Federal Labor Relations Authority

Quarterly Digest Report: April 1, 2019 - June 30, 2019

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, Nat’l Joint Council of Food Inspection Locals, AFL-CIO, 71 

FLRA 69 (2019) (Member Abbott concurring)

This case concerned whether a provision in the parties’ collective-bargaining 

agreement excused the Union’s refusal to bargain with the Agency over a new agreement. 

A reopener provision in the parties’ agreement provided that the parties would 

renegotiate if either party timely served its demand to bargain along with initial written 

proposals. Citing that provision, the Union refused to bargain because the Agency had 

submitted only ground rules proposals with its bargaining demand. An FLRA Regional 

Director issued a complaint alleging that the Union violated § 7116(b)(1) and (5) of the 

Federal Service Labor-Management Relations Statute (Statute) by refusing to bargain. 

An FLRA Administrative Law Judge (the Judge) found that the cited provision did not 

require submitting substantive proposals. As such, the Judge found that the Union could 

not refuse to bargain on the basis that the Agency submitted only ground-rules proposals.

The Union filed exceptions to the Judge’s recommended decision and argued that the 

Judge misinterpreted the contract provision. The Authority found that the Judge’s 

interpretation was consistent with the record and the standards and principles that 

arbitrators and federal courts apply when interpreting collective-bargaining agreements. 

Therefore, the Authority denied the Union’s exceptions and found that the Union violated 

§ 7116(b)(1) and (5) of the Statute.
Member Abbott concurred. Although he agreed that the record supported the 

Judge’s conclusions, Member Abbott would have applied the more deferential 

substantial-evidence standard to review the Judge’s findings, and he called upon the 

majority to reconsider its stance of giving a higher deference to arbitrators and regional 

directors than accorded to the Authority’s administrative law judges. 

CASE DIGEST: U.S. Dep’t of the Air Force, Air Force Materiel Command, 66 Air 

Base Grp., Hanscom Air Base, Mass., 71 FLRA 81 (2019) (Member DuBester 

concurring)

The Union filed a petition asking to clarify the bargaining-unit status of four 

employees occupying two positions. The Regional Director (RD) found that the 

employees are confidential employees under 5 U.S.C. § 7103(a)(13) and should be 

excluded from the Union’s bargaining unit. The Union filed an application for review of 

the RD’s decision. 

In assessing whether an employee “acts in a confidential capacity with respect to 

an individual who formulates or effectuates labor-management policies,” the Authority 

stated that the employee need not actually participate in contract negotiations or 

grievances. Instead, the Authority will consider whether the employee obtains advance 

information about those matters through the normal performance of his or her duties. As 

the record established that the four employees obtained such advanced information 

through meetings and emails, the Authority denied the application for review. 

CASE DIGEST: U.S. Dep’t of VA, Malcolm Randall VA Med. Ctr., Gainesville, Fla., 

71 FLRA 103 (2019)

In this case, the grievance alleged that the Agency failed to comply with certain

provisions of the parties’ collective bargaining agreement that required the Agency to 

provide employees with copies of hearing recordings and transcripts and investigationrelated materials. 

The Arbitrator found that the Agency violated the agreement by not providing the 

information and, as a remedy, ordered the Agency to provide the employees with the

materials set out in the agreement. On exceptions, the Agency raised essence and 

exceeds-authority arguments on the same grounds, and argued that the award was 

impossible to implement. The Authority found that the Arbitrator’s interpretation and 

remedy comported with the plain language of the parties’ agreement. The Authority also 

found that the award was not impossible to implement because it was clearly prospective. 

Accordingly, the Authority denied all of the Agency’s exceptions. 
CASE DIGEST: U.S. DHS, U.S. CBP, U.S. Border Patrol, Laredo Sector, Laredo, Tex.,

71 FLRA 106 (2019) (Member DuBester dissenting)

This case concerned an Agency ethics official’s determination that the grievant’s 

employment during his off-duty time as an emergency medical technician (EMT) would 

create an appearance of a conflict of interest with his duties as a border patrol agent. The 

Arbitrator found the Agency’s determination was “arbitrary and capricious” and that the 

grievant would not violate his duty as an EMT to maintain patient confidentiality by

adhering to his obligation, as a border patrol agent, to report a patient’s undocumented

immigration status to the Agency. On exceptions, the Agency argued that the award 

failed to draw its essence from the collective bargaining agreement because it reasonably 

denied the off-duty work request because of a potential conflict of interest between the 

grievant’s border patrol duties and his duties as an EMT. The Authority found the 

Arbitrator analyzed whether the grievant’s duties as an EMT would create an actual 

conflict of interest but disregarded the Agency’s contractual authority to avoid even the 

appearance of a conflict of interest. Accordingly, the Authority concluded that the 

Agency’s determination that the grievant’s outside employment would create the

appearance of a conflict of interest was neither arbitrary nor capricious, and vacated the 

award. 

