Federal Labor Relations Authority

Quarterly Digest Report: July 1, 2023 – September 30, 2023

The following case digests are summaries of decisions/orders issued by the Federal Labor 

Relations Authority, with a short description of the issues and facts of each case. Descriptions 

contained in these case digests are for informational purposes only, do not constitute legal 

precedent, and are not intended to be a substitute for the opinion of the Authority.

CASE DIGEST: AFGE, Loc. 2092, 73 FLRA 596 (2023)

The Arbitrator determined that an Agency change to the grievant’s work schedule did not 

violate the parties’ collective-bargaining agreement because the Agency provided the Union with 

notice and an opportunity to bargain before implementing the change. The Union filed 

exceptions on essence and exceeded-authority grounds. The Authority denied the exceptions

because they did not establish any deficiencies in the award.

CASE DIGEST: IFPTE, Loc. 1, 73 FLRA 600 (2023) (Chairman Grundmann concurring)

The Arbitrator determined that the Union’s grievance was not procedurally arbitrable 

because the Union failed to comply with a provision in the parties’ collective-bargaining 

agreement governing the selection of an arbitrator. The Union filed an exception to the award on 

essence grounds. The Authority denied the exception because it did not establish any deficiency 

in the award. Chairman Grundmann concurred.

CASE DIGEST: AFGE, Loc. 12, 73 FLRA 603 (2023)

The Union filed a petition for review of two proposals related to the Agency’s change to 

performance standards for bargaining-unit employees. Relying on precedent holding that the 

establishment of performance standards is an exercise of the management rights to direct 

employees and assign work, the Authority found that both proposals were outside the duty to 

bargain and dismissed the petition. 
CASE DIGEST: U.S. Dep’t of VA, Marion Veterans Admin. Med. Ctr., Marion, Ill., 

73 FLRA 610 (2023)

The Arbitrator found that the Agency violated the parties’ collective-bargaining 

agreement by failing to pay the grievants environmental-differential pay due to their exposure to 

a high-degree hazard consisting of micro-organisms. The Authority denied the Agency’s

exceptions contending that the award was contrary to law and government-wide regulations

because the Agency failed to establish that the award was inconsistent with either the 

Occupational Safety and Health Act of 1970, as amended, or the Office of Personnel 

Management’s regulations about environmental-differential pay for exposure to a high-degree 

hazard consisting of micro-organisms.

CASE DIGEST: NTEU, Chapter 14, 73 FLRA 613 (2023)

The Arbitrator sustained the Union’s performance-evaluation grievance and directed the 

Agency to pay the grievant a performance award. The Union then requested attorney fees. The 

Arbitrator found that the Union was not entitled to the fees because performance awards were 

discretionary under the parties’ collective-bargaining agreement and so did not constitute pay 

under the Back Pay Act. The Union excepted, arguing that the Arbitrator used the wrong legal 

standard to determine whether the parties’ agreement required the Agency to pay performance 

awards. The Authority found that the Union’s arguments concerned the Arbitrator’s 

interpretation of the parties’ agreement and failed to establish any legal error. Accordingly, the 

Authority denied the Union’s contrary-to-law exception. Chairman Grundmann concurred.

CASE DIGEST: U.S. Dep’t of the Army, Ariz. Dep’t of Emergency & Mil. Affs., Ariz. Army 

Nat’l Guard & Ass’n of Civilian Technicians, Chapter 61, 73 FLRA 617 

(2023)

The Arbitrator found the Agency violated the parties’ agreement and the Federal Service 

Labor-Management Relations Statute by rescinding a policy without bargaining. The Agency

filed exceptions to the award on contrary-to-law grounds. Because the rescinded policy was 

contrary to 32 U.S.C. § 709, and thus the Agency’s rescission of the policy was merely enforcing 

a statutory requirement, the Authority vacated the award as contrary to law.

CASE DIGEST: U.S. DOJ, Fed. BOP, Fed. Corr. Complex, Yazoo City, Miss.,

73 FLRA 620 (2023)

After an employee reported a supervisor for harassment, the Agency issued the employee 

a cease-and-desist notice. The Union grieved the issuance of the notice, and the Arbitrator found 

that the action constituted retaliation against the employee in violation of Title VII of the Civil 

Rights Act of 1964. The Agency filed exceptions arguing that the award was contrary to law and 

that the grievance was procedurally inarbitrable under the parties’ collective-bargaining 

agreement. Because the Agency could have raised its contrary-to-law argument before the 

Arbitrator, but did not, the Authority dismissed this exception. And because the Agency failed to 

establish a deficiency in the Arbitrator’s interpretation of the parties’ agreement, the Authority 

denied the Agency’s essence exception.
CASE DIGEST: U.S. DOJ, U.S. BOP, Fed. Corr. Complex, Victorville, Cal., 73 FLRA 624 

(2023)

The Arbitrator found the Agency violated the parties’ collective-bargaining agreement by 

failing to timely complete investigations, thereby denying two grievants overtime opportunities. 

