822 Decisions of the Federal Labor Relations Authority 73 FLRA No. 161

73 FLRA No. 161 

UNITED STATES 

DEPARTMENT OF AGRICULTURE

FOOD AND NUTRITION SERVICE

(Agency)

and

NATIONAL TREASURY 

EMPLOYEES UNION

(Union)

0-AR-5787

_____

DECISION

March 6, 2024

_____

Before the Authority: Susan Tsui Grundmann, Chairman,

and Colleen Duffy Kiko, Member

I. Statement of the Case

After the Agency unilaterally extended several 

employees’ details, Arbitrator M. David Vaughn issued an 

award finding the Agency violated the parties’ agreement 

and § 7116(a)(1) and (5) of the Federal Service 

Labor-Management Relations Statute (the Statute).1

 The 

1 5 U.S.C. § 7116(a)(1), (5).

2 Award at 6.

3 Id.

4 Id. (quoting Art. 13, § 13.01); see Exceptions, Attach. 3, 

Collective-Bargaining Agreement (CBA) at 42. 5 Section 13.02 provides, in pertinent part:

(1) Selection for details will be accomplished in a fair 

and equitable manner.

(2) Details will not be used as discipline and the 

[Agency] will give reasonable consideration to 

assertions by an employee that the detail will 

cause significant personal hardship.

(3) . . . When the [Agency] determines that a 

detail assignment, lasting more than [thirty] 

days, is needed to correct a staffing 

imbalance or because of workload or training 

needs, and merit promotion competition does 

not apply; the [Agency] agrees to post the 

detail using the following procedures:

(a) The [Agency] will identify the 

position or positions to be detailed.

(b) The [Agency] shall seek 

volunteers via electronic media (e.g., e-mail) 

solicitation that shall include pertinent 

information regarding the detail opportunity 

such as . . . the expected duration . . . .

Agency filed exceptions to the award on essence, nonfact, 

and contrary-to-law grounds. For the reasons explained 

below, we partially dismiss and partially deny the 

exceptions.

II. Background and Arbitrator’s Award

The Agency posted notices of detail opportunities 

for employees. The notices stated the details were 

“not expected to exceed 120 days.”2

 After employees 

applied, the Agency made selections and notified the 

selectees the details were “not to exceed 120 days.”3

 

Shortly before the end of the 120-day detail period, the 

Agency informed several of the employees that it was 

extending their details for an additional 120 days. The 

Agency did not post notices of the extensions, solicit 

volunteers, assess any applicants, or notify the Union of 

the extensions. 

The Union filed a grievance, which went to 

arbitration. In his award, the Arbitrator acknowledged the 

Agency’s right to detail employees. However, he also 

noted that Article 13 of the parties’ agreement governs the 

parties’ obligations concerning details. For example, 

Article 13, Section 13.01 of the parties’ agreement requires 

the Agency to “attempt to keep details within the shortest 

practicable time limits” and to comply with 

“merit[-]promotion[-]plan” requirements.4

 Additionally, 

Article 13, Section 13.02 of the agreement provides that 

details lasting more than thirty days must be posted, and 

requires the Agency to follow certain procedures in 

soliciting, considering, and selecting applicants –

including stating the details’ expected duration.5

 

(c) The [Agency] will solicit 

volunteers in the following order until the 

detail is filled . . . .

(d) The [Agency] will consider all 

employees who have indicated an interest in 

the detail. In determining who will be 

detailed the [Agency] will consider the 

following factors: . . . .

(iv) Whether the 

employee has had a detail opportunity in the 

past twelve months[.] . . .

(4) In cases of emergency, extreme 

hardship[,] or exigent circumstances, the 

[Agency] may detail an employee without 

posting the affected position. Details which 

were not posted due to these reasons will be 

posted within 120 days according to the 

procedure in Section 13.02(3).

(5) The [Agency] agrees to 

contemporaneously notify . . . local chapter 

presidents of all detail solicitations at the 

time of posting and the employees ultimately 

selected for details that are within their 

jurisdiction. . . .