Member DuBester dissented, finding that the award reflects a plausible

interpretation of the parties’ agreement, and the Arbitrator properly considered whether

the state law requiring patient confidentiality would bar the grievant from reporting 

someone’s immigration status to the Agency. Member DuBester also noted that the

Agency’s prior conduct supporting the Arbitrator’s finding that the Agency acted 

arbitrarily and capriciously.

CASE DIGEST: U.S. Dep’t of Energy, W. Area Power Admin., 71 FLRA 111 (2019)

(Member DuBester dissenting)

The Union filed a grievance on behalf of a group of dispatchers who alleged that 

they were not receiving the prevailing rate of premium pay for holiday work. The

Arbitrator found the grievance arbitrable and concluded that the Agency should have paid 

the dispatchers a higher pay rate. On exceptions, the Authority noted that federal law 

granted the Agency with sole and exclusive discretion to establish a compensation system 

for dispatchers, and the Agency had exercised that discretion by establishing a rate of 

holiday premium pay. By filing a grievance contesting the individual application of that 

pay rate, the Union obtained an award that directed the Agency to change its rate of 

holiday pay – effectively overriding the Agency’s statutorily provided pay-setting 

discretion. Accordingly, the Authority overruled precedent that distinguished between 

establishing and applying compensation systems in the context of sole and exclusive 

discretion. And, applying that rule, the Authority set aside the award as contrary to law.

Member DuBester dissented, relying on the precedent that the majority 

overturned, and finding that the Federal Service Labor-Management Relations Statute’s 
wording, legislative history, and purpose supported the grievability of the Union’s 

allegation. He reasoned that this authority did not intend to remove misapplication of a 

law establishing pay rates from the scope of the negotiated grievance procedure. 

Therefore, he would not have set aside the award.

CASE DIGEST: AFGE, Nat’l Citizenship & Immigration Servs. Council, Local 2076, 

71 FLRA 115 (2019) (Member DuBester concurring)

This case concerned the Agency’s issuance of memoranda to notify employees of 

misconduct investigations and to suspend certain workplace privileges during those

investigations. The Union’s grievance alleged that the memoranda violated an Agency 

regulation that purportedly restricted the Agency to three types of corrective letters, and 

that the investigations were longer than the parties’ collective-bargaining agreement

permitted. The Arbitrator denied the grievance. On exceptions, the Union argued that 

the award was contrary to the Agency regulation and failed to draw its essence from the 

agreement. The Authority found that, although the regulation mentioned three types of 

corrective letters, neither the regulation nor the agreement expressly prohibited other 

types. Further, the Authority found that the Union failed to establish that the length of 

the investigations amounted to “harmful error” under the terms of the agreement. 

Therefore, the Authority denied the exceptions.

Member DuBester concurred, stating that he would defer to the Arbitrator’s 

conclusions.

CASE DIGEST: U.S. DHS, U.S. CBP, 71 FLRA 119 (2019) (Member DuBester 

dissenting)

The Union president (grievant) requested sixty-four hours of official time for 

certain activities, but did not specify how much time he needed for each activity. The 

Agency asked the grievant to provide that information, he refused, and the Agency 

denied the request as excessive. The Arbitrator found that the parties’ collectivebargaining agreement did not require the grievant to provide the additional information

about his official-time request. Thus, the Arbitrator concluded that the Agency violated 

the agreement. 

On exceptions, the Authority found that even when parties have agreed to 

procedures for requesting official time, those procedures must allow an agency to gather 

information necessary to make a reasoned determination as to whether the request is 

reasonable under 5 U.S.C. § 7131(d). Because the award prevented the Agency from 

determining how many hours of official time the grievant would use for each activity, the 

Agency could not determine whether the request was reasonable. Thus, the Authority set 

aside the award as contrary to § 7131(d).
Member DuBester dissented, finding that the Arbitrator was simply enforcing the

terms of the parties’ agreement, and asserting that the Authority’s decision disregarded 

those terms as well as the deference owed to an arbitrator’s interpretation of official time 

agreements under § 7131(d). 

