizzella dissenting).

The Authority has long held that § 7121(c)(4) applies only to initial appointments to the 

federal service. U.S. Dep’t of Agric., Rural Dev. Centralized Servicing Ctr., St. Louis, Mo., 

57 FLRA 166, 168 (2001). That is not the case here: the grievant and the other applicants 

were already federal employees. So, because § 7121(c)(4) applies only to initial 

appointments to the federal service, the grievance was substantively arbitrable. See id.
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What if the grievant were an employee appointed on a part-time basis, who had 

asked for more hours, but was denied them, and, subsequently, the Agency 

appointed another temporary, part-time employee? The Union files a grievance 

based on the grievant having been denied the additional hours. Would the 

grievance be substantively arbitrable, or would § 7121(c)(4) bar the grievance?

Teaching point: Yes, the grievance is substantively arbitrable. The Authority has found that 

such a grievance was substantively arbitrable, and that the matter concerned only indirectly the 

appointment of the temporary employee. Because the grievance challenged the agency’s denial 

of the grievant’s request for additional hours, the grievance did not directly challenge the 

appointment of the other employee. Additionally, the requested remedy – backpay – in no way 

concerned that appointment. AFGE, Local 2654, 27 FLRA 143, 144 (1987).
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Exercise #2 –Back Pay Act/Sovereign Immunity

The Agency suspended an employee-awards program for fiscal year (FY) 2013 due to 

sequestration. The Union filed a grievance alleging that the Agency had violated the 

parties’ agreement, regulation, and law. The Arbitrator found that the Agency had not 

violated the parties’ agreement, law, or regulation, because its hands were tied by 

sequestration. Nonetheless, the Arbitrator ordered that the Agency give backpay, in the 

form of quality step increases, to employees who would have received monetary awards in 

the absence of sequestration, as well as to those who were given outstanding performance 

appraisals in FY 2013.

The Agency filed exceptions to the award, arguing that the award was contrary to both the 

Back Pay Act (BPA) and the doctrine of sovereign immunity because the Arbitrator did not 

find that the Agency had violated either the parties’ agreement or any statutory provision. 

As a preliminary matter, the Union argued that the Authority should dismiss the Agency’s 

sovereign-immunity argument under §§ 2425.4(c) and 2429.5 of the Authority’s 

Regulations because the Agency had not raised it to the Arbitrator below.

Would you dismiss the Agency’s exception?

Teaching Point: No, the Agency’s sovereign-immunity argument should not be dismissed. 

Although the Agency failed to raise its sovereign-immunity argument before the Arbitrator, the 

issue of sovereign immunity may be raised at any time to the Authority, regardless of whether it 

was raised to the Arbitrator. Therefore, the Authority rejected the Union’s argument and allowed 

the Agency’s exception to proceed. U.S. DOJ, Fed. BOP, Fed. Corr. Complex – Allenwood, 

White Deer, Pa., 68 FLRA 841, 842 (2015) (BOP Allenwood) (Chairman Pope concurring).

Turning to the merits of the Agency’s argument, would you uphold the Arbitrator’s 

decision to award backpay in the form of quality step increases?

Teaching Point: No. An award of backpay is authorized under the BPA only when an arbitrator 

finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel 

action; and (2) the personnel action directly resulted in the withdrawal or reduction of an 

employee’s pay, allowances, or differentials. The first requirement can be satisfied by a finding 

of a violation of applicable law, regulation, or the parties’ agreement.

Here, the Arbitrator specifically found that the Agency did not violate the parties’ agreement, 

law, or regulation. The Arbitrator also did not find that any law other than the BPA waived 

sovereign immunity in this case. Accordingly, the Authority found that the award was contrary 

to the BPA and set it aside. BOP Allenwood, 68 FLRA at 843.