816 Decisions of the Federal Labor Relations Authority 73 FLRA No. 160

73 FLRA No. 160

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

FEDERAL DEPOSIT INSURANCE CORPORATION

(Agency)

0-AR-5904

_____

DECISION

February 29, 2024

_____

Before the Authority: Susan Tsui Grundmann, Chairman,

and Colleen Duffy Kiko, Member

(Chairman Grundmann concurring)

I. Statement of the Case

The parties modified their collective-bargaining 

agreement to expand telework availability through a 

program called the home-based option. Eight months 

later, the Agency sent a memorandum to all teleworking 

employees directing them to return to their official duty 

station at least once per pay period (the memo). The Union 

grieved, arguing the memo violated the new telework 

provision of the parties’ agreement (Article 20). 

Arbitrator Roger P. Kaplan issued an award finding (1) the 

Union failed to demonstrate the Agency violated 

Article 20, and (2) the Union’s interpretation of Article 20 

conflicted with management rights under § 7106 of the 

Federal Service Labor-Management Relations Statute (the 

Statute).1

The Union filed exceptions alleging the award is 

based on several nonfacts and conflicts with Authority 

precedent concerning unfair labor practices (ULPs) and 

management rights. Because the nonfact exceptions do 

not establish the Arbitrator relied on any clearly erroneous 

facts but for which he would have reached a different 

result, we deny them. Further, the Union does not 

establish the Agency committed a ULP. Regarding the 

management-rights exception, the Arbitrator’s 

management-rights analysis was one of two separate and 

independent grounds upon which he relied to deny the 

1 5 U.S.C. § 7106.

2 Award at 4 (quoting Art. 20).

3 Id. at 4 (quoting Art. 20, § 8(a)). 4 Id. at 5 (quoting Art. 20, § 11(c)). 5 Id. (quoting Art. 20, § 11(d)).

Union’s grievance. Since the Union does not establish the 

Arbitrator’s other rationale for denying the grievance is 

deficient, we do not consider the Union’s 

management-rights exception. 

II. Background and Arbitrator’s Award

During the COVID-19 pandemic, the Agency 

assigned all employees to mandatory telework. Also 

during this time, the parties agreed to reopen negotiations 

on several provisions of their collective-bargaining 

agreement, including Article 20—the telework provision. 

As part of the renegotiation, the parties modified

Article 20 by expanding a telework program called “the 

[h]ome[-b]ased option.”2

Article 20 states that the Agency will identify 

positions “for which the work can be performed effectively 

from a remote location without the need for the employee 

to regularly report to the assigned office,”3 and that those 

positions will be eligible for the home-based option. 

Although their official-duty stations would remain 

unchanged, home-based employees “will ordinarily 

perform their work responsibilities at their primary place 

of residence.”4

 However, Article 20 also provides that a 

“manager/supervisor has the right to direct [home-based] 

employees to report” to the office “when necessary to meet 

mission, staffing and workload requirements.”5

In August 2022, the Agency sent the memo to all

employees, announcing the Agency was requiring all 

employees to report to their official duty station at least 

once per pay period. The Union filed a grievance claiming

that, by issuing the memo, the Agency violated Article 20

and repudiated the parties’ agreement in violation of 

§ 7116 of the Statute.6

 The grievance went to arbitration, 

where the Arbitrator framed the issues as whether the 

Agency violated Article 20, or repudiated the parties’ 

agreement, when it issued the memo. 

At arbitration, the parties disputed how 

frequently—and under what circumstances—Article 20 

permitted the Agency to require a home-based employee 

to report to the office. In evaluating the parties’ competing 

interpretations, the Arbitrator found Article 20 

“ambiguous.”7

 The Arbitrator asserted that, as the 

grieving party, the Union had the “burden to prove its 

interpretation was the correct interpretation by [a] 

preponderance of the evidence.”8

The Arbitrator observed that the Union 

interpreted Article 20 as prohibiting the Agency from 

6 5 U.S.C. § 7116(a)(1), (5). 7 Award at 37; see also id. at 31 (noting that, while the parties 

