812 Decisions of the Federal Labor Relations Authority 73 FLRA No. 159

73 FLRA No. 159

ASSOCIATION OF CIVILIAN TECHNICIANS 

KENTUCKY LONG RIFLE CHAPTER 83

(Union)

and

UNITED STATES

DEPARTMENT OF THE ARMY

NATIONAL GUARD BUREAU

KENTUCKY ARMY NATIONAL GUARD

(Agency)

0-AR-5823

_____

DECISION

February 29, 2024

_____

Before the Authority: Susan Tsui Grundmann, 

Chairman, and Colleen Duffy Kiko, Member

I. Statement of the Case

Arbitrator C. Forest Guest denied a grievance 

alleging that the Agency violated the parties’ 

collective-bargaining agreement, § 706(2)(A) of the 

Administrative Procedure Act (APA) 

(Section 706(2)(A)),1 and § 7116(a)(7) of the Federal 

Service Labor-Management Relations Statute2 (the 

Statute) by implementing a new policy. The Union filed 

an exception on contrary-to-law grounds. Because the 

Union does not demonstrate that the award is contrary to 

law, we deny the exception.

II. Background and Arbitrator’s Award

The Agency employs dual-status technicians, 

who are required to maintain membership in the National 

Guard as a condition of continued civilian employment.3

 

Under 32 U.S.C. § 709(f)(1)(A) (Section 709(f)(1)(A)), 

technicians who have lost military membership in the 

National Guard “shall be promptly separated from military 

1 5 U.S.C. § 706(2)(A).

2 5 U.S.C. § 7116(a)(7).

3 32 U.S.C. § 709(b)(2); 10 U.S.C. § 10216. 4 32 U.S.C. § 709(f)(1)(A). 5 Exception, Attach. 5, 2007 TPR 715 at 4; see also Opp’n, 

Ex. A3, Agency Reply to New Evidence at 3. 

technician (dual status) employment by the adjutant 

general of the jurisdiction concerned.”4

 

The National Guard Bureau (bureau) is a joint 

bureau of the Department of the Army and the Department 

of the Air Force, and acts as a liaison between those 

departments and the states’ national guards. The bureau 

issues regulations pertaining to technicians’ conditions of 

employment. 

On June 29, 2020, the bureau published an 

instruction which, as relevant here, rescinded and replaced 

Technician Personnel Regulation (TPR) 715, dated 

July 13, 2007 (2007 TPR 715). The 2007 TPR 715 

pertinently stated, “the one exception to the requirement 

for prompt termination upon loss of military membership 

is in pending disability[-]retirement claims. Under these 

circumstances, a technician who has lost military 

membership may be retained until the [Office of Personnel 

Management’s (OPM’s)] adjudication is received.”5

 The 

new instruction (2020 TPR 715) removed this language 

and was “effective upon publication.”6

On July 22, 2020, the Agency notified the Union 

that the bureau had recently updated its regulations. The 

Agency solicited comments and proposals from the Union 

related to impact and implementation bargaining over the 

updated regulations. The Agency requested a response by 

August 21, 2020, but the Union did not respond.

In April 2021, the Agency issued a thirty-day 

notice7 of termination to a technician who had lost military 

membership but had a disability-retirement claim pending 

OPM adjudication. After the technician informed the 

Union of his proposed removal, the Union contacted the 

Agency regarding the policy of retaining technicians with 

pending disability-retirement claims. The Agency 

informed the Union that it was complying with 

2020 TPR 715, under which the Agency would promptly 

separate technicians who lost military membership 

without exception for pending disability claims. 