CBA at 42-43.
73 FLRA No. 161 Decisions of the Federal Labor Relations Authority 823

The Agency argued that “since it utilized 

[Article 13’s] procedure[s] when it created the original 

details, it could extend them without doing so again.”6

 The 

Arbitrator disagreed. He determined that, although the 

agreement allows the Agency to establish a detail’s length, 

“there is no provision to extend such a detail.”7

 The 

Arbitrator found the Agency’s notices to the detail 

selectees contained “an express, 

‘not[-]to[-]exceed[-]120-day’ limit,” which the Arbitrator 

interpreted as meaning the details could not be extended 

beyond 120 days.8

 Accordingly, the Arbitrator concluded 

that the Agency was required to – but did not – comply 

with Article 13’s procedural requirements concerning the 

details affected by the extensions. 

The Arbitrator also observed that Article 13 

requires the Agency to give reasonable consideration to 

employees’ claims that their details would cause 

significant personal hardship.9

 The Arbitrator determined 

that “at least one employee requested not to extend [his] 

detail, but . . . the Agency directed him to continue without 

exploring the reasons or giving reasonable consideration 

to them.”10

Further, the Arbitrator determined the agreement 

requires the Agency to notify the Union of all detail-notice 

solicitations, reasons for the details, the employees 

selected, and the details’ durations. The Arbitrator found 

that the Agency “disregarded” these obligations, thereby 

violating both the parties’ agreement and the Statute.11

The Arbitrator rejected an Agency argument that 

there was an Agency-wide and government-wide 

“past practice” of extending details that permitted the 

Agency’s actions.12 Specifically, the Arbitrator 

determined the Agency did not “submit evidence of any 

such extensions or evidence that the Union was aware of 

or acquiesced in any such extensions.”13 While noting 

Agency testimony that extensions were “common,” the 

Arbitrator found “the Agency did not submit even a single 

specific example of details which have been extended, 

either government-wide or Agency-specific.”14 The 

Arbitrator further found “[t]here is no such thing as a 

government-wide past practice to fill in blanks in a specific 

collective[-]bargaining agreement, let alone to override 

language in such [an] agreement.”15 The Arbitrator 

6 Award at 10.

7 Id. at 12 (emphasis added). 8 Id. 9 Id. at 13; see CBA at 42 (“[T]he [Agency] will give reasonable 

consideration to assertions by an employee that [a] detail will

cause significant personal hardship.”).

10 Award at 13. 11 Id. at 14. 12 Id. at 12-13. 13 Id. at 12. 14 Id.

concluded, “The Agency’s general and conclusory 

assertions are insufficient to constitute even prima facie 

evidence of the existence of a practice” and, thus, 

“[t]he Agency failed to meet its burdens.”16

The Arbitrator also rejected the Agency’s 

argument that the “efficiency” it gained in unilaterally 

extending the details justified bypassing Article 13’s 

procedures.17 The Arbitrator noted that Section 13.02 

contains a “limited exception” to the posting requirement 

for emergency, hardship, or exigent circumstances, but he 

found that “efficiency” did not fall within that exception 

and that the Agency had not argued the extensions were 

necessitated by an emergency. 18

In sum, the Arbitrator concluded the Agency 

violated Article 13 of the parties’ agreement by: 

unilaterally extending employees’ details from 120 days to 

240 days; failing to give reasonable consideration to one 

employee’s request to be excused from his detail 

extension; and failing to give the Union notice and 

opportunity to consult or bargain regarding the extensions. 

The Arbitrator also concluded the Agency violated 

§ 7116(a)(1) and (5) of the Statute when it unilaterally 

extended the details without giving the Union notice and 

an opportunity to consult or negotiate concerning the 

changes. 

The Agency filed exceptions to the award on 

December 21, 2021, and the Union filed an opposition on 

January 20, 2022. Subsequently, the Authority issued an 

order permitting the parties to file supplemental briefs 

addressing the Authority’s revised test – set forth in 

Consumer Financial Protection Bureau (CFPB) 19 – for 

resolving management-rights exceptions to arbitration 

awards. Both parties filed supplemental briefs on 

October 27, 2023.