“eventually agreed on the language [of Article 20, they did] no[t] 

agree[] on what the language meant”). 8 Id. at 37.
73 FLRA No. 160 Decisions of the Federal Labor Relations Authority 817

“requiring employees to report to the office on a preset 

schedule, [such as] once a pay period[ or] once a month.”9

 

He also noted that, while “[t]he Union did not offer a 

maximum number of times” management could direct 

employees to report, “the testimony of the Union witnesses 

indicated that four . . . times a year might” comply with 

Article 20.10 Thus, he concluded the Union’s 

interpretation of Article 20 “limit[s] when employees 

could be directed to come into the office to approximately 

four . . . times a year.”11 

As noted above, Article 20 provides that a 

“manager/supervisor has the right” to direct home-based 

employees to report to the office “when necessary” under 

certain circumstances.12 According to the Arbitrator, 

Union witnesses testified that the threshold for requiring a 

home-based employee to report to the office is similar to 

the circumstances under which the Agency could cancel 

“previously approved annual[-]leave requests.”13 The 

Arbitrator concluded that, under this Union interpretation 

of Article 20, the Agency could direct a home-based 

employee to report to an office only when the employee’s

supervisor determines that not reporting would cause “a 

severe impact on the [Agency’s] workload, staffing[,] or 

mission requirements.”14 The Arbitrator determined the 

Union’s interpretation “limit[s] what level of management 

can direct employees to come into the office” by requiring 

that supervisors—rather than upper-level Agency 

officials—individually apply the “severe[-]impact” 

standard to each employee directed to report.15

Conversely, the Arbitrator found the Agency’s 

interpretation of Article 20 contains “no frequency 

limitation” on its ability to direct employees to report.

16 

According to the Agency, a home-based employee could 

be directed to report once per pay period under Article 20 

because they still “would regularly be working from home 

nine . . . out of ten . . . workdays.”17 Moreover, the Agency 

claimed “the decision [to direct employees to report] could 

be made at any level” of the Agency based on mission, 

staffing, or workload, and without applying the Union’s 

severe-impact standard.

18 The Arbitrator determined the 

9 Id. at 27. 10 Id. 11 Id. at 29. 12 Id. at 5 (quoting Art. 20, § 11(d)). 13 Id. at 32. 14 Id. at 27 (emphasis added). 15 Id. at 30; see also id. at 27 (“The Union interprets [Article 20] 

as prohibiting executives and other upper[-]level management 

officials from directing employees to report to the office.”).

16 Id. at 18. 17 Id. at 25. 18 Id. at 19-20.

Agency’s interpretation of Article 20 provided Agency 

officials with “broad . . . but not . . . unfettered discretion” 

to direct employees to report to the office.19

After evaluating both parties’ evidence, the 

Arbitrator found the Union “failed to carry [its] burden” of 

demonstrating that it had the “correct interpretation by [a]

preponderance of the evidence.”20 Therefore, the 

Arbitrator rejected the Union’s interpretation of 

Article 20.

The Arbitrator also provided an “[a]lternative” 

rationale for rejecting the Union’s interpretation.

21

Relying on the Authority’s decision in National Treasury 

Employees Union (NTEU),

22 the Arbitrator stated that

provisions dictating the frequency of telework affect 

management’s rights to direct employees and assign work

under § 7106 of the Statute.

23 The Arbitrator

acknowledged that the United States Court of Appeals for 

the District of Columbia Circuit (D.C. Circuit) vacated that 

Authority decision. However, he asserted that NTEU “sets 

out the Authority’s thinking on management rights as they 

pertain to telework.”24 Finding the Union’s interpretation 

of Article 20 similar to the provision the Authority found 

unlawful in NTEU, the Arbitrator concluded the Authority 

would likely find the Union’s interpretation conflicts with 

management’s rights.

Based on the above, the Arbitrator concluded that 

the Agency neither violated Article 20, nor repudiated the 

parties’ agreement, and he denied the Union’s grievance.

The Union filed exceptions on July 5, 2023, and 

the Agency filed an opposition on August 3, 2023.

III. Analysis and Conclusions

A. The Union does not establish the award 

is based on nonfacts.