The Union filed a grievance challenging the 

Agency’s implementation of the 2020 TPR 715, including 

the Agency’s separation of the technician. The grievance 

alleged the Agency violated Article 20, Section 2 of the 

parties’ agreement (Article 20), which states that “[i]f it is 

impossible for any incumbent to meet the regulatory 

requirements or qualifications standards, they must be 

removed from the position by appropriate personnel action 

in accordance with Technician Personnel Regulation 

6 Exception, Attach. 8, 2020 TPR 715 at 2. 7 32 U.S.C. § 709(f)(6) provides that a technician who is 

terminated “shall be notified [of the termination] in writing” and, 

except in circumstances not relevant here, “such notification shall 

be given at least [thirty] days before the termination date of such 

employment.”
73 FLRA No. 159 Decisions of the Federal Labor Relations Authority 813

(TPR) 700 series.”8 In its grievance, the Union argued that 

Article 20 required the Agency to apply the TPR in effect 

when the parties executed the collective-bargaining 

agreement. Therefore, the Union alleged the Agency 

violated § 7116(a)(7) of the Statute by attempting to 

enforce a rule or regulation in conflict with the parties’ 

agreement. The grievance also asserted that the Agency’s 

departure from longstanding policy was arbitrary, 

capricious, and unlawful under Section 706(2)(A) and “the 

law of grievance[ ]arbitration.”9

 The parties proceeded to 

arbitration, where they did not stipulate to the issues.10 

At the outset of the award, the Arbitrator noted 

the Union did not respond when the Agency provided 

notice and an opportunity to bargain regarding 

implementation of the 2020 TPR 715. The Arbitrator 

found the Union’s argument that the Agency erred in its 

application of 2020 TPR 715 relied on policies that were 

no longer applicable. The Arbitrator rejected the Union’s 

argument that a 2003 OPM policy permitted the Agency to 

retain technicians with pending disability-retirement 

claims, despite the bureau’s updated regulations. Instead, 

the Arbitrator found the National Defense Authorization 

Act for Fiscal Year 2016 (NDAA) suspended the previous 

procedure of retaining those technicians.

The Arbitrator also rejected the Union’s 

argument that the Agency was refusing to follow past 

practice. Instead, the Arbitrator found that the Agency was 

correctly following the 2020 TPR 715. Therefore, he 

concluded the Agency’s actions were not arbitrary, 

capricious, or an abuse of its discretion. The Arbitrator 

further concluded that the Agency did not violate the 

parties’ agreement, the Statute, or the APA by terminating 

8 Opp’n, Ex. A7, Kentucky National Guard, Joint 

Labor-Management Agreement (2012) at 48. 9 Exception, Attach. 9, Grievance Notice to Agency at 1. 

Although the Agency’s termination of the technician was the 

event that caused the Union to file the grievance, we find that the 

gravamen of the grievance is that the Agency violated the Statute 

and the parties’ agreement by implementing a new policy 

concerning the termination of technicians who have lost military 

membership but have pending disability-retirement claims. See 

id. at 1-2; see also U.S. Dep’t of VA, Veterans Benefits Admin., 

71 FLRA 1113, 1114 (2020) (Veterans) (Chairman Kiko 

dissenting in part on other grounds) (concluding that Authority 

had jurisdiction where “gravamen” of grievance challenged 

agency’s decision to replace prior procedures with new policies, 

notwithstanding that implementation of the new policies 

involved removals). Accordingly, we find the grievance is not 

“inextricably intertwined with” matters covered under 5 U.S.C. 

§§ 4303 and 7512. Veterans, 71 FLRA at 1115. 10 Although the Agency argued that the grievance was untimely 

under the parties’ agreement, and thus not procedurally 

arbitrable, the Arbitrator rejected that argument. Because no 

exceptions challenge this determination, we do not discuss it 

further.

the technician.11 Consequently, the Arbitrator denied the 

grievance. 

The Union filed its exception to the award on 

June 24, 2022. The Agency filed an opposition to the 

Union’s exception on July 8, 2022.

III. Analysis and Conclusion: The award is not 

contrary to law.

