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UNIQUE ATTRIBUTES OF 

FEDERAL SECTOR 

ARBITRATION

SFLERP

44th Annual Symposium

Arlington, Virginia

May 19, 2017
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Introduction & Welcome

ERNIE DUBESTER

Member, FLRA
THE STATUTE: 5 U.S.C. §§ 7101-7135

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ARBITRATION INITIATIVE

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ARBITRATION GUIDE

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FLRA WEBSITE

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UNIQUE ATTRIBUTES OF THE FEDERAL SECTOR

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FEDERAL SECTOR

PRIVATE SECTOR

• CONTRARY TO LAW

• MANAGEMENT 

RIGHTS

• REMEDIES
Foundations of Federal Sector Labor Arbitration 

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Issues of Arbitrability and Choice of 

Forum/Election of Remedies

SFLERP 44th Annual Symposium

May 19, 2017

Tabitha G. Macko

Senior Attorney

Office of Acting Chairman Patrick Pizzella
Public v. Private-Sector Arbitration

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 Federal-sector arbitration is statute-based:

 The Federal Service Labor-Management Relations Statute (Statute)

5 U.S.C. §§ 7101-7135

 In the federal sector, a CBA must include a negotiated 

grievance procedure (NGP) and provide for binding 

arbitration: § 7121(a)-(b) 

 See Independent Union of Pension Employees for Democracy & 

Justice, 68 FLRA 999, 1004-05 (September 2015)

 The NGP is the exclusive means to address disputes 

involving matters covered by, and not excluded from, the 

NGP, except when election of forum is allowed. 
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“Grievance” under § 7103(a)(9) - Broadly Defined

(A) Any complaint by any employee concerning any matter relating to the 

employment of the employee, or 

(B) Any complaint by any union concerning any matter related to the 

employment of an employee, or

(C) Any complaint by any employee, union, or agency concerning—

(i) The effect or interpretation, or claim of breach of a CBA 

(ii) Any claimed violation, misinterpretation, or misapplication of 

 any law, rule, or regulation affecting conditions of 

employment.

Federal-Sector Arbitration:

Grievances
Federal-Sector Arbitration:

Scope of Arbitration/Arbitrability

 Usually defined by the scope of the grievance.

 The parties may bargain to exclude certain issues from their 

agreement’s negotiated grievance procedure.

 NAGE, Local R4-45, 55 FLRA 695, 699 (1999)(agreement excluded complaints of 

discrimination from the grievance procedure, which arbitrator interpreted as 

racial discrimination).

 Statute excludes certain grievances, § 7121(c)):

(1) Prohibited political activities.

(2) Retirement, life insurance, or health insurance. 

(3) Suspension or removal for national security reasons.

(4) Examination, certification, or appointment. 

(5) Classification of any position that does not result in the reduction 

in grade or pay of the employee.

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Federal-Sector Arbitration:

Choice of Forum/Election of Remedies

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 Grievance or ULP Charge to the FLRA:

 § 7116(d); grievance is barred by ULP charge when:

 the same issue (facts & legal theories), 

 ULP charge filed earlier, AND 

 selection of forum was at discretion of (same)aggrieved party.

 Grievance or EEO (formal) complaint: 

 § 7121(d); grievance barred by EEO complaint when same subject matter and 

matter was raised earlier by employee’s timely election (written formal complaint).

 Grievance or MSPB appeal: 

 § 7121(e)(1): 

adverse actions under 5 USC § 7512 (removal, suspension greater than 14 days; 

reduction in grade; reduction in pay); certain performance-based actions under 

5 USC § 4303 (removals under PIPs). 

 Grievance or MSPB appeal: 

 § 7121(g): prohibited personnel practices (5 U.S.C. § 2302(b)(2)---

grievance or appeal to MSPB, or through OSC). 
Contrary to Law, Rules, or 

Regulations 

May 19, 2017

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Federal Labor Relations 

Authority
Federal-Sector Arbitration

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 As always, The Statute, The Statute, The Statute....

 5 U.S.C. §§ 7101-7135 (the Statute)

 5 U.S.C. § 7105(a)(2)(H): The Authority shall . . . 

resolve exceptions to arbitrator’s awards under 

section 7122 of this title. 