CASE DIGEST: SSA, Office of Hearings Operations, 71 FLRA 123 (2019) 

(Member DuBester dissenting)

This case concerned the Agency’s procedure for assessing employees’ 

performance. The grievance alleged an employee should have received an “outstanding” 

rather than “successful” rating. The Arbitrator found that the Agency failed to properly 

consider the grievant’s self-assessment and rebuttal to the Agency’s reasons for denying 

her the more favorable rating and that it erred when it relied on certain evidence in 

assigning her rating. On exceptions, the Agency argued that the award was contrary to 

law and Agency policy because the Arbitrator allegedly erroneously found that the 

Agency’s performance assessment system conflicted with government-wide regulations. 

The Authority found that the Agency’s exceptions relied on a misinterpretation of the 

award, as the Arbitrator had determined that the Agency’s appraisal process was a fair 

and appropriate procedure but found that the Agency had not properly applied it to the 

grievant. Therefore, the Authority concluded that the Agency had not established that the 

award was contrary to law, and denied the Agency’s exception. 

Member DuBester dissented. He found that the majority misapplied Authority 

precedent to improperly find that the EEO complaint and the grievance concerned the 

same matter. 

CASE DIGEST: DOD, Domestic Dependent Elementary & Secondary Sch., Fort 

Buchanan, P.R., 71 FLRA 127 (2019) (Member DuBester dissenting)

This case concerned an agency’s refusal to implement a successor 

collective-bargaining agreement with the Charging Party (the Union), despite a decision 

from the Federal Service Impasses Panel (the Panel) directing the Agency to adopt that 

agreement. An FLRA Administrative Law Judge (the Judge) recommended finding that 

the Agency committed the unfair labor practices (ULPs) alleged in the complaint because 

the Panel’s decision was lawful and the Agency refused to obey it.

The Authority found, as an initial matter, that, in all future cases, the General 

Counsel must plead the negotiability of the matters in Panel decisions to avoid a 

procedural dismissal in these types of disputes under 5 U.S.C. § 7116(a)(6). Regarding a 

provision of the successor agreement that the Authority found prevented the Agency from 

deciding when employees performed one of the hours of their workday, the Authority 

found the provision unenforceable because it interfered with management’s right to 

assign work under 5 U.S.C. § 7106(a)(2)(B). Consistent with the parties’ requests, the 

Authority ordered further bargaining on work hours and compensation. In addition, the 
Authority found that the Panel exceeded its jurisdiction – and, thus, acted unlawfully –

when it ordered the parties to incorporate into their successor agreement all of the 

tentative agreements that they had reached before the Union filed its request for Panel 

assistance. Nevertheless, the Authority found that the deficiencies in some portions of 

the Panel’s decision did not excuse the Agency from complying with all of the Panel’s 

decision. Accordingly, the Authority ordered the Agency to comply with the lawful 

portions of the Panel’s decision, to resume negotiations with the Union, and to post and 

electronically distribute a notice acknowledging the ULPs. Therefore, the Authority 

granted the Agency’s exceptions, in part, and denied them, in part; and the Authority 

denied the Union’s exceptions regarding attorney fees and interest on backpay.

Member DuBester dissented, finding that the Judge correctly concluded that a 

provision of the successor agreement did not preclude the Agency from deciding when 

employees performed one of the hours of their workday, and was enforceable because it 

did not prevent the Agency from assigning work under § 7106(a)(2)(B). Further, finding 

that the Judge properly relied on record evidence of the parties’ intent that the Panel

resolve all matters encompassing the successor agreement when resolving the impasse, 

Member DuBester determined that the Judge correctly concluded that the Agency failed 

and refused to comply with the Panel’s Decision and Order to implement the successor 

agreement, including all tentative agreements. Additionally, Member DuBester found 

that the Authority’s pleading standards in future § 7116(a)(6) disputes should remain 

unchanged. Further, he would have granted a Union exception to amend the remedial 

order to include interest on backpay.