The Union alleges the award is based on nonfacts 

because the Arbitrator mischaracterized the Union’s 

19 Id. 20 Id. at 33, 37. 21 Id. at 30; see also Exceptions Br. at 31 (referring to the award’s

two discussion sections as “the Arbitrator’s [a]lternative 

[h]olding[s]”).

22 71 FLRA 703, 707 (2020) (Member DuBester dissenting in 

part), decision vacated & remanded in part sub nom. NTEU v. 

FLRA, 1 F.4th 1120, 1128 (D.C. Cir. 2021) (FLRA). 23 5 U.S.C. § 7106(a)(2)(A)-(B). 24 Award at 29. Although the D.C. Circuit remanded NTEU to 

the Authority for further proceedings, FLRA, 1 F.4th at 1128, the

parties subsequently settled their negotiability dispute. 
818 Decisions of the Federal Labor Relations Authority 73 FLRA No. 160

interpretation of Article 20 in four ways.

25 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.26 Disagreement with an 

arbitrator’s evaluation of evidence, including the weight to 

be accorded such evidence, does not provide a basis for 

finding that an award is based on a nonfact.27 

First, the Union argues the Arbitrator relied on a 

nonfact because the Union never claimed the standard for 

directing home-based employees to report to the office was 

the same as the standard for cancelling approved annual 

leave.

28 The Union claims it consistently argued the 

Agency could direct employees into the office if the 

Agency satisfies the “standard for approving or denying

annual leave” under Article 22, Section 2 (Section 2).

29 

According to the Union, the Arbitrator found the Union’s 

interpretation applied the “standard for cancelling

approved leave” in Article 22, Section 8 (Section 8).

30 

However, the Arbitrator relied on Union witness

testimony that the threshold for requiring a home-based 

employee to report to the office is similar to the 

circumstances under which the Agency could cancel 

previously approved annual-leave requests.31 To the 

extent the Union challenges the Arbitrator’s decision to

give weight to this testimony, that does not demonstrate 

the award is based on a nonfact.32 In any event, the

standards for denying annual leave under Section 2 and for 

cancelling approved annual leave under Section 8 are

identical: both require the Agency to demonstrate the 

leave would result in a “severe impact” on the Agency’s 

“workload, staffing, or mission requirements.”33 Thus, 

even if the Arbitrator erroneously found the Union relied 

25 Exceptions Br. at 18. 26 NTEU, Chapter 46, 73 FLRA 654, 655-56 (2023) (Chapter 46)

(citing AFGE, Loc. 4156, 73 FLRA 588, 590 (2023)). 27 Id. at 656 (citing AFGE, Loc. 12, 70 FLRA 582, 583 (2018)). 28 Exceptions Br. at 22-23. 29 Id. at 23. 30 Id. 31 Award at 32. 32 Chapter 46, 73 FLRA at 656. 33 Compare Opp’n, Attach. 2, Collective-Bargaining Agreement

at 79 (“Any annual leave request will be approved unless the 

[Agency] can show that to approve the leave would severely 

impact the [Agency’s] workload, staffing[,] or mission 

requirements.”), with id. at 81 (“Annual leave, once approved, 

will not be rescinded unless the rescission is necessitated by a 

severe impact on the [Agency’s] workload, staffing, or mission 

requirements.”). 34 See AFGE, Loc. 1395, 64 FLRA 622, 626 (2010) (denying 

nonfact exception where, even assuming arbitrator relied in part

on an expired memorandum of understanding, the excepting 

party did not demonstrate arbitrator would have reached a 

different result but for this alleged error); Bremerton Metal 

Trades Council, IAMAW, 63 FLRA 336, 338-39 (2009) (denying 

on the Section 8 standard, the Union does not establish the 

Arbitrator would have reached a different result but for this 

alleged nonfact. For these reasons, we deny this 

exception.

34

Second, the Union argues the Arbitrator erred in 

concluding the Union’s interpretation of Article 20 

“limit[s] what level of management can direct employees 

to come into the office.”35 According to the Union, any 

level of management may direct an employee to return to 

the office as long as the Agency official first conducts an 

“individualized assessment” of the “justification” for 

directing an employee to report based on workload, 

staffing, and mission requirements.

