73 FLRA No. 165 Decisions of the Federal Labor Relations Authority 839

73 FLRA No. 165

AMERICAN FEDERATION 

OF GOVERNMENT EMPLOYEES

LOCAL 480

COUNCIL OF PRISON LOCALS #33

(Union)

and

UNITED STATES 

DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL 

INSTITUTION McDOWELL

WELCH, WEST VIRGINIA

(Agency)

0-AR-5942

_____

DECISION

March 29, 2024

_____

Before the Authority: Susan Tsui Grundmann, Chairman,

and Colleen Duffy Kiko, Member

(Chairman Grundmann concurring)

I. Statement of the Case

Arbitrator Grant D. Shoub issued an award 

finding the Agency was not obligated to bargain over 

certain temporary assignments. The Union filed an 

exception arguing the award is contrary to law. Because 

the Union does not sufficiently support this exception, we 

deny it.

II. Background and Arbitrator’s Award

At the Agency’s prison facility, the Agency 

employs five unit secretaries across three residential units 

as follows: two in Unit A; two in Unit B; and one in 

Unit C. The Agency promoted the Unit C secretary and 

1 5 U.S.C. § 7106(b)(1) (nothing in § 7106 precludes parties from 

negotiating “at the election of the agency, on the numbers, types, 

and grades of employees or positions assigned to any 

organizational subdivision, work project, or tour of duty, or on 

the technology, methods, and means of performing work”).

2 Protecting the Federal Workforce, Exec. Order No. 14,003, 

86 Fed. Reg. 7,231, 7,232 (Jan. 22, 2021) (“The head of each 

agency[,] subject to the provisions of chapter 71 of title 5, 

assigned the other four secretaries to perform certain duties 

of the now-vacant Unit C position for eight weeks.

The Union requested the Agency bargain over the 

alleged change to these four secretaries’ duties. Claiming 

the secretaries were performing only their regular duties 

and that a temporary increase of work did not trigger a 

bargaining obligation, the Agency denied the request. The 

Union grieved, alleging the Agency’s denial violated the 

parties’ agreement, § 7106(b)(1) of the Federal Service 

Labor-Management Relations Statute (the Statute),1and 

§ 4 of Executive Order 14003 (the Executive Order).2 The 

grievance proceeded to arbitration, where the parties 

stipulated the following issue: whether “the Agency 

violate[d] the [parties’ agreement,] . . . § 7106, or [the] 

Executive Order” by refusing to bargain.3

Based on the evidence presented at arbitration, 

the Arbitrator found the Agency did not assign the four 

secretaries a new supervisor, and the secretaries performed 

work that “was no different” from their normal duties.4 

Relying on these findings, the Arbitrator concluded the 

parties’ agreement did not impose a bargaining obligation, 

because “the working conditions of the Unit A and Unit B 

[s]ecretaries were not affected.”5

The Arbitrator also considered the Statute, as well 

as the Executive Order’s instruction that agencies 

negotiate over the subjects set forth in § 7106(b)(1) of the 

Statute. However, he found “nothing in . . . § 7106(b)(1)

. . . require[d] the Agency to negotiate over the temporary 

increase in the normal and regular duties” of the 

secretaries.6 

Based on these conclusions, the Arbitrator found 

the Agency did not violate the parties’ agreement, the 

Statute, or the Executive Order by refusing to bargain over 

the temporary assignments. Therefore, he denied the 

grievance.

The Union filed an exception on January 2, 2024, 

and the Agency filed an opposition on February 5, 2024.

United States Code, shall elect to negotiate over the subjects set 

forth in 5 U.S.C. [§] 7106(b)(1) and shall instruct subordinate 

officials to do the same.”).

3 Award at 3.

4

Id. at 15.

5

Id. at 16 (internal quotation marks omitted).

6

Id. at 19.
840 Decisions of the Federal Labor Relations Authority 73 FLRA No. 165

III. Analysis and Conclusion: The Union does not 

demonstrate that the award is contrary to law.