As a remedy, the Arbitrator awarded the grievants backpay. The Agency filed exceptions on 

nonfact, essence, and contrary-to-law grounds. The Authority dismissed the nonfact exception 

and essence exception, in part because the Agency could have, but did not, raise the arguments in 

those exceptions to the Arbitrator. The Authority denied the remaining essence exception and 

the contrary-to-law exception because the Agency failed to establish that the award was deficient 

on either ground. 

CASE DIGEST: U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., Poplar Bluff, Mo., 

73 FLRA 628 (2023)

The Agency filed a motion for reconsideration of the Authority’s decision in Department 

of VA, John J. Pershing VA Medical Center, Poplar Bluff, Missouri, 73 FLRA 498 (2023)

(Poplar Bluff). The Authority found the motion did not establish extraordinary circumstances 

warranting reconsideration, because it relied on evidence that came into existence after the 

arbitration proceeding and it merely attempted to relitigate the Authority’s conclusions in 

Poplar Bluff. Therefore, the Authority denied the motion.

CASE DIGEST: U.S. Dep’t of State, Passport Servs., 73 FLRA 631 (2023)

The Agency failed to timely remove discipline from the grievant’s electronic official 

personnel file (eOPF) in violation of the parties’ collective-bargaining agreement and a 

settlement agreement. As remedies, the Arbitrator directed the Agency to pay the grievant $2000

and establish a monitoring system to verify the removal of discipline from eOPFs. The 

Authority found no statutory basis for the monetary remedy and set it aside as violating

sovereign immunity. The Authority found that the monitoring-system remedy exceeded the 

Arbitrator’s authority, because it was not limited to the grievant, and modified it accordingly. 

CASE DIGEST: IFPTE, Loc. 4, 73 FLRA 635 (2023)

This case concerned the negotiability of one proposal which would allow the Union to 

take photographs in Union-controlled spaces at the Agency’s facility and disseminate those 

photographs without the Agency’s prior approval. The Authority assumed, without deciding, 

that the proposal affected the Agency’s right to determine internal-security practices. However, 

the Authority found the Agency conceded the proposal was negotiable as a procedure under 

5 U.S.C. § 7106(b)(2). Accordingly, the Authority concluded that the proposal was within the 

duty to bargain.
CASE DIGEST: NAGE, Loc. R1-134, 73 FLRA 637 (2023)

These cases were before the Authority on three negotiability appeals (petitions) filed by 

the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute. 

The petitions concerned the negotiability of seven proposals related to a successor agreement on 

bargaining-unit-employees’ personnel system. Under the circumstances, the Authority found it 

appropriate to consolidate the cases. The Authority found that Proposals 1, 2, and 7 affected 

management’s right to determine budget and Proposal 5 affected management’s rights to direct 

and assign work; the Union did not show that these proposals were negotiable as exceptions to 

the respective affected management rights; and, therefore, these proposals were outside the duty 

to bargain. Further, because Proposal 3 was inextricably intertwined with Proposals 1 and 2, the 

Authority found it also was outside the duty to bargain. In addition, the Authority found that 

Proposal 4 did not affect management’s rights to direct and assign work and Proposal 6 did not 

affect management’s right to determine budget, and the Agency did not demonstrate that the 

proposals were otherwise contrary to law. Thus, the Authority found that Proposals 4 and 6 were

within the Agency’s duty to bargain.

CASE DIGEST: NTEU, Chapter 46, 73 FLRA 654 (2023)

The Arbitrator issued an award finding the Agency did not violate the Rehabilitation Act 

or the parties’ collective-bargaining agreement when the Agency denied the grievant’s request 

for advanced annual leave. The Union filed exceptions to the award on nonfact, essence, and

contrary-to-law grounds. The Authority denied the exceptions because the Union failed to 

demonstrate the award was deficient.

CASE DIGEST: U.S. Dep’t of VA, 73 FLRA 660 (2023)

The Arbitrator issued an award finding the Union’s grievance procedurally arbitrable and 

granted the grievance on the merits. The Agency filed exceptions to the Arbitrator’s arbitrability 

determination on essence and nonfact grounds, and to the awarded remedy on contrary-to-law 

grounds. The Authority dismissed certain of the Agency’s exceptions because the Agency failed 

to raise its arguments to the Arbitrator. Because the Agency’s remaining exceptions challenged 

an arbitrability determination supported by a separate and independent ground, they did not 

establish that the award was deficient, and the Authority denied them.