CASE DIGEST: Int’l Bhd of Elec. Workers, Local 121 & U.S. GPO, 71 FLRA 161

(2019) (Member DuBester concurring) 

This case concerned a grievant who had been suspended for fourteen days for lack 

of candor to an Inspector General investigator about his knowledge of, and providing 

supplies to, another employee who constructed a grill for his personal use out of Agency 

materials. The grievance alleged that the charges were not proven, the penalty was 

unreasonable, and the Agency unduly delayed corrective action. The Arbitrator found 

that the Agency proved the charges by a preponderance of the evidence but that the 

penalty was excessive because the mechanic who constructed the grill only received a 

seven-day suspension and the grievant’s actions were not “aggravated,” so the Arbitrator 

reduced the suspension to seven days. On exceptions, the Union argued that the Agency 

unlawfully considered the grievant’s denial of wrongdoing as an aggravating factor and 

that the Arbitrator exceeded his authority by not resolving whether the Agency unduly 

delayed corrective action. The Authority found that the Union’s cited caselaw did not 

apply, the Union mischaracterized the award, and as the Arbitrator found the grievant’s 

conduct properly subjected him to discipline, the Arbitrator effectively found that the 

Agency did not unduly delay corrective action. Therefore, the Authority denied the 

Union’s contrary-to-law and exceeds-authority exceptions.
Member DuBester concurred, agreeing with the decision to uphold the 

Arbitrator’s award reducing the suspension from fourteen to seven days.

CASE DIGEST: AFGE, Local 2198, 71 FLRA 165 (2019)

This case concerned an arbitrator’s premature denial of attorney fees. The 

Union’s grievance challenged the grievant’s five-day suspension imposed by the Agency. 

The Arbitrator issued an award reducing the grievant’s five-day suspension to an 

admonishment, and awarded backpay. However, in response to the Union’s preliminary 

request for attorney fees, the Arbitrator denied the Union attorney fees. The Union filed

a contrary-to-law exception claiming that the denial of attorney fees was premature. The 

Authority found that because the Arbitrator denied the request for attorney fees before the 

Union had an opportunity to submit a petition for fees, and before the Agency had an 

opportunity to respond to a petition, the Arbitrator’s denial of attorney fees was contrary 

to law. Therefore, the Authority modified the award to strike the denial of attorney fees, 

without prejudice to the Union’s right to file a petition for attorney fees with the 

Arbitrator.

CASE DIGEST: U.S. DHS, Citizenship & Immigration Services, Dist. 18, 71 FLRA 167 

(2019) (Member DuBester dissenting)

This case concerned a grievant who was suspended for fourteen days for a second 

misconduct offense. The Arbitrator reduced the grievant’s fourteen-day suspension to a 

one-day suspension because he found that the misconduct was her first offense. The 

record demonstrated that the misconduct was her second offense. The Authority found 

that the Arbitrator’s mitigation of the suspension was based on a nonfact and vacated the 

award. 

Member DuBester dissented, finding that although the grievant’s misconduct 

underlying the suspension was her second disciplinary offense, the Agency’s 

progressive-discipline regulation does not definitively require a fourteen-day suspension

for a second disciplinary offense. Therefore, he would have remanded the award to the 

parties for resubmission to the Arbitrator, absent settlement, to determine the appropriate 

remedy consistent with this decision.

CASE DIGEST: U.S. Dep’t of VA, Malcolm Randall VA Med. Ctr., Gainesville, Fla., 

71 FLRA 170 (2019) (Member Abbott dissenting)

On multiple occasions, certain Union officials were unable to locate emails that 

they had stored within “.pst” files on the Agency’s electronic records system. The 

Arbitrator did not determine why those officials were unable to locate the files, but he 

found that the Agency violated the parties’ collective-bargaining agreement because the
records system did not permit Union officials to “retain[]” emails for later use. The 

Arbitrator also concluded, based on hearing testimony unrelated to the .pst files, that the 

Agency “appear[ed]” to violate the parties’ agreement by utilizing technology that 

allowed emails to expire.

On exceptions, the Agency alleged that both contractual violations were based on 

nonfacts. The Authority denied the nonfact exception challenging the first contract 

violation because, even assuming that the challenged finding was factual, the parties 

disputed that matter at arbitration. As for the second violation, it was undisputed that the 

relevant hearing testimony concerned copies of emails that were temporarily saved in a 

backup system. Accordingly, the Arbitrator’s conclusion that “live” emails had expired

was based on an erroneous factual finding, and the Authority set aside that portion of the 

award.

