Federal Labor Relations Authority

Quarterly Digest Report: April 1, 2022 – June 30, 2022

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: U.S. Dep’t of the Treasury, IRS, 72 FLRA 728 (2022) 

(Chairman DuBester concurring in part and dissenting in part)

In this case, the Authority granted interlocutory review of the Agency’s essence 

exceptions, but denied them for failure to establish that the Arbitrator’s interpretation of the 

parties’ negotiated grievance procedure was irrational, unfounded, implausible, or in manifest 

disregard of the parties’ agreement.

Chairman DuBester agreed with the dismissal of the Agency’s interlocutory 

contrary-to-law exception, but dissented from the decision to grant interlocutory review of the 

Agency’s essence exception. 

CASE DIGEST: AFGE, Council of Locs. 222, 72 FLRA 738 (2022)

The Arbitrator issued an award finding, in relevant part, that because neither party was 

the prevailing party, each was responsible for its own legal fees and expenses. The Union filed 

exceptions on exceeded-authority, nonfact, contrary-to-law, and essence grounds. The Authority 

dismissed the exceeded-authority exception and portions of the remaining exceptions because the 

Union’s arguments were inconsistent with the position it took before the Arbitrator. The 

Authority denied the remaining exceptions because the Union failed to demonstrate that the

award was deficient.
CASE DIGEST: AFGE, Loc. 2338, 72 FLRA 743 (2022)

After finding that the Agency failed to pay eligible employees Saturday premium pay, the 

Arbitrator issued a remedial award granting backpay but denying interest, overtime, and shift 

differentials. In a subsequent fee award, the Arbitrator summarily denied the Union’s 

application for attorney fees. The Union filed exceptions to both awards, alleging that they were 

contrary to the Back Pay Act (the Act). The Authority granted those exceptions, modified the 

remedial award to conform with the Act, and remanded the fee issue to the parties.

CASE DIGEST: NTEU, 72 FLRA 749 (2022)

This negotiability case involved one proposal to allow more than 120 days of backpay for 

noncompetitive temporary promotions and details. The Authority found the proposal outside the 

duty to bargain because it was contrary to a government-wide regulation, and dismissed the 

Union’s petition for review.

CASE DIGEST: NTEU, 72 FLRA 752 (2022) (Chairman DuBester concurring in part, 

dissenting in part)

This case involved two proposals arising from the Agency’s decision to reassign 

forty-seven bargaining unit employees to different duty stations. The Authority found that the 

proposals were not appropriate arrangements because they excessively interfered with 

management’s right to determine its organization and right to retain employees. Accordingly, 

the Authority dismissed the petition for review.

Chairman DuBester concurred in part and dissented in part. He agreed that the first 

proposal excessively interfered with management’s right to determine the Agency’s 

organization, but disagreed with the majority’s finding that the Union conceded an effect on 

management’s rights, as well as the majority’s application of a “negates” test to assess whether 

the proposal was an appropriate arrangement. Additionally, in his view, the second proposal was 

an appropriate arrangement.

CASE DIGEST: AFGE, Loc. 906, 72 FLRA 761 (2022) (Member Abbott dissenting)

Because the Arbitrator imposed a contractual obligation not found in the parties’ 

settlement agreement, the Authority held that the award failed to draw its essence from the 

agreement.

Member Abbott dissented, emphasizing that the relevant question was whether the award 

was consistent with the requirements of the executive order and other applicable laws and 

regulations.
CASE DIGEST: AFGE, Loc. 2142, 72 FLRA 764 (2022) (Chairman DuBester concurring)

In this case, the Arbitrator issued an award finding that the Agency had just cause to 

suspend the grievant for two days for discourteous conduct and use of abusive language. The 

Union filed exceptions to the award on nonfact, contrary-to-law, and essence grounds. Because 

the Union failed to demonstrate that the award was deficient on any of these grounds, the 

Authority denied the Union’s exceptions.

Chairman DuBester agreed with the decision to deny the Union’s exceptions.

CASE DIGEST: Int’l Bhd. of Boilermakers, Loc. 290, 72 FLRA 769 (2022)

(Member Kiko concurring)

The Arbitrator dismissed a grievance as untimely under the parties’ agreement. The 

Union challenged the award on essence and exceeded-authority grounds. Because the Union’s 

exceptions failed to demonstrate that the award was deficient on either of those grounds, the 

Authority denied the exceptions.

Member Kiko concurred in the decision to deny the Union’s exceptions but wrote 

separately to highlight the Arbitrator’s disturbingly partial statements throughout the award.

