Federal Labor Relations Authority

Quarterly Digest Report: January 1, 2022 – March 31, 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: AFGE, Loc. 1612, Council of Prison Locs. #33, 72 FLRA 612 (2021) 

(Chairman DuBester dissenting)

In this case, the Authority upheld an Arbitrator’s finding that the Agency did not violate 

the Fair Labor Standards Act (FLSA) because it paid any delayed overtime compensation as 

soon after the regular pay period as was practicable. The Authority also found that the Union 

was not owed attorney’s fees or liquidated damages because it did not prevail under the FLSA. 

Therefore, the Authority denied the Union’s exceptions. 

Chairman DuBester dissented. He would have remanded the award because it did not 

contain the findings necessary to determine whether the Agency violated the FLSA.

CASE DIGEST: U.S. Dep’t. of VA, Off. of Info. & Tech., 72 FLRA 616 (2022) 

(Chairman DuBester, concurring)

After declaring the grievant absent without leave, the Agency imposed a three-day 

suspension. Based on the parties’ collective bargaining agreement, the Arbitrator found a written 

reprimand more appropriate and rescinded the suspension. The Agency filed a contrary-to-law 

exception arguing that Executive Order 13,839 superseded the parties’ agreement. Because the 

Agency could have, but failed to, present this argument to the Arbitrator, the Authority dismissed 

its exception. 

Chairman DuBester concurred in the decision to dismiss the Agency’s exception.
CASE DIGEST: AFGE, Loc. 3369, 72 FLRA 619 (2022) (Chairman DuBester concurring)

In the initial award, the Arbitrator found that the Agency did not have just cause to 

remove the grievant, and ordered the grievant be reinstated. Thereafter, the Arbitrator issued a 

clarification award, finding that the grievant was not eligible for the within-grade increases that 

would have accrued from the date of termination to the date of reinstatement. The Union filed 

exceptions to the clarification award. The Authority held that it lacked jurisdiction because the 

clarification award ultimately resolved the grievant’s removal, a matter described in § 7121(f) of 

the Federal Service Labor-Management Relations Statute, excluded from the Authority’s 

jurisdiction. 

Chairman DuBester concurred in the decision to dismiss the exceptions.

CASE DIGEST: U.S. DOJ, Exec. Off. of Immigr. Rev., 72 FLRA 622 (2022) (Member Kiko 

concurring; Chairman DuBester dissenting)

This case concerns the Union’s motion for reconsideration (motion) of the Authority’s 

decision in U.S. DOJ, Executive Office of Immigration Review, 71 FLRA 1046 (2020) 

(EOIR 2020) (then-Member DuBester dissenting). In EOIR 2020, the Authority found that U.S. 

DOJ, Executive Office of Immigration Review, Office of the Chief Immigration Judge, 56 FLRA 

616 (2000) (EOIR 2000) was incorrectly decided. As such, the Authority overruled EOIR 2000

and found that immigration judges are management officials, and therefore, excluded from being 

members of the bargaining unit pursuant to the Federal Service Labor-Management Relations 

Statute. In its motion, the Union argued that the Authority erred in its legal conclusions and 

factual findings. The Association of Administrative Law Judges and the American Federation of 

Government Employees, AFL-CIO, after the Authority granted permission, filed amicus curiae 

briefs. Because the Union failed to demonstrate extraordinary circumstances warranting 

reconsideration, the Authority denied the motion.

Member Kiko concurred, emphasizing certain plain and compelling circumstances that 

supported the decision in EOIR 2020 to re-examine the appropriateness of the unit of 

immigration judges and find that the judges were management officials.

Chairman DuBester dissented, concluding that the Union demonstrated extraordinary 

circumstances warranting reconsideration of EOIR 2020.

CASE DIGEST: U.S. Dep’t of the Army, U.S. Army Corps of Eng’r Dist., St. Paul, Minn., 

72 FLRA 634 (2022)

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

agreement and a memorandum of understanding when a supervisor covered vacant shifts because 

the supervisor’s action denied bargaining-unit employees opportunities to work overtime. 

Because the award was not consistent with the parties’ agreements, the Authority granted the 

Agency’s essence exception and set aside the award.
CASE DIGEST: U.S. DOJ, Fed. BOP Fed. Corr. Inst., Guaynabo, P.R., 72 FLRA 636 

(2022) (Member Abbott dissenting)

In this case, the parties selected the successor Arbitrator to assume the full arbitral 

authority of a previous arbitrator. The Authority found that the successor Arbitrator’s 

consideration of Fair Labor Standards Act allegations against the Agency was consistent with the 

previous arbitrator’s retention of jurisdiction. Accordingly, the Authority denied the Agency’s 

exceptions arguing that the successor Arbitrator was functus officio.