Member Abbott dissented, asserting that it was time to reevaluate the Authority’s 

nonfact standard. He noted the prohibition on challenging factual findings that were 

disputed below was an added prong that has been applied with undefined and inconsistent 

elasticity. Further, he called for revising the standard to put more weight on whether the 

disputed fact was central to the result and whether it was “but for which” the arbitrator 

would have reached a different result. 

CASE DIGEST: U.S. DOD, U.S. Marine Corps Air Ground Combat Ctr., Twentynine 

Palms, Cal., 71 FLRA 173 (2019) (Member DuBester dissenting).

This case concerned an arbitrator’s jurisdiction to resolve a grievance seeking a 

promotion and backpay for the grievant’s performance of duties allegedly outside of her 

position description and of a higher grade. The arbitrator found that she could hear the 

merits of the grievance pertaining to a violation of the parties’ agreement though exclude 

issues pertaining to classification. The Authority found that the agency’s exceptions 

were interlocutory, but because the grievance raised a plausible jurisdictional defect, 

review was warranted. As demonstrated by the requested remedy, the essential nature of 

the grievance was classification. Therefore, the Authority found 5 U.S.C. § 7121(c)(5) 

barred the grievance and set aside the interim award.

Member DuBester dissented, finding that the grievance, when read in its entirety, 

did not concern a classification matter within the meaning of § 7121(c)(5) of the Statute. 

Because he found that the Agency’s interlocutory exceptions to the Arbitrator’s interim 

award did not demonstrate that the award had a plausible jurisdictional defect, he would 

have dismissed the Agency’s exceptions.
CASE DIGEST: SSA, Office of Hearing Operations, 71 FLRA 177 (2019)

This case concerned challenges to an arbitrator’s findings that he did not actually 

make. The Union’s grievance alleged a violation of an Agency policy, which allows 

temporary telework for medical reasons, after the Agency denied the grievant’s request to 

telework following his back surgery. The Arbitrator found that the Agency violated the

policy, and directed the Agency to restore the grievant’s sick leave. On exceptions, the 

Agency argued that the award was based on nonfacts because the Arbitrator erroneously 

found that there was work available for the grievant to perform from home on particular 

dates. But the Arbitrator made no findings about those specific dates. Instead, he found 

that there was work the grievant could have performed at home at the time of his 

telework request. The Authority found that the Agency’s nonfact exceptions challenged

alleged findings that the Arbitrator did not make and, therefore, denied the exceptions.

CASE DIGEST: U.S. Dep’t of the Treasury, Office of the Comptroller of the Currency, 

71 FLRA 179 (2019) (Member DuBester dissenting)

This case concerned the procedural arbitrability of the grievance. The Arbitrator 

found that the parties’ collective-bargaining agreement required arbitration to be 

scheduled within six months of the invocation of arbitration and that the Union, here, 

complied over seven months later. The Arbitrator ruled that the grievance was arbitrable 

because the hearing was not unduly delayed. The Authority found the 

procedural-arbitrability determination failed to draw its essence from the parties’ 

agreement and set aside the award. 

Member DuBester dissented, finding that the Arbitrator properly found the grievance 

procedurally arbitrable. He concluded that the Arbitrator correctly considered the parties’ 

bargaining history, past practices, and the context in which the arbitrability dispute arose 

in interpreting an ambiguous provision of the parties’ collective-bargaining agreement 

concerning scheduling arbitration hearings. Finding that the Arbitrator properly 

concluded that the Union complied with the provision, Member DuBester would have 

denied the Agency’s challenge to the Arbitrator’s procedural-arbitrability determination.

CASE DIGEST: U.S DOJ, Fed. BOP, Fed. Corr. Inst., Dublin, Cal., 71 FLRA 183 

(2019) (Member DuBester dissenting)

This case concerned the Agency’s decision to vacate certain mission-critical posts

in the absence of an emergency or other rare circumstance. The Arbitrator found that by 

vacating the posts, the Agency violated Article 27 of the parties’ collective-bargaining 

agreement. Thus, she directed the Agency to cease and desist that practice. The

Arbitrator further found that the Agency failed to comply with an earlier award 

addressing the same matter. 
The Agency filed exceptions to the award. To the extent that the Agency’s 

exceptions challenged the earlier award, the Authority dismissed them as untimely. 