The Union argues that the award is contrary to 

law for several reasons.12 When an exception involves an 

award’s consistency with law, rule, or regulation, the 

Authority reviews any question of law raised by the 

exception and the award de novo.13 In applying the 

standard of de novo review, the Authority assesses 

whether an arbitrator’s legal conclusions are consistent 

with the applicable standard of law.14 In making that 

assessment, the Authority defers to the arbitrator’s 

underlying factual findings unless the excepting party 

establishes that they are nonfacts.15

First, the Union claims the award is contrary to 

law because it fails to address several arguments the Union 

raised to the Arbitrator. Specifically, the Union alleges the 

Arbitrator “never addressed” the Union’s argument that 

Section 709(f)(1)(A) did not prohibit the Agency from 

exercising the “discretion . . . authorized by OPM 

procedures” to continue its practice of retaining 

technicians until OPM adjudicated their 

disability-retirement claims.16 The Union also contends 

11 Member Kiko notes that the Agency’s termination of the 

grievant from dual-status employment as a result of his lost 

military membership “concern[ed] [his] fitness for duty” within 

the meaning of 32 U.S.C. § 709(f)(4). See Dyer v. Dep’t of the 

Air Force, 971 F.3d 1377, 1384 (Fed. Cir. 2020). As a result, 

§ 709(f)(4) precludes any right to appeal the termination “beyond 

the adjutant general.” 32 U.S.C. § 709(f)(4) (“a right of appeal . 

. . shall not extend beyond the adjutant general of the jurisdiction 

concerned when the appeal . . . concerns fitness for duty”); see 

Dyer, 971 F.3d at 1384 (holding § 709(f)(4) precluded Merit 

Systems Protection Board jurisdiction over termination of 

technician from dual-status employment due to separation from 

National Guard). However, because the “gravamen” of the 

grievance concerned the Agency’s implementation of a new 

policy, see supra note 9, and the Arbitrator did not separately 

consider the propriety of the grievant’s termination, she finds it 

unnecessary to disturb the award on the basis that the grievant’s 

separation was not appealable beyond the adjutant general. 

12 Exception Br. at 16-17. 13 AFGE, Council 222, 73 FLRA 54, 55 (2022) (Council 222) 

(citing U.S. Dep’t of the Interior, Bureau of Land Mgmt., Eugene 

Dist., Portland, Ore., 68 FLRA 178, 180 (2015) (Interior)). 14 Id. (citing Interior, 68 FLRA at 180). 15 Id. (citing Interior, 68 FLRA at 180-81). 16 Exception Br. at 16.
814 Decisions of the Federal Labor Relations Authority 73 FLRA No. 159

the award is contrary to law because the Arbitrator “failed 

to decide the Union’s severance pay claim.”17

Under Authority precedent, arbitrators are not 

required to set forth specific findings, discuss all 

allegations in a grievance,18 or specifically address every 

argument raised by a party.19 Correspondingly, an 

arbitrator’s failure to discuss specific arguments does not 

establish that the arbitrator did not consider them.20 

Accordingly, the Arbitrator’s failure to explicitly address 

some of the Union’s arguments does not provide a basis 

for finding the award contrary to law. Moreover, the 

parties did not stipulate, and the Arbitrator did not frame, 

an issue regarding severance pay, and the Union did not 

file an exceeded-authority exception to the award.21

The Union also argues the award is contrary to 

law because the Arbitrator “failed to recognize” that the 

Agency’s change in its interpretation of 

Section 709(f)(1)(A) was “arbitrary and capricious” – and 

“therefore in violation of [Section 706(2)(A)] and the law 

of arbitration under 5 U.S.C. § 7121(b)(1)(C)(iii)” –

because the change was “not contemporaneously and 

sufficiently explained.”22 Section 7121(b)(1)(C)(iii) of 

the Statute states that any negotiated grievance procedure 

must include procedures that “provide that any grievance 

not satisfactorily settled under the negotiated grievance 

procedure shall be subject to binding arbitration.”23 Here, 

17 Id. at 17. 18 See NFFE, Loc. 259, 45 FLRA 773, 777 (1992) (NFFE) (citing 

U.S. DOL, Wash., D.C., 41 FLRA 472, 476-77 (1991) (DOL)); 

see also U.S. Dep’t of Com., Pat. & Trademark Off., 41 FLRA 

1042, 1049 (1991) (citing DOL, 41 FLRA at 476-77). 19 U.S. Dep’t of HUD, 71 FLRA 616, 620 (2020) 

(Member DuBester concurring) (“arbitrators are not required to 

address every argument that is raised by the parties” (citing Haw. 