Member Abbott dissented, arguing the Arbitrator exceeded their authority, and would 

have granted the Agency’s exception.

CASE DIGEST: U.S. Dep’t of the Air Force, Air Force Materiel Command, 72 FLRA 640 

(2022)

In this case, the Arbitrator determined that the parties’ agreement barred any claims that 

occurred more than thirty days prior to the filing of the Union’s grievance. However, the 

Arbitrator also found that the Union’s remaining claims were timely as a possible continuing 

violation. On review, the Authority found that the Agency’s nonfact exception failed because it 

did not demonstrate that any of the Arbitrator’s findings are clearly erroneous. The Authority 

dismissed those arguments the Agency failed to raise before the Arbitrator, and denied the 

remaining exceptions. 

Chairman DuBester dissented, finding that the interlocutory exceptions should be 

dismissed because they failed to raise a plausible jurisdictional defect.

CASE DIGEST: NLRB, 72 FLRA 644 (2022) (Chairman DuBester concurring; 

Member Abbott concurring)

In this case, the Authority affirmed that § 7116(d) of the Federal Service 

Labor-Management Relations Statute is applied on an issue-by-issue basis. 

Chairman DuBester concurred. He agreed that interlocutory review was appropriate and 

that the Agency’s contrary-to-law and essence exceptions should be denied.

Member Abbott concurred, emphasizing portions of the record that distinguished this 

case from previous Authority decisions applying § 7116(d).

CASE DIGEST: AFGE, Loc. 3917, 72 FLRA 651 (2022) (Chairman DuBester concurring)

The Arbitrator found a grievance substantively nonarbitrable because it involved 

classification under § 7121(c)(5) of the Federal Service Labor-Management Relations Statute, 

and the Authority dismissed, in part, and denied, in part, Union-filed exceptions that challenged 

that finding.
Chairman DuBester concurred to dismiss, in part, and deny, in part, the Union’s 

exceptions.

CASE DIGEST: U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., 72 FLRA 656 (2021) 

(Member Abbott concurring; Chairman DuBester dissenting in part)

In a discipline case, the Arbitrator exceeded his authority by considering charges that 

were not sustained by the Agency and the grievant’s Whistleblower Protection Act (WPA) claim, 

when both were outside of the stipulated issue.

Member Abbott concurred in the decision, but wrote separately to highlight that the 

Authority’s Regulations do not universally demand that a party’s exception be automatically 

dismissed for failing to raise the specific argument below. Additionally, he noted that arbitrators 

should be hesitant to disturb discipline when a chosen penalty falls within the range established 

by an agency’s table of penalties.

Chairman DuBester dissented in part, finding that the Arbitrator did not exceed his 

authority by addressing whether the Agency’s disciplinary action violated the WPA.

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

72 FLRA 662 (2022) (Chairman DuBester concurring)

The Authority held that § 7121(d) of the Federal Service Labor-Management Relations 

Statute barred the grievance because it concerned the same matter raised in an earlier-filed equal 

employment opportunity (EEO) complaint. 

Chairman DuBester concurred. He noted that although the grievance concerned 

additional matters not included in the EEO complaint, the Arbitrator limited his review to a 

matter that was clearly covered by the EEO complaint.

CASE DIGEST: AFGE, Loc. 3703, 72 FLRA No. 666 (2022) (Chairman DuBester 

concurring)

The Union filed a grievance following the Agency’s denial of the grievants’ official time 

request. The Arbitrator denied the grievance finding it untimely and non-arbitrable. The Union 

argued that the arbitrability finding failed to draw its essence from the parties’ agreement. 

Because the Union’s essence argument disagreed with the weight the Arbitrator gave to evidence 

and failed to demonstrate that the Arbitrator’s interpretation of the agreement was implausible, 

irrational, or unfounded, the Authority denied the exception.

Chairman DuBester concurred in the decision to deny the Union’s exception.
CASE DIGEST: AFGE, Loc. 2119, 72 FLRA 669 (2022) (Chairman DuBester concurring)

When the Agency stopped regularly scheduling certain employees for weekend overtime, 

the Union argued that the Agency failed to give contractually required notice for changing 

overtime-assignment procedures. Because the Agency merely stopped assigning as much 

overtime, the Arbitrator found this was not a change to overtime-assignment procedures 

requiring notice. The Authority found that the Union failed to demonstrate that the award was 

deficient and denied the Union’s nonfact and essence exceptions.