 Arbitrators can enforce laws and regulations, not just 

a collective-bargaining agreement (CBA) 

 (unless CBA or law excludes use of negotiated grievance procedure for a particular 

grievance)
Grounds for Review by the Authority

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 Contrary to law, rules, or regulations 

 5 U.S.C. § 7122(a)(1); 5 C.F.R. § 2425.6 (a)(1)

 The Authority reviews the challenged legal conclusions of the 

arbitrator “de novo”

 Authority does not have to agree with the rationale or analysis; it’s the 

conclusion that matters. 

 De Novo” means: the Authority assesses whether an arbitrator's legal 

conclusions are consistent with the applicable standard of law. 

 Deference to arbitrator’s factual findings, absent a successful 

“nonfact” challenge. 
Law, Rules, or Regulations

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 Contrary to law, rules, or regulations means:

 U.S. Constitution is a “law.”

 Indep. Union of Pension Employees for Democracy & Justice, 68 FLRA 999, 

1011-12 (2015)(First Amendment, union newsletter); Panama Canal Comm’n, 

33 FLRA 15, 20-22 (1988)(First Amendment, 10 day suspension); 

 U.S. Dep’t of VA, Nat’l Mem’l Cemetery of the Pac., 45 FLRA 1164, 1174-1179 

(1992)(due process, 5 day suspension).

 Statutes – federal, such as:

 The Statute 

 The Privacy Act

 Freedom of Information Act (FOIA)

 Fair Labor Standards Act (FLSA)

 Title VII
Law, Rules, or Regulations

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 Contrary to law, rules, or regulations also means:

 Regulations

 “Government-wide” rules and regulations :

 Rules, regulations, and official declarations of policy that 

are generally applicable throughout the federal 

government and are binding on the federal agencies and 

officials to whom they apply. 

 (easy hint – as issued by Office of Personnel Management 

(OPM) or General Services Administration (GSA))

 For example: the Federal Travel Regulations (a.k.a. 

FTR’s)
Law, Rules, or Regulations

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 Contrary to law, rules, or regulations includes:

 Agency regulations:

 Rules, regulations, and official declarations of policy prescribed by an agency 

to govern matters within that agency. 

 See U. S. Dep’t of the Army, Fort Campbell Dist., Third Region, Fort 

Campbell, Ky, 37 FLRA 186, 192-95 (1990)(Fort Campbell).

 that are“governing”

 1) “specifically linked” or set the standard or provide “dispositive 

criteria” or “substantively” address the matter in dispute; 

AND

 2) Do Not “conflict” with the collectively bargained/negotiated 

agreement. 
So Now What?.... 

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• Government-wide regulations govern a matter in 

dispute to which they apply, even if the same 

matter is covered by a collective bargaining 

agreement under the Statute. 

• See Fort Campbell, 37 FLRA at 193. 

• But, government-wide regulations are treated 

differently than agency-specific regulations, 

because.....

• Award must (only) be consistent with any agency rules or regulations 

that govern the matter in dispute;
Racking & Stacking the Regulations and 

Agreements...Even more to consider...

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 If a government-wide regulation preceded CBA, 

then the government-wide regulation governs 

(fairly typical situation).

 If CBA preceded the government-wide regulation, 

then the CBA governs until that CBA expires. 

 E.g., 65 FLRA 817, 819 (2011); § 7116(a)(7). 

 However, be mindful: gov’t-wide regulations that implement 

5 U.S.C. § 2302 (prohibited personnel practices). 

 See 60 FLRA 398, 399 n.6 (reciting the standard).
Don’t Forget the Agency Regulations

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 Agency rules or regulations “govern” matters only when there is no

applicable, conflicting CBA provision. 

 Where no conflict with CBA, then both CBA and agency rule may 

affect disposition of matter;

 See NTEU Chap. 215, 67 FLRA 183, 184-85 (2014); BOP, Coleman, Fla., 63 FLRA 191, 193-94 (2009).

But,......

 The collectively-bargained agreement, not agency

regulations, governs matters to which they both apply when 

there is a “conflict.” 

Because that is what both parties bargained for.
Rule on CBA Enforcement

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 Why does the agreement, not agency regulations, 

govern matters to which they both apply when there 

is a “conflict”?