CASE DIGEST: U.S. Dep’t of the Army, Mil. Dist. of Wash., Fort Myer, Va., 72 FLRA 772 

(2022) 

The Arbitrator found that the Agency violated the parties’ master agreement and a local 

agreement by denying official time for training. The Agency filed exceptions arguing that the 

award failed to draw its essence from the parties’ agreement, the Arbitrator lacked the authority 

to award backpay, and the award violated the doctrine of sovereign immunity. Because the 

Agency did not establish that the award was deficient, the Authority denied the Agency’s 

exceptions. 

Chairman DuBester concurred, finding that under the circumstances of this case, the 

award failed to satisfy the requirements of the Back Pay Act. 

CASE DIGEST: AFGE, Loc. 2814, 72 FLRA 777 (2022) (Chairman DuBester concurring; 

Member Abbott concurring)

The Authority dismissed the Union’s exception to the Arbitrator’s interim award because 

it did not demonstrate extraordinary circumstances warranting interlocutory review.

Chairman DuBester agreed with the decision to dismiss the Union’s exception.

Member Abbott concurred expressing his continued concerns with the broad scope of the 

current interlocutory review standard. 
CASE DIGEST: U.S. Dep’t of VA, 72 FLRA 781 (2022)

In this case, the Authority upheld an award that enforced contract provisions defining the 

parties’ obligations to engage in midterm bargaining. 

CASE DIGEST: Dep’t of the Army, Fort Carson Fire & Emergency Svc., Fort Carson, 

Colo., 73 FLRA 1 (2022)

This case concerned the Agency’s application for review of an FLRA Regional Director’s 

(RD) decision finding that two supervisory firefighters in the Agency’s operations branch are not 

confidential employees excluded from the bargaining unit represented by the Union. The 

Authority found that the RD did not commit a clear and prejudicial error concerning a substantial 

factual matter or fail to apply established law. Therefore, the Authority denied the application 

for review.

CASE DIGEST: NLRB Pro. Ass’n, 73 FLRA 20 (2022)

The Authority found that the Agency withdrew any allegations of nonnegotiability that it 

had previously made during proceedings before the Federal Service Impasses Panel concerning 

the proposals at issue in the Union’s petition for review. Therefore, the Authority dismissed the 

petition, without prejudice to the Union’s right to refile, for failing to meet the conditions 

governing review of negotiability appeals.

CASE DIGEST: AFGE, Loc. 1822, 73 FLRA 22 (2022)

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

Local 1822, 72 FLRA 595 (2021) (Chairman DuBester concurring). The Authority dismissed 

the motion as untimely because it was filed outside the ten-day deadline for such motions under 

§ 2429.17 of the Authority’s Regulations.

CASE DIGEST: AFGE, Loc. 2338, 73 FLRA 24 (2022)

The Arbitrator found that a grievance concerning the alleged involuntary resignation of 

the grievant from federal employment was not procedurally arbitrable. The Authority found that 

it lacked jurisdiction over the Union’s exceptions challenging that award under § 7122(a) of the 

Federal Service Labor-Management Relations Statute. Accordingly, the Authority dismissed the 

Union’s exceptions.

CASE DIGEST: U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Memphis, Tenn., 73 FLRA 26 

(2022)

The Union filed a grievance alleging that the Agency unlawfully prevented female 

employees from staffing two correctional posts. The Arbitrator found that the grievance was 

procedurally arbitrable and that the Agency’s policy of excluding female employees from the

posts violated law, Agency regulations, and the parties’ collective-bargaining agreements. 

Because the Agency failed to demonstrate that the Arbitrator’s procedural-arbitrability 
determination was deficient on essence grounds or that the merits determinations were contrary 

to law, the Authority denied the Agency’s exceptions.

CASE DIGEST: Fed. Educ. Ass’n, Stateside Region, 73 FLRA 32 (2022)

The Arbitrator found that the Union’s grievance was not substantively arbitrable based on 

management’s right to hire under the Federal Service Labor-Management Relations Statute. The 

Authority found that determination was contrary to law and remanded the award to the parties 

for resubmission to the Arbitrator for a decision on the merits. 

CASE DIGEST: AFGE, Loc. 1441, 73 FLRA 36 (2022)

The Arbitrator found that the Agency did not unlawfully designate the Dredge 

William L. Goetz floating plant as the grievants’ permanent duty station. The Authority denied 

the Union’s nonfact, contrary-to-law, and contrary-to-public-policy exceptions.

CASE DIGEST: AFGE, Loc. 3954, 73 FLRA 39 (2022)

After finding that certain employees were entitled to overtime compensation under the 

Fair Labor Standards Act, the Arbitrator issued a damages award in which he determined the 

amount of overtime compensation, liquidated damages, and attorney fees and costs to be paid by 

the Agency. The Union filed exceptions to the damages award on nonfact, exceeded-authority, 

contrary-to-law, fair-hearing, and impossible-to-implement grounds. The Authority denied the 

nonfact and exceeded-authority exceptions, but granted the contrary-to-law exception, in part. 