Chairman DuBester concurred in the decision to deny the Union’s exceptions.

CASE DIGEST: U.S. Dep’t of the Army, U.S. Army Dental Activity, Fort Jackson, S.C., 

72 FLRA 672 (2022) (Chairman DuBester dissenting)

In this case, the Authority reaffirmed that parties may agree to exclude matters from the 

scope of their negotiated grievance procedure, and the Authority will enforce such exclusions.

Chairman DuBester dissented. In his view, granting interlocutory review was 

inappropriate and the Arbitrator’s arbitrability determination did not fail to draw its essence from 

the parties’ collective-bargaining agreement.

CASE DIGEST: U.S. Dep’t of VA, VA Hosp. Med. Ctr., 72 FLRA 677 (2022)

In this case, the Authority reaffirmed that, if an agency does not—or fails to—

demonstrate that an award of attorney fees is not in the interest of justice, an arbitrator’s award of 

fees is not contrary to the Back Pay Act.

CASE DIGEST: U.S. DOJ Fed. BOP, Fed. Corr. Inst., Ashland, Ky., 72 FLRA 681 (2022)

In a merits award, the Arbitrator found that the Agency violated the Fair Labor Standards 

Act and the parties’ collective-bargaining agreement; retained jurisdiction indefinitely to resolve 

implementation issues, including the amount of attorney fees; and set a deadline for an attorney 

fee petition (petition). In a fee award, the Arbitrator excused the Union’s late petition – filed one 

day after the deadline – and awarded all the attorney fees requested. The Agency filed 

exceptions to the fee award on contrary-to-law grounds. The Authority found that the Arbitrator 

was not functus officio, but that the fee award was deficient because it lacked specific findings to 

support the awarded fees. 

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

72 FLRA 684 (2022) (Chairman DuBester concurring)

The Agency filed an exception to an Arbitrator’s letter declining to rule on its motion to 

dismiss. Because the Arbitrator postponed determination of the issue until the hearing, the letter 

was neither an award nor a ruling to which an exception could be filed, and the Authority 

dismissed the Agency’s interlocutory exception. 
Chairman DuBester concurred in the decision to dismiss the Agency’s exception.

CASE DIGEST: U.S. Dep’t of the Treasury, IRS, 72 FLRA 687 (2022) 

(Chairman DuBester concurring)

The Arbitrator sustained the Union’s grievance alleging that the Agency violated the 

parties’ agreement and committed an unfair labor practice pursuant to §§ 7116(a)(1) and (5) of 

the Federal Service Labor-Management Relations Statute when it unilaterally implemented 

changes to the annual leave procedures for certain bargaining unit employees. The Authority 

denied the Agency’s exception because it did not establish that the award failed to draw its 

essence from the parties’ agreement. 

Chairman DuBester concurred in the decision to deny the Agency’s exception.

CASE DIGEST: U.S. Dep’t of the Air Force, 11th Wing Joint Base, Andrews, Md., 

72 FLRA 691 (2022)

The Arbitrator found that the Agency’s failure to bargain in good faith when 

implementing a new uniform requirement resulted in the grievants spending their own money to 

acquire uniforms, and awarded backpay. The Agency filed exceptions on the ground that the 

award was contrary to the Back Pay Act (Act). The Authority found that the Agency failed to 

demonstrate that the award was contrary to the Act and denied the exceptions.

CASE DIGEST: Int’l Bhd. of Boilermakers, Loc. 290, Bremerton Metal Trades Council, 

72 FLRA 694 (2022)

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

agreement and a memorandum of understanding by not selecting the grievant for a weekend 

overtime assignment. The Union filed exceptions to the award on bias, essence, and nonfact 

grounds. The Authority found that the Union failed to demonstrate that the award was deficient 

on any of these grounds and denied the exceptions.

CASE DIGEST: U.S. DHS, CPB, San Diego, Cal., 72 FLRA 698 (2022) (Member Abbott 

concurring; Chairman DuBester dissenting)

After the Agency temporarily revoked, and then restored, the grievant’s authorization to 

carry a firearm, the Union filed a grievance challenging the Agency’s actions. The Arbitrator 

found that the Union’s grievance was timely, in part. Because the Union did not file the 

grievance until the deadline in the parties’ collective-bargaining agreement had elapsed, the 

Authority held that the Arbitrator’s procedural-arbitrability determination failed to draw its 

essence from the parties’ agreement.