36 

At the same time, the Union also argues that 

upper-level Agency officials do not have sufficient 

knowledge to conduct this “individualized assessment.”37

The Union states that Article 20 “logically[] would require 

a supervisor’s assessment” before the Agency could direct 

an employee to report to the office because direct 

supervisors have the best understanding of an employee’s 

“work situation.”38 At arbitration, the Union claimed it 

would be “farcical” to interpret Article 20 as permitting 

upper-level officials to conduct this assessment.39 

Because the Union interprets Article 20 as “requir[ing] a 

supervisor’s assessment,”40 the Union does not 

demonstrate the Arbitrator erred in making the challenged 

finding. Consequently, we deny this exception.

41

Third, the Union argues the Arbitrator erred in 

finding the Union’s Article 20 interpretation “limit[s] 

when employees could be directed to come into the office 

to approximately four . . . times a year.”42 According to 

the Union, it does not interpret Article 20 as providing “an 

nonfact exception alleging arbitrator misunderstood aspects of 

grievance where excepting party did not demonstrate how the 

alleged misunderstanding caused the arbitrator to reach a 

different result).

35 Exceptions Br. at 21 (quoting Award at 30). 36 Id. at 19, 21. 37 Id. 38 Id. 39 Exceptions, Ex. H., Union’s Post-Hr’g Br. (Union’s Post-Hr’g 

Br.) at 24. 40 Exceptions Br. at 21; see also Award at 17 (noting Union 

testimony that how the home-based option operated in different 

offices “was up to the supervisors”). 41 See AFGE, Loc. 3369, 72 FLRA 158, 159 (2021) (Loc. 3369)

(denying nonfact exception where excepting party did not

demonstrate arbitrator’s factual findings were clearly erroneous); 

AFGE, Loc. 2076, 71 FLRA 1023, 1025 (2020) (Loc. 2076)

(Member DuBester concurring) (“[I]n the absence of evidence 

demonstrating that the [a]rbitrator’s conclusions are clearly 

erroneous,” excepting party did not show award based on 

nonfact).

42 Exceptions Br. at 18 (quoting Award at 29).
73 FLRA No. 160 Decisions of the Federal Labor Relations Authority 819

annual cap.”43 Instead, the Union claims Article 20 

permitsthe Agency to direct employees to report whenever

there is an individualized need for them to report.44

The Arbitrator found applying the individualizedneed standard in the manner the Union contemplated 

would result in a meaningful limitation on the number of 

occasions the Agency could call employees into the 

office.

45 Although the Arbitrator acknowledged that “the 

Union did not offer a maximum number” of such 

occasions, he credited a Union witness’s testimony that 

three or four times per year “might be allowable” under the 

Union’s interpretation of Article 20.

46 This finding is 

consistent with the Union argument to the Arbitrator that 

“[s]ome people participating in the [h]ome[-]based 

[o]ption might need to report to the office several times a 

year to perform their work effectively, while others might 

need only report one time that year.”47

Based on the evidence presented to him –

including the testimony of the Union’s own witnesses – the 

Arbitrator estimated the effect of the Union’s 

interpretation of Article 20 on the Agency’s operations.48 

The Union’s disagreement with the Arbitrator’s evaluation 

of the evidence in reaching this estimation does not 

establish the Arbitrator made a clearly erroneous factual 

finding. Consequently, we deny this exception.49

Fourth, the Union contends its Article 20 

interpretation does not, as the Arbitrator concluded, 

“eliminat[e] the option of [requiring employees to report 

to the office on] a set pattern.”50 According to the Union, 

this characterization of its position is erroneous because

the Union concedes “[t]here could be circumstances where 

an employee might need to report to the office in multiple 

consecutive pay period[s] . . . for some limited time.”51

The Union stresses that such an arrangement would be 

43 Id. at 19. 44 Id. 45 See Award at 29-30. 46 See id. at 13 (noting a Union witness testified she was required 

to report three or four times per year before the memo), 27 (“The 

Union did not offer a maximum number of times that would be 

allowable, but the testimony of the Union witnesses indicated 

that four . . . times a year might be allowable.”).