III. Preliminary Matter: §§ 2425.4(c) and 2429.5

of the Authority Regulations bar part of the 

Agency’s exceptions.

The Agency argues the award is contrary to the 

Details Act20 because that statute gives the Agency the 

right to extend details beyond 120 days.21 Under 

§§ 2425.4(c) and 2429.5 of the Authority’s Regulations, 

15 Id. at 12-13. 16 Id. at 13. 17 Id. 18 Id. (finding “no assertion, let alone proof, that [emergency] 

conditions existed in the detail extensions at issue”); see also id. 

(reasoning that “[t]he inclusion of a limited exception for 

emergencies implies that no further exceptions were intended”).

19 73 FLRA 670 (2023). 20 5 U.S.C. § 3341. 21 Exceptions Br. at 3-5.
824 Decisions of the Federal Labor Relations Authority 73 FLRA No. 161

the Authority will not consider any arguments that could 

have been, but were not, presented to the arbitrator.22 

At arbitration, the parties disputed whether the Agency 

had authority to extend the details beyond 120 days.23 

Therefore, the Agency could have argued, at arbitration, 

that the Details Act gave it such authority. There is no 

record evidence the Agency did so. As such, consistent 

with §§ 2425.4(c) and 2429.5, we dismiss the exception 

regarding the Details Act.24

IV. Analysis and Conclusions

A. The award draws its essence from the 

parties’ agreement.

The Agency argues the award fails to draw its 

essence from the parties’ agreement.25 The Authority will 

find an award fails to draw its essence from a 

collective-bargaining agreement when the appealing party 

establishes the award: (1) cannot in any rational way be 

derived from the agreement; (2) is so unfounded in reason 

and fact and so unconnected with the wording and 

purposes of the agreement as to manifest an infidelity to 

the obligation of the arbitrator; (3) does not represent a 

plausible interpretation of the agreement; or (4) evidences 

a manifest disregard of the agreement.26 Mere 

disagreement with the arbitrator’s interpretation does not 

establish the award fails to draw its essence from the 

agreement.27 Further, exceptions that are based on a 

misinterpretation of an award do not provide a basis for 

finding the award deficient on essence grounds.28 

The Agency argues the Arbitrator drew the wrong 

conclusion from the absence of contract wording about 

extending details.29 According to the Agency, it has a 

legal right to extend details, and the Arbitrator effectively, 

and incorrectly, found: (1) the Agency “voluntarily 

relinquished its right to extend details, so that,” for the 

Agency, “extensions no longer exist”; and (2) “unless the 

[agreement] contains language specifically stating that the 

Agency has a right to do something that it already has a 

22 5 C.F.R. §§ 2425.4(c), 2429.5; see U.S. Dep’t of the Army, 

U.S. Army Garrison, Picatinny Arsenal, N.J., 73 FLRA 700, 701 

(2023) (Picatinny). 23 Award at 8-9 (Union argued detail extensions violated the 

parties’ agreement and the Statute); id. at 10 (Agency argued it 

was permitted to extend details without following the contractual 

procedures). 

24 See, e.g., Picatinny, 73 FLRA at 701 (dismissing arguments 

that excepting party could have raised, but failed to raise, 

at arbitration). 25 Exceptions Br. at 7-9. 26 AFGE, Loc. 2344, 73 FLRA 765, 766 (2023). 27 Fed. Educ. Ass’n, Stateside Region, 73 FLRA 747, 749 (2023) 

(FEA). 28 SSA, 70 FLRA 227, 230 (2017) (SSA). 29 Exceptions Br. at 8-9 (citing Award at 12); see also Award 