The Union contends the award is contrary to the 

Executive Order and § 7106(b) of the Statute.7 The 

Union’s only explanation for this contention is: “The 

[A]gency failed to negotiate with the local [U]nion [over 

a] change in working conditions whereas the [A]rbitrator 

cites the Agency was not required to negotiate what merely 

was an increase in the regular duties of the Unit A and 

Unit B [s]ecretaries.”8 Section 2425.6(e)(1) of the 

Authority’s Regulations provides that an exception “may 

be subject to dismissal or denial if . . . [t]he excepting party 

fails to raise and support a ground” listed in 

§ 2425.6(a)-(c).9 Consistent with that section, when a 

party does not explain how an award is deficient, the 

Authority will deny the party’s exception as 

unsupported.10

The Arbitrator found the Agency temporarily 

increased the secretaries’ “normal and regular duties,” and 

concluded that neither § 7106(b)(1) of the Statute nor the 

Executive Order obligated the Agency to bargain under 

those circumstances.11 The Union’s exception does little 

more than express the Union’s disagreement with that 

conclusion.12 Although the Union cites the Executive 

Order and § 7106(b) of the Statute,13 the Union does 

not explain how the Arbitrator’s application of either of 

those authorities was erroneous or offer any rationale as to 

how those authorities obligated the Agency to bargain 

under the circumstances of this case. Thus, the Union does 

not adequately support its claim that the award is contrary 

to law. Accordingly, we deny this exception, as 

unsupported, under § 2425.6(e)(1) of the Authority’s 

Regulations.14

V. Decision

We deny the Union’s exception.

7 Exceptions Form at 4.

8

Id.

9 5 C.F.R. § 2425.6(e)(1).

10 U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Ashland, Ky., 73 FLRA 

775, 776 (2024) (citing NTEU, 70 FLRA 57, 60 (2016)).

11 Award at 19 (“[N]othing in . . . § 7106(b)(1) . . . requires the 

Agency to negotiate over the temporary increase in the normal 

and regular duties of the . . . [s]ecretaries.”).

12 See Exceptions Form at 4.

13 Id.

14 See AFGE, Loc. 153, 73 FLRA 792, 793 (2024) (Loc. 153) 

(denying contrary-to-law exception as unsupported where 

excepting party cited § 7106 of the Statute but did not explain 

how the award conflicted with that provision); AFGE, Loc. 922, 

67 FLRA 458, 459 (2014) (denying contrary-to-law exception as 

unsupported where excepting party cited numerous laws but did 

not explain how the award conflicted with those laws); see also 

AFGE, Loc. 12, 69 FLRA 360, 361 (2016) (denying exception 

that was not “adequately support[ed]”). We note that the 

Authority recently revised its test for assessing 

management-rights exceptions in cases “where the arbitrator has 

found a [collective-bargaining-agreement] violation.” 

Consumer Fin. Prot. Bureau, 73 FLRA 670, 676 (2023). As the 

Arbitrator did not find such a violation, that revised test does not 

apply here. E.g., Loc. 153, 73 FLRA at 793 n.25.
73 FLRA No. 165 Decisions of the Federal Labor Relations Authority 841

Chairman Grundmann, concurring:

For the reasons stated in the decision, I agree it is 

appropriate to deny the Union’s exception as unsupported. 

I write separately to note the following.

In denying the Union’s grievance, the Arbitrator 

relied on, among other things, the Authority’s decisions in 

U.S. DHS, U.S. CBP, El Paso, Texas (CBP El Paso),1and 

U.S. DOJ, Federal BOP, Federal Correctional Complex, 

Coleman, Florida (FCC Coleman).2 I was not a Member 

when the Authority issued those decisions and, thus, I did 

not participate in those cases. However, I note the 

U.S. Court of Appeals for the D.C. Circuit vacated the 

decision in CBP El Paso.

3

 Additionally, I am open to 

revisiting FCC Coleman in a future, appropriate case. 

Therefore, I concur. 

1

70 FLRA 501 (2018) (Member DuBester dissenting).

2

71 FLRA 790 (2020) (Member DuBester dissenting).

3 AFGE, AFL-CIO, Loc. 1929 v. FLRA, 961 F.3d 452 

(D.C. Cir. 2020).