The Authority found that the Arbitrator improperly relied on averages to determine the amount 

of overtime compensation, the wrong legal standard to determine entitlement to liquidated 

damages, and the wrong market to determine the Union attorneys’ hourly rate. The Authority 

remanded those matters to the parties, absent settlement, for resubmission to the Arbitrator and 

therefore found it unnecessary to address the Union’s remaining exceptions.

CASE DIGEST: U.S. Dep’t of VA, James A. Haley VAMC, Tampa, Fla., 73 FLRA 47

(2022)

The Arbitrator issued an award finding that the grievance was substantively arbitrable 

and that the Agency’s rescission of the grievant’s contracting warrant authority violated Agency 

regulations. The Arbitrator directed the Agency to reinstate the grievant’s warrant authority and 

pay backpay. The Authority found that the grievance was arbitrable but set aside the backpay 

remedy as contrary to law. 

CASE DIGEST: NLRB Pro. Ass’n, 73 FLRA 50 (2022)

Although the parties’ agreement defined a “grievance” in a way that mirrored 

§ 7103(a)(9)(C)(ii) of the Federal Service Labor-Management Relations Statute, the Arbitrator 

found that a Union complaint containing unfair-labor-practice (ULP) allegations was not 

grievable or arbitrable. Because § 7103(a)(9)(C)(ii) authorizes grievances over ULP claims, the 

Authority set aside the award as contrary to law.
CASE DIGEST: AFGE, Council 222, 73 FLRA 54 (2022)

The Arbitrator found that the Agency did not violate the parties’ collective-bargaining 

agreement or law when it discontinued holiday pay in excess of eight hours to employees not on 

a compressed work schedule. The Union filed exceptions challenging the award on nonfact and 

contrary-to-law grounds. The Authority found that the Union failed to establish that the award 

was deficient on either ground and denied the exceptions.

CASE DIGEST: NAGE, Loc. R3-74, SEIU, 73 FLRA 57 (2022)

In this case, the Arbitrator denied a grievance alleging that the Agency violated the 

parties’ collective-bargaining agreement (CBA) by reassigning an employee without following 

proper CBA procedures concerning department-initiated reassignments. The Union filed an 

exception arguing that the award failed to draw its essence from the CBA because the Arbitrator 

ignored dispositive contract language. The Authority was unable to determine whether the 

award was deficient as raised in the Union’s exception, and remanded the matter for further 

action consistent with its decision.

CASE DIGEST: AFGE, Loc. 2052, Council of Prison Locs. 33, 72 FLRA 59 (2022) 

(Chairman DuBester concurring)

The Arbitrator granted the Agency’s motion for summary judgement and dismissed the 

Union’s grievance, finding that the Agency had no obligation to bargain over a change in the 

staffing roster. The Union raised essence, bias, exceeded-authority and nonfact exceptions

concerning the award and the Arbitrator’s management of the arbitration process. The Authority 

found that the Union failed to establish the award was deficient on those grounds, and denied the

exceptions.

Chairman DuBester concurred, noting concerns with the manner in which the Arbitrator 

handled the case.

CASE DIGEST: Indep. Union of Pension Emps. for Democracy & Just., 73 FLRA 65 

(2022)

The Union filed two sets of exceptions to the award. Because the Union failed to include 

any arguments in its exceptions, the Union did not raise grounds for review. Accordingly, the 

Authority dismissed the Union’s exceptions. 

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

73 FLRA 67 (2022) (Member Kiko concurring)

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

agreement by miscounting the number of bargaining-unit employees used to determine the

Union’s allotment of annual official-time hours. The Agency filed exceptions on essence and 

nonfact grounds. The Authority dismissed the essence exception, in part, and denied it in part, 

and denied the nonfact exception.
Member Kiko concurred in order to note the unprecedented amounts of official time 

sought by the Union in negotiations, and to reiterate that parties have an obligation under the 

Federal Service Labor-Management Relations Statute to negotiate agreements that provide for 

official time in amounts that are reasonable, necessary, and in the public interest.

CASE DIGEST: AFGE, Council 270, 73 FLRA 73 (2022)

This matter was before the Authority on a negotiability appeal filed by the Union under 

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

found that the Union filed unfair labor practice charges that concern issues directly related to the 

Union’s petition for review. Accordingly, the Authority dismissed the petition without 

prejudice.