at 12 (finding that the Agency’s contractual right to set the length 

legal right to do, that right no longer exists.”30 In the latter 

regard, the Agency notes Article 2, Section 2.01 of the 

agreement provides that laws and government-wide 

regulations govern the agreement’s interpretation.31 The 

Agency asserts Article 2 required the Arbitrator to rely on 

the Agency’s purported legal right to extend details when 

interpreting Article 13. Additionally, the Agency asserts 

Article 13’s procedural requirements apply only when the 

Agency initiates a detail.32 Because Article 13 “says 

nothing about extensions,” the Agency claims the 

Arbitrator erred in applying it to the detail extensions 

at issue.33 

The Arbitrator did not find the Agency 

“relinquished” its right to extend details or that 

“extensions no longer exist.”34 Rather, he found the 

parties contractually limited the Agency’s ability to extend 

details by negotiating Article 13. Enforcing contract 

provisions requiring the Agency to, for example, give 

reasonable consideration to employee assertions about the 

hardship caused by detail extensions,35 or notify the Union 

of detail extensions,36 does not constitute a finding that the 

Agency cannot extend details. Nor did the Arbitrator find 

that, in order to retain statutory rights, the Agency needed 

to expressly do so in the agreement. The Agency’s 

contrary arguments misinterpret the award and, as such, do 

not demonstrate the award fails to draw its essence from 

the parties’ agreement.37 With regard to the Agency’s 

remaining essence arguments, as summarized in Section II 

above, the Arbitrator thoroughly discussed the 

agreement’s terms and fully explained why those terms 

apply to detail extensions. The Agency merely disagrees 

with the Arbitrator’s interpretation, which does not 

demonstrate the award is deficient.38 For these reasons, 

we deny the essence exception.

B. The award is not based on a nonfact.

The Agency contends the award is based on a 

nonfact.39 To establish that an award is based on a nonfact, 

the excepting party must demonstrate that a central fact 

of a detail at the outset does not authorize – or mention – detail 

extensions).

30 Exceptions Br. at 8. 31 Id. Article 2, Section 2.01 of the parties’ agreement provides, 

in pertinent part: “In the administration of all matters covered by 

this [a]greement, the Union and the [Agency] will be governed 

by . . . government-wide rules and regulations and/or 

Federal law.” CBA at 4. 32 Exceptions Br. at 8-9. 33 Id. 34 Id. at 8. 35 Award at 13. 36 Id. at 14. 37 SSA, 70 FLRA at 230. 38 FEA, 73 FLRA at 749. 39 Exceptions Br. at 6-7.
73 FLRA No. 161 Decisions of the Federal Labor Relations Authority 825

underlying the award is clearly erroneous, but for which 

the arbitrator would have reached a different result.40 The 

Authority will not find an award deficient on nonfact 

grounds based on a party’s disagreement with an 

arbitrator’s evaluation of the evidence, including the 

weight to be accorded such evidence.41

The Agency’s nonfact exception challenges the 

Arbitrator’s finding that the Agency failed to establish a 

past practice of detail extensions.42 According to the 

Agency: its witness testified that detail extensions are 

common within the Agency and throughout the 

federal government; the Arbitrator should have “imputed” 

knowledge of that practice to the Union; and the Union did 

not present any evidence to rebut the Agency’s argument 

that the Union had acquiesced to the alleged practice for 

years.43

As discussed in greater detail in Section II above, 

the Arbitrator found the Agency’s evidence of 

Agency- and government-wide past practices of detail 

extensions “general and conclusory.”44 The Agency’s 

nonfact exception merely disagrees with the Arbitrator’s 

evaluation of the evidence, including the weight he 

accorded such evidence. As such, it does not demonstrate 

the award is deficient,45 and we deny the nonfact 

exception.

C. The Agency does not demonstrate the 

award is contrary to law.

The Agency argues the award is contrary to law.46 

When resolving a contrary-to-law exception, the Authority 

reviews any question of law raised by the exception and 

the award de novo.47 Applying a de novo standard of 

review, the Authority assesses whether the arbitrator’s 

legal conclusions are consistent with the applicable 

standard of law.

48 In making that assessment, the 

Authority defers to the arbitrator’s underlying factual 

40 Fraternal Ord. of Police, DC Lodge 1, 73 FLRA 408, 410 

(2023).

