Federal Labor Relations Authority

Quarterly Digest Report: January 1, 2019 - March 31, 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.

U.S. Dep’t of VA, St. Petersburg Reg’l Benefit Office, 71 FLRA 1 (2019) 

(Member DuBester dissenting)

The Union filed a motion for reconsideration of U.S. Department of VA, 

St. Petersburg Regional Benefit Office (VA II), 70 FLRA 586 (2018) (Member DuBester 

dissenting), where the Authority found that the Arbitrator failed to grant an appropriate 

remedy on remand. In its motion for reconsideration, the Union argued that the Authority 

did not defer to the Arbitrator’s various factual findings, and violated the Administrative 

Procedure Act by setting aside the remand award rather than remanding the case yet 

again for resubmission to the Arbitrator to fashion an appropriate remedy. 

The Authority found it was under no obligation to defer to the Arbitrator’s 

determinations in areas beyond the Arbitrator’s authority. The Authority also found it not 

appropriate to remand a case a second time where an arbitrator has already failed to grant 

an appropriate remedy upon remand. 

Member DuBester dissented, finding that the majority erroneously rejected the 

Arbitrator’s findings and conclusion. He would have granted the motion for 

reconsideration. Member DuBester also found that the majority’s failure to remand the 

case to the parties was inconsistent with Authority precedent and violated the 

Administrative Procedure Act.
Fraternal Order of Police, Lodge NO. 1, 71 FLRA 6 (2019)

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

filed a grievance challenging the grievant’s fourteen-day suspension. The Arbitrator

issued an award sustaining the Union’s grievance and reversing the grievant’s 

fourteen-day suspension. However, in response to the Union’s statement that it sought 

attorney fees, the Arbitrator denied the Union attorney fees because the Union made no 

attempt to demonstrate a statutory entitlement to the fees before he issued the merits 

award. The Authority found that the Arbitrator’s denial of attorney fees is contrary to 

law 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. Accordingly, 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. 

U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Englewood, Colo., 71 FLRA 8 (2019) 

(Chairman Kiko and Member Abbott concurring)

This case concerned an arbitrator’s award of liquidated damages under the Fair 

Labor Standards Act (FLSA). The grievance alleged that the Agency violated the FLSA 

by untimely paying grievants overtime. Finding that the Agency violated the FLSA, the 

Arbitrator awarded liquidated damages. On exception, the Agency argued that the award 

of liquidated damages is contrary to the FLSA because there was no unpaid overtime. 

The Authority noted that the Agency did not dispute that it violated the FLSA by failing 

to pay overtime in a timely manner, nor did it challenge the Arbitrator’s conclusion that 

the Agency failed to meet its substantial burden of demonstrating that liquidated damages 

were not warranted. Accordingly, the Authority concluded that the Agency failed to 

demonstrate that the award is contrary to law, and denied the Agency’s exception. 

Chairman Kiko concurred, noting that a Department of Labor regulation allows 

delayed overtime compensation when the correct amount of overtime cannot be 

determined until after the regular pay period. However, the Arbitrator found that 

regulation inapplicable and the Agency did not provide a basis for reversing that 

determination. 

Member Abbott also concurred, agreeing with Chairman Kiko’s concurrence, and 

noting that the Agency conceded that it committed a technical violation of the FLSA.

U.S. Dep’t of State, Passport Servs., 71 FLRA 12 (2019)

This case concerned whether the Agency failed to comply with a settlement 

agreement, which required the Agency to notify employees, “generally” within two 

hours, of an Agency computer outage so that employees would know what production 

quotas applied on the day of the outage. The Arbitrator found that the Agency violated 

the agreement by failing, on numerous occasions, to provide notification within the 
two-hour period. As a remedy, the Arbitrator directed the Agency to stop violating the 

agreement.

On exceptions, the Agency raised nonfact and essence arguments. The Authority 

denied the nonfact exception because it challenged the Arbitrator’s interpretation of the 

agreement, not a factual matter. As to the essence exception, the Authority found that the 

Arbitrator’s interpretation and application of the term “generally” was consistent with 

both the dictionary definition of the term and the agreement’s notification requirement. 

The Authority further found that the Agency failed to demonstrate that the Arbitrator 

lacked the contractual authority to direct the Agency to comply with the agreement. 

Accordingly, the Authority denied the essence exception.

U.S. Dep’t of HUD, 71 FLRA 17 (2019) (Member DuBester dissenting)

The Union filed a motion asking the Authority to reconsider U.S. Dep’t of HUD, 

70 FLRA 122 (2018) (HUD VIII) (Member DuBester dissenting). In HUD VIII, the 

Authority vacated HUD I through HUD VII and the Arbitrator’s awards and written 

summaries after finding that the original grievance concerned classification and that the 

Arbitrator always lacked jurisdiction over the grievance.