Member Abbott concurred, agreeing the grievance was untimely to avoid an impasse, but 

wrote separately to express his opinion that any question concerning authorization to carry a 

firearm in an official capacity is a matter of internal security and is left to the sole discretion of 

the Agency.
Chairman DuBester dissented. In his view, the Arbitrator’s conclusion that the 

restoration of the grievant’s firearm was timely grieved was a plausible interpretation of the 

parties’ agreement.

CASE DIGEST: AFGE, Loc. 2324, 72 FLRA 703 (2022) (Chairman DuBester concurring)

Because the Arbitrator’s award related to a removal, a matter described in § 7121(f) of 

the Federal Service Labor-Management Relations Statute, the Authority held that it lacked 

jurisdiction to review the Union’s exceptions.

Chairman DuBester concurred in the decision to dismiss the Union’s exceptions.

CASE DIGEST: AFGE, Loc. 2119, 72 FLRA 706 (2022) (Member Abbott concurring)

In this case, the Authority considered the negotiability of several provisions. As an initial 

matter, the Authority dismissed Provisions 1 and 4 through 11, without prejudice, for failing to 

meet the conditions governing review of negotiability appeals. Next, the Authority held that 

Provision 2, which restated an existing statutory right, was consistent with law. Consequently, 

the Authority ordered the Agency to rescind its disapproval of that provision. However, the 

Authority denied the petition as to Provisions 3 and 12 because those provisions affected 

management’s right to assign work under § 7106(a)(2)(B) of the Federal Service 

Labor-Management Relations Statute, and the Union did not argue that the provisions were 

negotiable under an exception to management’s rights. 

Member Abbott concurred, expressing his viewpoint that no purpose is served when 

parties insert language into collective bargaining agreements that merely restate or reiterate 

statutory rights.

CASE DIGEST: U.S. DOJ, Fed. BOP, Fed. Correctional Ctr., Terre Haute, Ind., 72 FLRA 

711 (2022) (Chairman DuBester dissenting)

Because the Arbitrator identified no wording in the parties’ agreement that permitted the 

Union’s untimely grievance, the Authority granted the Agency’s essence exception and vacated 

the award.

Chairman DuBester dissented, finding that the Arbitrator did not err by concluding that 

the grievance alleged a continuing violation and was therefore timely filed.

CASE DIGEST: U.S. Dep’t of the Air Force, Davis-Monthan Air Force Base, 72 FLRA 

716 (2022) (Chairman DuBester concurring)

After a district court enjoined an executive order, the parties negotiated a 

collective-bargaining agreement that conflicted with provisions of the executive order. When the 

United States Court of Appeals for the District of Columbia Circuit lifted the injunction, 

President Trump issued a Presidential Memorandum amending the executive order to exempt 

conflicting collective-bargaining agreements executed during the injunction period. Because the 

Presidential Memorandum amended the executive order, the Authority concluded that the 
Arbitrator’s consideration of the Presidential Memorandum was responsive to the parties’ 

stipulated issues and denied the Agency’s exceptions. 

Chairman DuBester concurred with the decision to deny the Agency’s exceptions.

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

Buchanan, P.R., 72 FLRA 720 (2022) (Chairman DuBester concurring; 

Member Abbott dissenting)

The Union filed a motion for reconsideration of the Authority’s order to resume 

bargaining over work hours and compensation. Although the Union filed its motion within ten 

days of an Authority decision on remand from the U.S. Court of Appeals for the District of 

Columbia Circuit, the Authority found that the motion directly challenged the unchanged 

bargaining order from the Authority’s decision two years earlier in DOD, Domestic Dependent 

Elementary & Secondary Schools, Fort Buchanan, P.R., 71 FLRA 127 (2019) (DOD) 

(then-Member DuBester dissenting). Thus, the Authority dismissed the reconsideration motion 

as untimely.

Chairman DuBester concurred in the decision to dismiss the Union’s motion but noted 

that he continues to disagree with the Authority’s decision in DOD.

Member Abbott dissented, arguing the Union’s motion presented extraordinary 

circumstances to the 2021 Order that warranted reconsideration.

CASE DIGEST: Fed. Educ. Assoc., Stateside Region, 72 FLRA 724 (2022)

The Arbitrator denied a grievance alleging that the Agency violated the parties’ 

collective-bargaining agreement regarding reduction-in-force procedures and vacancy-notice 

requirements when the Agency reassigned employees. The Union filed exceptions on nonfact, 

contrary-to-law, and essence grounds. Because the Union failed to demonstrate that the award 

was deficient on any of those grounds, the Authority denied the exceptions.