41 NTEU, Chapter 46, 73 FLRA 654, 656 (2023) (Chapter 46). 42 Exceptions Br. at 6-7. 43 Id. 44 Award at 13; see id. at 12 (acknowledging testimony that detail 

extensions are “common,” but noting that “the Agency did not 

submit even a specific example of details which have been 

extended, either government-wide or Agency-specific”). 45 Chapter 46, 73 FLRA at 656. 46 Exceptions Br. at 3-6. 47 U.S. Dep’t of the Navy, Naval Med. Ctr. Camp Lejeune, 

Jacksonville, N.C., 73 FLRA 137, 140 (2022). 48 Id. 49 Id. 50 Exceptions Br. at 3-5.

findings unless the excepting party establishes that they are 

nonfacts.49 

First, the Agency asserts the award is contrary to

the Office of Personnel Management’s Guide to 

Processing Personnel Actions (OPM Guide).50 According 

to the Agency, the OPM Guide requires agencies to use 

not-to-exceed dates in detail appointments, and includes a 

code that agencies must use for detail extensions.51 The 

Agency asserts that, by using not-to-exceed dates in the 

employees’ initial detail notices, the Agency was “simply 

using the standard wording prescribed to it by” the 

Office of Personnel Management – not guaranteeing that 

the details would not be extended.52 

Although the Arbitrator relied on the 

“not[-]to[- ]exceed” wording from the initial detail 

notices,53 he did not find that evidence, standing alone, 

precluded the Agency from extending the employees’ 

details. Rather, he interpreted the parties’ agreement and 

found the Agency could not extend details beyond 

120 days without following certain procedures.54 The 

Agency’s arguments regarding the OPM Guide do not 

undercut that conclusion or provide a basis for finding the 

award conflicts with that Guide. Therefore, we deny the 

exception regarding the OPM Guide.

Additionally, in its exceptions, the Agency 

asserts the Arbitrator’s interpretation of the parties’ 

agreement is contrary to law because limiting the 

Agency’s ability to extend details conflicts with Authority 

precedent regarding management’s right to assign 

employees under § 7106(a)(2)(A) of the Statute.55 As 

noted above, the Authority gave the parties an opportunity 

to file supplemental briefs addressing the Authority’s 

revised management-rights test set forth in CFPB. In its 

supplemental brief, the Agency states: “If the Arbitrator 

had been correct in his view that the [parties’ agreement] 

required detail extensions to be presented to employees as 

if they were new details, there would be no violation of 

51 Id. at 4. The OPM Guide instructs agencies to use a particular 

code for “Ext Detail NTE (Date).” OPM, The Guide to 

Processing Personnel Actions, Chapter 14 - Promotions, Changes 

to Lower Grade, Reassignments, Position Changes and Details 

16-18 (Mar. 2017), https://www.opm.gov/policy-dataoversight/data-analysis-documentation/personneldocumentation/processing-personnel-actions/gppa14.pdf. 52 Exceptions Br. at 5. 53 Award at 6 (finding that detail notices indicated the details 

were “not expected to exceed 120 days,” and that the Agency 

informed selected employees their details were “not to exceed 

120 days”); id. at 11 (finding “the Agency set the length of the 

details to not exceed 120 days”).

54 See id. at 11-14 (finding that the Agency has the right to detail 

employees, but disputing that it may “unilaterally” do so while 

“ignoring the negotiated procedure[s]”).

55 Exceptions Br. at 5-6.
826 Decisions of the Federal Labor Relations Authority 73 FLRA No. 161

management rights.”56 In this regard, the Agency notes 

that, under CFPB, challenges to an arbitrator’s contract 

interpretation must “be made under the heading of an 

[essence] exception” – which the Agency notes it has 

done.57

We read the Agency’s claims as conceding that, 

if the Authority finds the Arbitrator’s contract 

interpretation is not deficient, then the award does not 

conflict with management rights. As discussed above, we 

have denied the Agency’s essence exception. Therefore, 

the Agency has not demonstrated the Arbitrator’s contract 

interpretation is deficient, and we find the Agency has now 

conceded the award does not conflict with management 

rights. As a result, further application of the CFPB test is 

unnecessary, and we deny the management-rights 

exception.

Accordingly, we deny the contrary-to-law 

exceptions. 

V. Decision

We partially dismiss and partially deny the 

Agency’s exceptions.

56 Agency’s Supp. Br. at 3 (emphasis added). 57 Id.