CASE DIGEST: Consumer Fin. Prot. Bureau; 73 FLRA 663 (2023)

The Arbitrator sustained the Union’s grievance, in part, and reduced the grievant’s 

two-day suspension to a letter of reprimand. The Authority denied the Agency’s essence

exception because it did not establish any deficiencies in the award. 
CASE DIGEST: U.S. Dep’t of VA, S. Nev. Health Care Syst., 73 FLRA 666 (2023)

The Arbitrator found: (1) the grievant voluntarily accepted a reassignment to a 

lower-graded, but higher-paid, position, based on Agency misinformation; (2) the Agency later 

wrongfully reduced the grievant’s pay; and (3) the pay reduction was an adverse action under 

5 U.S.C. § 7512 because the grievant reasonably and detrimentally relied on the Agency 

misinformation when he accepted the reassignment to the lower-graded position. The Agency 

filed exceptions to the award on multiple grounds. Because the claim advanced at arbitration 

concerned an adverse action under § 7512, the Authority found it did not have jurisdiction, and 

dismissed the exceptions. 

CASE DIGEST: Consumer Fin. Prot. Bureau & NTEU, Chapter 335, 73 FLRA 670 (2023)

The Arbitrator found the Agency issued the letter of reprimand without cause, in 

violation of the parties’ agreement. The Agency filed exceptions to the award on exceededauthority and essence grounds, and on the ground that the award was contrary to the Due Process 

Clause of the Fifth Amendment to the U.S. Constitution. The Authority denied those exceptions

because the Agency failed to demonstrate how the award was deficient.

In addition, the Agency argued that the award was contrary to public policy and that it 

conflicted with management’s right to discipline employees under § 7106(a)(2)(A) of the Federal 

Service Labor-Management Relations Statute. The Authority clarified its test, previously set 

forth in U.S. DOJ, Federal BOP, 70 FLRA 398, 405-06 (2018) (Member DuBester dissenting),

for assessing management-rights exceptions to arbitration awards enforcing collective-bargaining

agreements. The Authority reserved judgment on the management-rights exceptions to allow the 

parties to submit additional briefs addressing how the Authority should apply the clarified test in 

their case.

CASE DIGEST: USDA, Food Safety & Inspection Serv., 73 FLRA 683 (2023)

The Arbitrator sustained a grievance concerning the Agency’s failure to bargain with the 

Union over changes to its detailing practices and certain positions (inspectors). The Arbitrator 

directed the Agency to return to the status quo ante, engage in good-faith bargaining, cease and 

desist from detailing the inspectors involuntarily, and make affected inspectors whole. The 

Agency filed exceptions to the award on the bases that the Arbitrator exceeded his authority; and 

the award is contrary to law, based on a nonfact, and moot. The Authority dismissed the 

Agency’s contrary-to-law exception, and denied the remaining exceptions.
CASE DIGEST: Tidewater Region Mkt., Def. Health Agency, U.S. DOD, 73 FLRA 687

(2023).

An FLRA Regional Director (the RD) issued a decision and order finding the Defense 

Health Agency, Tidewater Market is the successor employer of professional and 

non-professional employees – represented by three different unions – who organizationally 

transferred to Tidewater Market from various Department of Defense facilities. She also found 

an election was not necessary to determine which union would represent the employees, because 

the American Federation of Government Employees represented a sufficient number of the 

employees. However, she directed an election to allow the professional employees to decide 

whether they want to be included in a unit with non-professional employees.

The National Association of Independent Labor (NAIL), which represented some of the 

transferred employees, filed an application for review of the RD’s decision. The Authority found 

NAIL did not demonstrate the RD failed to apply established law or committed clear and 

prejudicial errors concerning substantial factual matters. Therefore, the Authority denied the 

application for review.

CASE DIGEST: U.S. Dep’t of the Army, U.S. Army Garrison, Picatinny Arsenal, N.J., 

73 FLRA 700

The Union grieved after the Agency closed of one of two fire stations, which reduced the 

number of staffed positions per shift. In an arbitrability award, the Arbitrator found that the 

Union timely filed the grievance. In a merits award, the Arbitrator sustained the grievance and 

directed the Agency to restore staffing “as it existed” prior to the station closure. The Authority 

dismissed and denied the Agency’s essence exceptions to both awards, and partially denied the 

incomplete-or-ambiguous exception. However, because the Authority could not determine the 

precise meaning of the Arbitrator’s staffing remedy, the Authority partially granted the 

incomplete-or-ambiguous exception and remanded the merits award for clarification of the 

remedy.