47 Union’s Post-Hr’g Br. at 9. 48 See Award at 29-30. 49 See Chapter 46, 73 FLRA at 656 (denying nonfact exception 

arguing arbitrator erred in not finding evidence sufficient because 

the excepting party “merely disagree[d] with the [a]rbitrator’s 

evaluation of the evidence”); Loc. 3369, 72 FLRA at 159 

(denying nonfact exception which merely challenged arbitrator’s 

evaluation of the evidence). 50 Exceptions Br. at 20. 51 Id.

permissible under its interpretation of Article 20 as long as 

the reporting was tied to specific circumstantial need and 

only “for a limited time.”52 However, the Union does not 

explain how such an “ad hoc”53 arrangement constitutes a 

set pattern of reporting. Further, the Union argued at 

arbitration, and maintains here,54 that any reporting 

requirement must be, “by definition, irregular” to comply 

with Article 20.55 Accordingly, the Union does not

establish the Arbitrator relied on a clearly erroneous fact, 

and we deny this exception.56

B. The Union does not establish the 

Agency repudiated the parties’ 

agreement.

The Union argues the award is contrary to law 

because the Arbitrator should have found the Agency 

repudiated the parties’ agreement when it sent the memo 

to employees.57 When an exception involves an award’s 

consistency with law, the Authority reviews any question 

of law raised by the exception and the award de novo.58 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.59 In 

resolving contrary-to-law exceptions, the Authority defers 

to the arbitrator’s interpretation of the parties’ agreement 

unless the award fails to draw its essence from the 

agreement.60

The Union’s grievance alleged that the Agency 

repudiated the parties’ agreement in violation of 

§ 7116(a)(1) and (5) of the Statute. 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.61 In a grievance alleging a ULP 

by an agency, the union bears the burden of proving the 

52 Id. 53 Id. at 26. 54 Id. (arguing Article 20 “created an arrangement under which 

[home-based] employees were based at home as a default, subject 

to irregular requirements to report to other work sites based on 

individualized, ad hoc operational needs” (emphasis omitted)). 55 Union’s Post-Hr’g Br. at 9. 56 See Loc. 3369, 72 FLRA at 159 (denying nonfact exception 

where excepting party did not demonstrate that the arbitrator’s 

factual findings were clearly erroneous); Loc. 2076, 71 FLRA at

1025 (same). 57 Exceptions Br. at 25. 58 U.S. Dep’t of the Army, Ariz. Dep’t of Emergency & Mil. Affs., 

Ariz. Army Nat’l Guard, 73 FLRA 617, 618 (2023) (citing 

AFGE, Council 222, 73 FLRA 54, 55 (2022)). 59 Id. 60 Consumer Fin. Prot. Bureau, 73 FLRA 670, 679 (2023). 61 U.S. DHS, U.S. CBP, 64 FLRA 916, 920 (2010).
820 Decisions of the Federal Labor Relations Authority 73 FLRA No. 160

elements of the alleged ULP by a preponderance of the 

evidence.62 

In determining whether a repudiation has 

occurred, the Authority first considers the nature and scope 

of the alleged breach of the agreement.63 “[U]nless there 

is a breach of an agreement, there can be no repudiation in 

violation of the Statute.”64 The Arbitrator rejected the 

Union’s interpretation of Article 20 and, consequently,

found the Agency did not breach that article by sending the 

memo.65 The Union does not argue the award fails to draw 

its essence from the parties’ agreement. Therefore, in 

assessing whether the award is contrary to law, we defer to 

the Arbitrator’s finding that the Agency did not breach the 

parties’ agreement.

66 As there is no breach, there can be 

no repudiation.67 Consequently, we deny this exception.68

C. The Union’s management-rights 

exception does not demonstrate the 

award is deficient.

The Union argues the Arbitrator’s 

management-rights analysis is contrary to law because the 

Arbitrator relied on NTEU.

69 The Authority has 

repeatedly held that when an arbitrator has based an award 

on separate and independent grounds, an appealing party 

must establish that all of the grounds are deficient before 

the Authority will set the award aside.70

The Arbitrator denied the Union’s grievance on 

two “[a]lternative” grounds.