However, the Authority addressed the Agency’s argument that the more recent award 

conflicted with management’s right to assign work under 5 U.S.C. § 7106(a)(2)(B). The 

Authority noted that the awarded cease-and-desist remedy precluded the Agency from 

vacating shifts except in emergency situations. Accordingly, consistent with Authority 

precedent, the Authority set aside the award as excessively interfering with the Agency’s 

statutory right to assign work.

Member DuBester dissented, finding that matter at issue was solely a compliance 

action designed to enforce the earlier award. Accordingly, he would have dismissed the 

Agency’s exceptions, in their entirety, as an improper collateral attack on the earlier 

award. 

CASE DIGEST: U.S. Dep’t of the Air Force, Minot Air Force Base, N.D., 71 FLRA 

188 (2019) (Member DuBester dissenting)

This case concerned the Union’s motion asking the Authority to reconsider its 

decision in U.S. Department of the Air Force, Minot Air Force Base, North Dakota,

70 FLRA 867 (2018) (Air Force) (Member DuBester dissenting). In Air Force, the 

Union filed both an unfair-labor-practice (ULP) charge and a grievance over the 

Agency’s decision to change its hazardous-duty-pay practices. The Arbitrator 

determined that 5 U.S.C. § 7116(d) did not bar the later-filed grievance. But the

Authority found that the ULP charge and the grievance (1) arose from the same set of 

factual circumstances and (2) advanced substantially similar legal theories. Accordingly,

the Authority concluded that § 7116(d) barred the grievance. 

Because the Union’s motion for reconsideration (1) attempted to relitigate the 

Authority’s conclusions in Air Force and (2) failed to establish that the Authority erred in 

concluding that the earlier-filed ULP barred the grievance, the Authority held that the 

Union did not establish extraordinary circumstances warranting reconsideration. 

Therefore, the Authority denied the motion.

Member DuBester dissented, asserting that he would have granted the motion for 

the reasons expressed in his dissent in Air Force.

CASE DIGEST: U.S. Dep’t of the Treasury, IRS, 71 FLRA 192 (2019) (Member 

DuBester dissenting)

This case concerned a Union-filed grievance alleging that the Agency, pursuant to 

a cost-shifting provision in the parties’ collective-bargaining agreement, was liable for all 

of the costs for a particular factfinding recommendation. Before the Arbitrator, the 

Agency filed a motion to dismiss, arguing that the dispute did not constitute a 

“grievance” under the Federal Service Labor-Management Relations Statute (the Statute). 

The Arbitrator denied the motion. In an interlocutory exception, the Agency argued to 
the Authority that the dispute was not a “grievance.” The Authority granted interlocutory 

review because the exception, if meritorious, would obviate the need for further arbitral 

proceedings. The Authority found that the dispute concerned “the effect or interpretation, 

or claim of breach, of a collective[-]bargaining agreement” – specifically, the costshifting provision – so it was a “grievance” under § 7103(a)(9)(C)(i) of the Statute.

Therefore, the Authority denied the exception.

Member DuBester dissented, stating that he would have adhered to previous precedent 

that required a party to demonstrate a “plausible jurisdictional defect” as a matter of law 

in order to warrant interlocutory review. Applying that standard, he would have 

dismissed, without prejudice, the Agency’s interlocutory exception.

CASE DIGEST: U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., 71 FLRA 

199 (2019) (Member DuBester dissenting)

This case concerned a new senior corporal policy (policy) that entailed additional 

tasks for the most senior corporal when no supervisor was on shift. The Arbitrator 

sustained the grievance, finding that the Agency made a change to conditions of 

employment that was more than de minimis when it implemented the policy before 

properly notifying and bargaining with the Union. He determined that a status-quo-ante 

(SQA) remedy was appropriate. The Authority found that the Arbitrator did not properly 

apply the FCI factors and the SQA remedy would be a costly waste of government 

resources, and, as such, would disrupt and impair the efficiency and effectiveness of the 

Agency’s operations. Accordingly, the Authority concluded that an SQA remedy is not 

appropriate or necessary, and modified the award to eliminate the SQA remedy and 

ordered the Agency to engage in post-implementation bargaining. 

Member DuBester dissented. He agreed that the Arbitrator should have 

articulated and applied the FCI factors, but would have applied them differently than the 

majority. Instead, he found there was sufficient record evidence to sustain the 

Arbitrator’s SQA remedy.