The Authority found that although prior arbitration awards and written summaries 

were final and binding, it was appropriate to consider whether jurisdiction existed, and 

that its decision did not deprive the Union or the grievants of due process. Accordingly, 

the Authority denied the Union’s motion because it failed to establish extraordinary 

circumstances warranting reconsideration of HUD VIII. 

Member DuBester dissented and would have granted the motion because the 

Union’s arguments raised extraordinary circumstances. 

U.S. DOD, Missile Def. Agency, Redstone Arsenal, Ala., 71 FLRA 22 (2019) 

(Member DuBester dissenting)

The Agency filed a motion asking the Authority to reconsider U.S. DOD, Missile 

Defense Agency, Redstone Arsenal, Alabama, 70 FLRA 611 (2018) (Redstone Arsenal) 

(Member DuBester dissenting). In Redstone Arsenal, the Union filed an 

unfair-labor-practice charge against the Agency after it denied the Union’s request to host 

“lunch and learns” on an Agency-controlled property. The Administrative Law Judge 

granted the FLRA General Counsel’s motion for summary judgment, finding that the 

Agency discriminated against the Union in violation of 5 U.S.C. § 7116(a)(1) by denying 

the Union’s request “while allowing visiting vendors to engage in commercial 

solicitation.” The Authority remanded the matter to the judge for a hearing because there 

was insufficient evidence in the record to find whether the Agency had acted in a 

discriminatory manner.

In its motion, the Agency made several arguments about whether the Union 

requested to solicit anyone. Because the Agency’s motion for reconsideration 
(1) attempted to relitigate the Authority’s conclusions in Redstone Arsenal and (2) was 

based on a misinterpretation of that decision, the Authority denied the motion, finding 

that it had not established extraordinary circumstances warranting reconsideration. 

Member DuBester dissented, noting that although he would have also denied the 

Agency’s motion, he did not believe the matter warranted remand to the Administrative 

Law Judge for the reasons he set forth in Redstone Arsenal. 

SPORT Air Traffic Controllers Org., 71 FLRA 25 (2019) (Member DuBester 

concurring)

The Union filed a motion for reconsideration of SPORT Air Traffic Controllers 

Organization (SPORT), 70 FLRA 554 (2018) (Member DuBester concurring). In 

SPORT, the Authority upheld the Judge’s findings that the Union’s refusal to recognize 

the Agency’s bargaining representatives was an unfair labor practice. As the Union 

raised a new argument for the first time on its motion for reconsideration and otherwise 

attempted to relitigate arguments already rejected by the Authority in SPORT, the 

Authority denied the Union’s motion for reconsideration because it failed to establish 

extraordinary circumstances. 

Member DuBester concurred in the decision.

U.S. Dep’t of Transp., FAA, 71 FLRA 28 (2019) (Member Abbott concurring; 

Member DuBester dissenting)

The Agency filed an application for review of an FLRA Regional Director’s 

(RD’s) decision finding that certain employees are not confidential employees within the 

meaning of 5 U.S.C. § 7103(a)(13). The Authority noted that the employees were 

responsible for assisting their supervisor with responding to formal grievances and 

Union-filed unfair-labor-practice (ULP) charges. Although the employees had not yet 

had an opportunity to assist their supervisor with those matters, that did not end the 

inquiry as to whether they are confidential. To determine whether an employee is 

confidential, the Authority clarified that it will consider duties the employee may be 

called upon to perform, not just duties already performed.

Member Abbott concurred, noting that the FLRA RDs operate under delegated 

authority, and the Federal Service Labor-Management Relations Statute mandates that 

the Authority completely review any RD determination made pursuant to that delegated 

authority.

Member DuBester dissented, asserting that Authority precedent and the record 

supported the RD’s decision. He also would not have rejected the parties’ agreement to 

use representative witnesses. Thus, he would have found it unnecessary to remand the 

matter to the RD. 
U.S. DHS, U.S. CBP, El Paso, Tex., 71 FLRA 49 (2019) (Member DuBester 

dissenting)

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

decision in U.S. DHS, U.S. CBP, El Paso, Texas, 70 FLRA 501 (2018) (DHS I) 

(Member DuBester dissenting). In DHS I, the Authority overturned precedent holding 

that there is no substantive difference between the terms “conditions of employment” and 

“working conditions,” as used in 5 U.S.C. § 7103(a)(14). Specifically, the Authority 

found that those different terms – one of which Congress used to define the other –

cannot mean the same thing. 

In the motion, the Union argued that the Authority misapplied the U.S. Supreme 

Court’s decision in Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) (Fort Stewart). 