71 First, the Arbitrator found 

the Agency did not violate Article 20, because the Union 

did not carry its “burden to prove its interpretation was the 

correct interpretation by [a] preponderance of the 

evidence.”72 Second, relying on the Authority’s reasoning 

62 Id. 63 Dep’t of the Air Force, 375th Mission Support Squadron, Scott 

Air Force Base, Ill., 51 FLRA 858, 862 (1996). 64 Ass’n of Civilian Technicians, N.Y. State Council, 61 FLRA 

664, 666 n.4 (2005) (ACT); see also NTEU, 63 FLRA 70, 74 

(2009) (NTEU II) (finding no repudiation where no breach of the 

agreement because a “necessary element of an unlawful 

repudiation is a clear and patent breach of an agreement”). 65 Award at 33 (“The [Union] had the burden of proof to establish 

that its interpretation was the correct interpretation . . . . I find 

that it failed to carry that burden.”); id. at 37-38 (finding the 

Agency did not violate Article 20 or repudiate the parties’ 

agreement).

66 See U.S. DOJ, Fed. BOP, Fed. Corr. Inst.., Dublin, Cal., 

71 FLRA 1172, 1176 n.46 (2020) (Member DuBester dissenting

in part on other grounds) (applying arbitrator’s interpretation of 

parties’ agreement in resolving contrary-to-law exception 

because excepting party did not demonstrate award failed to draw 

its essence from agreement). 67 ACT, 61 FLRA at 666 n.4. 68 See NTEU II, 63 FLRA at 74 (rejecting repudiation argument 

where arbitrator found “there had been no breach” and excepting 

party did not demonstrate this finding failed to draw its essence 

from the parties’ agreement).

in NTEU,

73 the Arbitrator found the Union’s interpretation 

of Article 20 conflicted with management’s rights under 

§ 7106 of the Statute.74 

As explained above, we find that none of the 

Union’s exceptions demonstrate the Arbitrator’s first 

rationale is deficient.

75 That rationale provides a sufficient 

basis for the Arbitrator’s denial of the grievance. Thus, the 

award would stand regardless of whether the Arbitrator’s 

second rationale for denying the grievance—including his 

reliance on NTEU—is deficient. Accordingly, it is 

unnecessary to consider the Union’s management-rights 

exception, and we do not consider it.

76

V. Decision

We deny the Union’s exceptions.

69 Exceptions Br. at 12. 70 Fraternal Ord. of Police, DC Lodge 1, 73 FLRA 408, 412 

(2023) (Lodge). 71 Award at 30; see also Exceptions Br. at 31 (discussing “the 

Arbitrator’s [a]lternative [h]olding[s]”).

72 Award at 37. 73 Id. at 28 (citing NTEU, 71 FLRA at 707). 74 Id. at 36. 75 See section III.A. (denying exceptions arguing Arbitrator’s 

characterization of Union’s Article 20 interpretation was based 

on nonfacts); section III.B. (denying Union’s repudiation 

argument because it did not successfully challenge the 

Arbitrator’s finding that the Agency did not breach Article 20). 76 See Lodge, 73 FLRA at 412 (declining to consider

contrary-to-law exception where arbitrator based award on 

separate and independent grounds and excepting party 

challenged only one of those grounds); U.S. DOJ, Fed. BOP, 

Fed. Corr. Inst.., Englewood, Colo., 69 FLRA 474, 478-79 

(2016) (declining to consider exception because the Authority 

was denying all exceptions challenging one of the arbitrator’s 

separate and independent grounds for the award).
73 FLRA No. 160 Decisions of the Federal Labor Relations Authority 821

Chairman Grundmann, concurring:

I agree with the decision in all respects. I write 

separately simply to note that I was not a Member when 

the Authority issued NTEU* and, thus, I did not participate 

in that case. However, I agree that we need not resolve the 

Union’s exception challenging the Arbitrator’s reliance on 

NTEU. As such, I express no opinion on whether that case 

was rightly decided.

Therefore, I concur.

* 71 FLRA 703, 707 (2020) (Member DuBester dissenting in 

part), decision vacated & remanded in part sub nom. NTEU v. 

FLRA, 1 F.4th 1120, 1128 (D.C. Cir. 2021).