Fed. Emps. Metal Trades Council, 70 FLRA 324, 325 (2017); 

AFGE, Loc. 3911, 64 FLRA 686, 687-88 (2010)); NFFE, 

45 FLRA at 779 (citing U.S. Dep’t of the Army, Transp. Ctr, Fort 

Eustis, Va., 45 FLRA 480 (1992)). 20 See NFFE, 45 FLRA at 779. 21 AFGE, Loc. 2092, 73 FLRA 596, 597 (2023) (explaining that 

a basis for finding an arbitrator exceeded their authority is when 

“they fail to resolve an issue submitted to arbitration” (citing 

NTEU, Chapter 149, 73 FLRA 413, 415 (2023)). 22 Exception Br. at 16. 23 5 U.S.C. § 7121(b)(1)(C)(iii). 24 Award at 8. 25 See Fraternal Ord. of Police, Lodge No. 168, 70 FLRA 338, 

339 (2017) (denying contrary-to-law argument where excepting 

party failed to show that cited law required arbitrator to reach a 

different conclusion (citing Portsmouth Naval Shipyard, 

Portsmouth, N.H., 49 FLRA 1522, 1533 (1994)). 26 See, e.g., U.S. DOJ, Fed. BOP, 68 FLRA 311, 314 (2015) 

(rejecting argument that award was contrary to 

§ 7121(b)(1)(C)(iii) where excepting party did not cite to any 

authority supporting its argument that provision required the 

arbitrator to find that the grievance was barred).

27 5 U.S.C. § 706(2)(A).

the grievance was arbitrated, and the Arbitrator concluded 

that the Agency’s action was not arbitrary or capricious.24 

The Union does not explain how § 7121(b)(1)(C)(iii) 

required the Arbitrator to find otherwise as a matter of 

law.25 Therefore, the Union’s argument regarding 

§ 7121(b)(1)(C)(iii) does not demonstrate that the award is 

contrary to law.26

As for Section 706(2)(A), that provision of the 

APA concerns judicial review of agency actions and 

provides that a “reviewing court shall . . . set aside agency 

action, findings, and conclusions found to be . . . arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law.”27 However, the Union fails to 

establish either that the Arbitrator was required to apply 

the precedent cited by the Union28; or that the Arbitrator 

erred in finding the Agency’s reason for implementing the 

2020 TPR 715 – to comply with new bureau rules based 

on changes to law made in the NDAA29 – was rational.30 

Therefore, the Union has not demonstrated that the 

Arbitrator erred, as a matter of law, in concluding that the 

Agency did not act arbitrarily and capriciously. We note 

that neither party raises the extent to which Section 

706(2)(A) is properly applied in an arbitral context, so we 

do not address that matter.

The Union further argues the Arbitrator erred by 

“fail[ing] to recognize” that the bureau lacked authority to 

28 Exception Br. at 9 n.10 (arguing that the Arbitrator was 

required, but failed, to make specific findings in determining 

whether the Agency’s action was arbitrary and capricious (citing 

Nat’l Weather Serv. Emps. Org. v. FLRA, 966 F.3d 875 (D.C. 

Cir. 2020))); 7-8 (citing Burlington Truck Lines, Inc. v. United 

States, 371 U.S. 156 (1962); AFGE v FLRA, 25 F.4th 1 (D.C. Cir 

2022)); 8-9 (citing Bargmann v. Helms, 715 F.2d 638, 640-41 

(D.C. Cir. 1983); C.J. Cmty. Servs. v. FCC, 246 F.2d 660, 664 

(D.C. Cir. 1957)); 15 (citing Motor Vehicle Mfrs. Ass’n of the 

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983)). We note that “an arbitrator’s failure to apply a particular 

legal analysis ‘does not render [an] award deficient because . . . 

in applying the standard of de novo review, the Authority 

assesses whether the arbitrator’s legal conclusions are consistent 

with law, based on the underlying factual findings.’” AFGE, Loc. 