However, the Authority stated that it based its conclusion in DHS I on the plain wording 

of § 7103(a)(14) – not Fort Stewart. Moreover, the Authority noted that in Fort Stewart

the Court recognized that “conditions of employment” and “working conditions” are

susceptible to distinct interpretations. Thus, the Union’s motion failed to establish 

extraordinary circumstances warranting reconsideration of DHS I, and the Authority 

denied it.

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

the reasons expressed in his dissent in DHS I.

U.S. Dep’t of the Army, Aberdeen Proving Ground, Research, Dev. & Admin., 

Aberdeen Proving Ground, Md., 71 FLRA 54 (2019) (Member DuBester dissenting)

This case concerned the Arbitrator’s interpretation of the parties’ 

collective-bargaining agreement as requiring the Agency to follow certain procedures 

when interviewing job candidates. The Arbitrator found that the composition of an 

“interview panel” – used for evaluating job candidates on a referral certificate – did not 

comply with the agreement’s requirements for a “rating panel” – used for determining 

applicants’ eligibility for a position before the Agency receives a referral certificate. On 

exceptions, the Authority found that the parties’ agreement permitted the Agency to 

interview candidates on a referral certificate without any rating-panel restrictions. Thus, 

it was implausible for the Arbitrator to find that the rating-panel provision of the parties’ 

agreement also governed interview panels. Accordingly, the Authority set aside the 

award as failing to draw its essence from the parties’ agreement.

Member DuBester dissented, finding that the Arbitrator properly interpreted the 

parties’ agreement to require the Agency to apply the rating-panel requirements to panels 

at all steps of the candidate-evaluation process. Thus, he would have denied the essence 

exception.
SSA, 71 FLRA 57 (2019) (Member DuBester concurring)

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

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

rating rather than the less favorable “successful” rating. The Arbitrator found the Agency 

failed to properly consider the grievant’s self-assessment and rebuttal to its 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 found the Agency’s performance 

assessment system was “wrong,” contrary to government-wide regulations concerning 

employee performance appraisal. The Authority found that the Agency’s exceptions 

relied on a misinterpretation of the Arbitrator’s award, as the Arbitrator determined that 

the Agency’s appraisal process was a fair and appropriate procedure but found 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 concurred in the decision to deny the Agency’s exceptions.

Indep. Union of Pension Emps. for Democracy & Justice, 71 FLRA 60 (2019) 

(Member DuBester concurring)

The Union filed a motion for reconsideration of Independent Union of Pension 

Employees for Democracy and Justice (IUPEDJ I), 70 FLRA 820 (2018) 

(Member DuBester concurring). In IUPEDJ I, the Authority found that the Chief 

Administrative Law Judge properly granted a motion for summary judgment, found that 

the Union committed an unfair labor practice by improperly attempting to dismantle a 

duly assembled arbitration panel, and modified the remedy to include an additional 

arbitrator. In its motion for reconsideration, the Union repeated arguments it had made in 

IUPEDJ I, and also argued that the General Counsel did not request the modified remedy. 

Additionally, according to the Union, the Authority accused the Union of “not doing 

arbitrations for employees” and “blame[d] the Union for the proceedings.” The 

Authority found that the Union’s motion presented arguments that the Authority had 

already considered and rejected in IUPEDJ I, mischaracterized IUPEDJ I, or relied on 

dicta. Therefore, the Authority concluded that the Union failed to demonstrate 

extraordinary circumstances warranting reconsideration and denied the Union’s motion. 

Member DuBester concurred in the decision.

Member DuBester concurred in the decision.

USDA Animal & Plant Health Inspection Serv., Plant Prot. & Quarantine, 71 FLRA 

64 (2019) (Chairman Kiko dissenting)

This case concerned the application of the U.S. Office of Personnel 

Management’s add-on rule, which allows an agency to find that employees subject to 

inservice placement actions meet the minimum qualifications of a position. The Agency 
reclassified the employees’ positions within the General Schedule and ten years later, 

upon reexamining their qualifications, failed to promote the primary grievant and found 

several others unqualified for their jobs for failing to meet their positions’ minimum 

education requirements. The Arbitrator found that the add-on rule applied because the 

employees had been “reassigned” and directed the Agency to promote the primary 

grievant and correct the personnel records of the other employees to reflect they were 

fully qualified for their positions. 

On exceptions, the Agency argued that the add-on rule cannot waive minimum 

education requirements. The Authority found that the Arbitrator’s award did not require 

the Agency to waive the minimum education requirements and noted that the affected 

employees had been performing successfully in their reclassified positions for the last ten 

years, consistent with the underlying purpose of minimum education requirements. 

Chairman Kiko dissented, finding the award contrary to the add-on rule because the 

grievants’ positions had never changed.