 Reason: The Statute does not prevent an agency from 

agreeing to an agreement that alters or modifies an 

agency regulation. 

• See Fort Campbell, 37 FLRA 186, 194.

 The Authority defers to an arbitrator’s finding that 

the CBA governs. 

 E.g., U.S. Dep’t of Treasury, IRS, 64 FLRA 720, 721-22 (2010); 

U.S. Dep’t of the Army, Blue Grass Army Depot, Lexington, Ky., 41 

FLRA 1206, 1209-11 (1991).
Incorporation

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 An arbitrator may find that agency regulations have been incorporated into 

CBA. E.g., 51 FLRA 1210, 1217; 41 FLRA 284, 292-93.

 If CBA says matters will be conducted “in accordance with an agency regulation,” that wording 

“effectively incorporates” the regulation into the CBA.

 See 51 FLRA 1210, 1216-17 – unless the arbitrator indicates otherwise in the award;

 But see 65 FLRA 13, 17 n.5 (Arbitrator did not specifically determine agency program was incorporated 

and treated the two separately, and so, Authority reviewed de novo). 

 Review of the arbitrator’s interpretation and application of the incorporated 

agency regulations = essence standard. E.g., 65 FLRA 1004, 1008.

 “Essence standard” is deferential to the Arbitrator’s interpretation of the collectively bargaining agreement.
-HypotheticalContrary to Law, Rule or Regulation

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 CBA says: “In accordance with Federal Law, Government-wide 

regulation, and this Agreement, an environmental differential will 

be paid to eligible wage-grade employees who are exposed to hazard 

or physical hardships.”

 Agency regulation says: “Reduction of exposure to unusually 

severe hazards, ...to a level consistent with the accepted standards 

[in] Agency instructions, OSHA or other recognized national 

consensus standards.” 

 How would you resolve this grievance over EDP?
-HypotheticalContrary to Law, Rule or Regulation

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 For § 7122(a)(1), a “rule” or “regulation” includes 

government-wide regulations or governing 

agency rules or regulations. 

 An agency reg will “govern” when it specifically 

addresses the matter at issue and does not 

conflict with the CBA.

 See AFGE, Local 1617 and U.S. Dep’t of Air Force, San Antonio Air 

Logistics Center, Kelly Air Force Base, San Antonio, Tex., 58 FLRA 

63, 66 (2002) (then-Member Pope, dissenting).
THE END

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Questions,

Feedback,

&

Thank You 
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Management Rights

IN A NUTSHELL

Debbie Shrager

Senior Attorney

Office of Member DuBester
Management Rights

5 U.S.C. § 7106

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THRESHOLD ISSUES

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 DOES THE PROVISION AFFECT THE EXERCISE 

OF A MANAGEMENT RIGHT?

 IF YES, DOES THE PROVISION FALL UNDER AN 

EXCEPTION IN THE STATUTE?
5 U.S.C. § 7106(a)(1) - Management Rights

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Agencies have the right to 

determine: 

 * Mission

 * Budget

 * Number of Employees

 * Organization

 * Internal Security Practices
5 U.S.C. § 7106(a)(2) - Management Rights

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Agencies have the right in accordance with applicable 

laws—

 (A) To hire, assign, direct, layoff, and retain employees, to suspend, 

remove, reduce in grade or pay, or take other disciplinary action

(B) To assign work, contracting out, and to determine the personnel 

by which agency operations shall be conducted;

(C) To make selections for appointments from—among properly 

ranked and certified candidates for promotion; or any other 

appropriate source; and

(D) To take whatever actions may be necessary to carry out the 

agency mission during emergencies. 
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Management Rights in 

§§ 7106(a)(1) & (a)(2)

are “subject to” 

§ 7106(b)

§ 7106(b) - Management Rights Exceptions
§ 7106(b)(1) - Management Rights 

Exceptions

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Agencies are permitted to negotiate:

 Numbers, types, and grades of employees or

 Positions assigned to any subdivision, work 

project, tour of duty or

 Technology, methods, and means of 

performing work.
§ 7106(b)(2), (3) - Management Rights 

Exceptions

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Agencies are required to negotiate:

Procedures which management officials of the 

agency will observe in exercising any authority under 

7106(a)

and

Appropriate Arrangements for employees 

adversely affected by the exercise of any authority 

under 7106(a) by such management officials. 
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 Provision in which management has elected to bargain 

over subject in § 7106(b)(1).