CASE DIGEST: U.S. DOD Educ. Activity, 73 FLRA 75 (2022)

The Authority’s Office of Case Intake and Publication (CIP) issued a procedural

deficiency order (PDO) directing the Agency to correct a procedural deficiency in the filing of its 

exceptions. The Agency filed its response to the PDO after the deadline, but argued that the 

deadline should be waived because it delivered its response to the PDO to the Agency’s 

mailroom in a timely manner. The Authority dismissed the Agency’s exceptions, finding that the 

Agency failed to establish extraordinary circumstances warranting waiver of the expired 

deadline.

CASE DIGEST: U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Miami, Fla., 73 FLRA 77 (2022) 

(Member Kiko dissenting in part)

The Arbitrator issued an award finding that the Agency violated the parties’ master 

collective-bargaining agreement and the Fair Labor Standards Act by wrongfully denying 

official time. The Agency filed exceptions to the award on contrary-to-law, exceeded-authority, 

and essence grounds. Because the Agency’s contrary-to-law argument was not properly before 

the Authority, and the remaining exceptions did not demonstrate that the award was deficient, the 

Authority dismissed the exceptions, in part, and denied the exceptions, in part. 

Because the pertinent provision of the parties’ agreement authorized official time only for 

Union officers, stewards, and representatives, and it was undisputed that the grievant was serving 

as a witness, Member Kiko would have found that the award failed to draw its essence from the 

parties’ agreement. Accordingly, she dissented in part.

CASE DIGEST: U.S. DHS, Citizenship & Immigr. Servs., 73 FLRA 82 (2022)

In this case, the Arbitrator found that the Agency violated the parties’ 

collective-bargaining agreement by failing to process certain career ladder promotions 

retroactively. The Agency excepted, arguing that the award failed to draw its essence from the 

agreement and that it was contrary to a government-wide regulation and Comptroller General 

and Authority precedent concerning retroactive promotions. The Authority dismissed the 

Agency’s essence exception under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations and 
denied the Agency’s other exception, finding that the Agency failed to establish that the award in 

directing the retroactive promotions was inconsistent with government-wide regulation, 

government-wide authority, and applicable case law.

CASE DIGEST: AFGE, Nat’l Council of Field Lab. Locs., 73 FLRA 87 (2022) 

(Member Kiko dissenting)

The Authority dismissed the Union’s petition for failure to respond to an order to show 

cause (show-cause order). The Union filed a motion for reconsideration (motion) of the 

Authority’s dismissal, arguing that the consequences for failing to respond to the show-cause 

order were ambiguous. The Authority found that under the circumstances of this case, the Union 

established extraordinary circumstances warranting reconsideration, and granted the motion.

Finding that the show-cause order adequately warned the Union of the consequences for 

failing to respond, and that the Union had not satisfied the heavy burden of establishing 

extraordinary circumstances warranting reconsideration, Member Kiko dissented.

CASE DIGEST: Bremerton Metal Trades Council, 73 FLRA 90 (2022)

The Arbitrator found that the Agency’s suspension of the grievant for conduct that 

occurred while the grievant was on official time did not violate the parties’ collective-bargaining 

agreement or the Federal Service Labor-Management Relations Statute because the grievant 

committed flagrant misconduct. The Authority dismissed, in part, and denied, in part, the 

Union’s essence, exceeded-authority, contrary-to-law, and nonfact exceptions to the award.

CASE DIGEST: U.S. Dep’t of HHS, 73 FLRA 95 (2022)

The Arbitrator found that the Union timely filed its grievance in accordance with the 

parties’ agreement. The Agency argued that the Arbitrator’s arbitrability determination was 

based on a nonfact and failed to draw its essence from the parties’ agreement. Because the 

Agency did not establish that the award was deficient on these grounds, the Authority denied the 

exceptions.

CASE DIGEST: AFGE, Loc. 572, 73 FLRA 98 (2022)

The Arbitrator found that the Union’s grievance was not arbitrable under the parties’ 

collective-bargaining agreement. The Union filed an exception on the ground that the award was 

contrary to public policy. The Authority dismissed the exception for lack of jurisdiction because 

the grievance concerned the removal of a non-appropriated fund employee.

CASE DIGEST: NTEU, 73 FLRA 101 (2022) (Chairman DuBester concurring)

In this consolidated decision, the Authority considered the Union’s exceptions to two 

related awards. In the first award, an Arbitrator denied a Union grievance that challenged the 

Agency’s declaration of impasse during renegotiation of the parties’ collective-bargaining 

agreement. In the second award, a different Arbitrator sustained an Agency grievance, alleging 
that the Union violated the parties’ ground-rules agreement by refusing to execute a completed 

agreement. Because the Union did not establish that either award was deficient, the Authority 

upheld both awards.

Chairman DuBester concurred, noting that because the Union did not allege that either 

arbitrator exceeded their authority by failing to decide whether the Agency’s actions preceding 

its declaration of impasse constituted bad-faith bargaining, the Authority is constrained from 

addressing that question.