3911, 64 FLRA 686, 687 (2010) (quoting AFGE, Nat’l Border 

Patrol Council, 54 FLRA 905, 910 n.6 (1998)). 29 Award at 8. To the extent the Union argues that the bureau’s

change in statutory interpretation which led to the Agency’s 

implementation of 2020 TPR 715 was arbitrary and capricious, 

we note that the bureau is not a party in this case.

30 As the Authority has recently recognized, the standard that 

courts use to assess whether an agency action is arbitrary and 

capricious under Section 706(2)(A) is “highly deferential,” and 

an agency’s action is presumed valid if a rational basis for the 

action exists. U.S. DOL, Off. of Lab. Mgmt. Standards, Div. of 

Enf’t, Tracy Shanker, Chief, 73 FLRA 573, 577 (2023) (citing 

River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 

2009); Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976); Nat’l 

Mining Ass’n v. United Steel Workers, 985 F.3d 1309, 1320 

(11th Cir. 2021)).
73 FLRA No. 159 Decisions of the Federal Labor Relations Authority 815

“replace” the 2003 OPM policy because the matter fell 

“within OPM’s authority.”31 However, the Union did not 

provide a copy of the OPM policy.32 Moreover, the Union 

does not support its argument with citation to any 

governing legal authority. Therefore, we reject the 

Union’s argument as unsupported.33 

Finally, the Union challenges the Arbitrator’s 

finding that the NDAA suspended the Agency’s practice 

of retaining technicians. According to the Union, the 

Arbitrator “identified no applicable provision” to support 

this finding, and no such argument “was presented either 

in the grievance proceedings or to the [A]rbitrator.”34 

However, the Union has failed to set forth any argument 

or authority supporting its claims that the Arbitrator’s 

finding on this point was contrary to law. Thus, we also 

reject this argument as unsupported.35

Accordingly, we deny the Union’s contrary-tolaw exception.36

IV. Decision

We deny the Union’s exception.

31 Exception Br. at 16. 32 In its opposition, the Agency states that the “memorandum 

referenced is an outdated, National Guard Bureau (NGB) 

memorandum, not an Office of Personnel Memorandum 

(OPM).” Opp’n at 14.

33 5 C.F.R. § 2425.4(a) (exceptions must be “self-contained” and 

set forth “[a]rguments in support of the stated grounds, including 

specific references to the record, citations of authorities, and any 

other relevant documentation”); U.S. Dep’t of VA, John Pershing 

Veterans Admin., 71 FLRA 511, 512 (2020); AFGE, Loc. 3354, 

64 FLRA 330, 333 (2009) (Local 3354) (“when a party fails to 

provide any arguments or authority to support an exception, the 

Authority will deny the exception as a bare assertion” (citing U.S. 

DHS, U.S. CBP, Port of Seattle, Seattle, Wash., 60 FLRA 490, 

492 n.7 (2004) (Chairman Cabaniss concurring))). 34 Exception Br. at 17. 35 5 C.F.R. § 2425.4(a); Local 3354, 64 FLRA at 333.

36 Consistent with her concurrence in Laborers Int’l Union of 

N. Am., Loc. 1776, 73 FLRA 591, 595 (2023) (Concurring 

Opinion of Member Kiko), Member Kiko reiterates that she 

respects the decision of the United States Supreme Court 

concerning whether Adjutants General are “subject to the 

authority of the [Federal Labor Relations Authority] when acting 

in their capacities as supervisors of [national guard] dual-status 

technicians.” Ohio Adjutant Gen.’s Dep’t v. FLRA, 143 S. Ct. 

1193, 1201 (2023). Therefore, despite her previously expressed 

reservations on this issue, see, e.g., U.S. DOD, Ohio Nat’l Guard, 

71 FLRA 829, 833 (2020) (Member Abbott concurring in part) 

(Dissenting Opinion of Chairman Kiko), pet. for review denied 

sub nom. Ohio Adjutant Gen.’s Dep’t v. FLRA, 21 F.4th 401, 409 

(6th Cir. 2021), aff’d, 143 S. Ct. 1193, 1201 (2023), 

Member Kiko no longer raises jurisdictional objections to the 

Authority’s resolution of cases involving units of the national 

guard.