 Provision involving procedures management will 

observe in exercising a right in § 7106(a). 

 (§ 7106(b)(2)).

 Provision that sets out an appropriate arrangement 

for employees adversely affected by the exercise of a 

management right in § 7106(a). 

 (§ 7106(b)(3))

ENFORCEABLE CONTRACT PROVISIONS 

AFFECTING A MANAGEMENT RIGHT
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Arbitral Remedies

&

Backpay
Arbitrator Remedial Discretion

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 Generally, arbitrators have great latitude to 

fashion remedies that are meaningful in the 

circumstances of particular cases.

 The parties don’t get to decide on the remedy.

 The Authority denies exceptions that merely attempt to 

substitute different remedy for the one the arbitrator 

awarded. 

 But there are more limitations than in the private 

sector.
Limitations on Arbitrators Remedies:

Management Rights

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 Broad discretion to formulate a remedy for a 

meritorious grievance even if it affects a 

management right.

 An award may provide a remedy for 

 A violation of applicable law under § 7106(a)(2) (e.g. hire, assign, 

select)

 or

 A violation of a provision negotiated under § 7106(b) 

(Procedures, Appropriate Arrangements)
Limitations on Arbitrator Remedies:

Scope of the Issues

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 A remedy cannot exceed the scope of 

the grievance or the issues before the 

arbitrator.

 Ex. If the issue involves only a single employee, 

then the remedy should be limited to that 

individual.
Limitations on Arbitrator Remedies:

Scope of the Issues

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A remedy must address:

The violated contract provision or legal 

provision (law, rule, or regulation)

 The harm being remedied. 
Limitations on Arbitrator Remedies:

Scope of the Issues

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If the arbitrator does not find a 

violation, then the arbitrator may 

not award a remedy.
Limitations on Arbitral Remedies:

Applicable Laws and Regulations 

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Money Changes Everything!

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Limitations on Arbitratral Remedies:

Sovereign Immunity

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Rex Non Potest Peccare 
Monetary Remedies

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 Must be an explicit, unequivocal, unambiguous

statutory waiver of sovereign immunity. 

 The Federal Service Labor-Management Relations 

Statute (5 U.S.C. §§ 7101-7135) does not waive 

sovereign immunity

 Examples of explicit waiver:

 Back Pay Act, 5 U.S.C. § 5596 (BPA).

 Fair Labor Standards Act, 29 U.S.C. §§ 201-219.
The Back Pay Act (5 U.S.C. § 5596)

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An award of backpay is authorized---and mandatory --

-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 . . .

(3) the withdrawal or reduction of the grievant’s pay, 

allowances, or differentials

See also Definitions, 5 C.F.R. § 550.803.
Equitable Remedies 

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• No sovereign immunity waiver required for 

monetary remedies that are “equitable” in 

nature. 

o Even if the remedy is a financial expense for the 

agency does not itself mean the remedy violates 

sovereign immunity

• Attempt to give the grievant the very thing to 

which she was entitled. (E.g., Fort Benjamin Harrison 

v. FLRA, 56 F.3d 273 (D.C. Cir. 1995)
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REMEDIES HYPOTHETICAL

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Would you grant the Union’s 

request for the cleaning fee 

reimbursement?
REMEDIES HYPOTHETICAL

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What if the Union asked that the Agency 

be required to spend money on a 

contractor to clean the Union’s office? 
REMEDIES HYPOTHETICAL SUMMARY

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 There is no right to money damages in a suit against the 

United States without a waiver of sovereign immunity. 

 A CBA may require monetary payments to employees 

only where there is an underlying statutory authority for 

the payment.

 But, sovereign immunity does not bar equitable 

remedies. 

 Monetary damages v. an equitable remedy that imposes a financial 

cost on the agency.

• 

CASE : 64 FLRA 325
Slides Available on FLRA.gov

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https://www.flra.gov/resources-training/training/course-materials
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