Federal Labor Relations Authority

Quarterly Digest Report: January 1, 2020 – March 31, 2020

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 VA, John J. Pershing Veterans Admin., 71 FLRA 511 (2020)

In this case, the Agency filed exceptions challenging an arbitrator’s awarded remedy and 

his determination that the grievance was timely filed. Because the Agency could have – but did 

not – raise its arguments concerning the remedy at arbitration, the Authority found that 

§§ 2425.4(c) and 2429.5 of the Authority’s Regulations barred the Authority from considering 

those arguments. Regarding the timeliness of the grievance, the Arbitrator did not state the filing 

date in the award. Under § 2425.4(a)(2) and (3) of the Authority’s Regulations, the excepting 

party must ensure that its exceptions are self-contained and include supporting documentation. 

But the Agency did not provide the Authority any documentary evidence to support its alleged 

filing date. Accordingly, the Authority denied the Agency’s exception as unsupported. 

CASE DIGEST: NAIL, Local 10, 71 FLRA 513 (2020) 

This case concerns the Arbitrator’s application of the doctrine of collateral estoppel. The 

Arbitrator granted the Agency’s motion to dismiss the Union’s grievance on the ground that the 

Union was collaterally estopped from arguing that the grievants had been temporarily promoted 

to GS-12 positions. The Union argued that the award is based on a nonfact, is contrary to law, 

fails to draw its essence from the parties’ collective-bargaining agreement, and that the Arbitrator 

exceeded his authority. The Authority denied the Union’s first three exceptions because the 

Union did not demonstrate that the issue in this grievance differed from the issue in the prior 

grievance. The Authority denied the Union’s exceeded-authority exception because the award 

responds to the issue framed by the Arbitrator.
CASE DIGEST: U.S. Dep’t of Educ., 71 FLRA 516 (2020) (Member DuBester concurring)

In this case, the Agency filed a motion to dismiss alleging that the grievance was barred 

under § 7116(d) of the Federal Service Labor-Management Relations Statute (Statute) by an 

earlier-filed unfair labor practice (ULP) charge addressing the same issues. Although the 

Arbitrator concluded that the Union could not simultaneously pursue its ULP charge and its 

grievance in different forums, he suspended the Union’s grievance pending resolution of the 

ULP charge instead of dismissing it. The Agency excepted to the Arbitrator’s award, arguing 

that both § 7116(d) and the parties’ agreement required the Arbitrator to dismiss the grievance. 

The Authority found that the Agency’s exceptions were interlocutory, but that there were 

extraordinary circumstances warranting review. The Authority concluded that the grievance was 

not barred under § 7116(d) and remanded the matter to the parties for resubmission to the 

Arbitrator. 

Member DuBester concurred in finding that § 7116(d) did not bar the grievance.

CASE DIGEST: U.S. Dep’t of the Army, 71 FLRA 522 (2020) (Member DuBester dissenting)

In this case, the Arbitrator found arbitrable a grievance seeking to change employees’ 

exemption status under the Fair Labor Standards Act (FLSA). The Authority granted 

interlocutory review. Because the FLSA grievance did not involve classification under

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

the Agency’s exceptions. 

Member DuBester dissented, finding that the interlocutory exceptions should be 

dismissed because they failed to raise a plausible jurisdictional defect.

CASE DIGEST: U.S. Dep’t of the Treasury, IRS, 71 FLRA 527 (2020)

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

and several other agreements when a management panel who reviewed the grievant’s receipt of a 

performance award considered the grievant’s admitted misconduct and tax noncompliance. The 

Authority found that the Arbitrator’s award was contrary to the Department of the Treasury 

Appropriations Act of 2016 (Appropriations Act) because the award required the Agency to 

grant the performance award despite the panel’s determination that denying the award was 

necessary to protect the integrity of the service. The Authority also found the award did not 

draw its essence from one of the parties’ agreements because the award evidenced a manifest 

disregard of the unambiguous wording of that agreement. Accordingly, the Authority vacated 

the award.

Member DuBester dissented, finding that the award enforced the requirement that the 

Agency take into account employees’ conduct and Federal tax compliance – as required by the 

Appropriations Act – in a manner consistent with the standards and procedures established by the 

parties for this purpose
CASE DIGEST: U.S. Dep’t of VA, John J. Pershing VA Med. Ctr. 71 FLRA 533 (2020)

The grievance alleged that the grievant’s retirement was not voluntary because he had 

been coerced into retiring when he was served with a removal letter. The Arbitrator found that 

the grievant’s retirement should be considered a removal, and she ordered reinstatement with 

backpay. On exceptions, the Agency argued that the grievance was substantively not arbitrable 

because the grievant elected to pursue the matter through Equal Employment Opportunity 

procedures. The Authority found that the grievance related to a removal. Under § 7121 of the 

Federal Service Labor-Management Relations Statute, the Authority lacks jurisdiction to resolve 

exceptions to awards relating to removals. Accordingly, the Authority lacked jurisdiction and 

dismissed the exceptions.

CASE DIGEST: AFGE, Local 2846, 71 FLRA 535 (2020)

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

agreement when it rated the grievant’s performance, and she denied the grievance. The 

Authority dismissed the Union’s contrary-to-law and essence exceptions because the Union 

failed to raise its arguments before the Arbitrator. The Authority denied the Union’s remaining 

exceptions because the Union did not demonstrate that the award was impossible to implement 

or that a central fact underlying the award was clearly erroneous. 

CASE DIGEST: DOJ, Federal BOP, U.S. Penitentiary McCreary, Pine Knot, Ky., 71 

FLRA 538 (2020) (Member DuBester concurring)

An FLRA Administrative Law Judge (the Judge) found that the Agency committed an 

unfair labor practice (ULP) under § 7116(a)(1) and (5) of the Federal Labor-Management 

Relations Statute (the Statute) when it denied the Union’s attorneys access to the prison lobbies 

for observing shift changes to gather information in connection with pending grievances. In its 

exceptions, the Agency argued that the Judge denied it due process by sustaining the charges on 

a theory not argued at the hearing and that the Judge’s decision violated the management right to 

determine internal security practices. The Authority found that the Agency was afforded 

adequate notice by the General Counsel’s complaint, that the Agency had a reasonable 

opportunity to litigate the issues at the hearing, and that the surrounding circumstances 

demonstrated that the Agency violated the Statute by preventing the Union’s attorneys from 

observing shift changes at the Agency’s lobbies. Accordingly, the Authority denied the 

Agency’s exceptions. 

Member DuBester concurred with the Decision to adopt the Judge’s recommended 

decision and to deny the Agency’s exceptions.
CASE DIGEST: Bremerton Metal Trades Council, 71 FLRA 569 (2020) 

This case concerned whether employees were entitled to compensatory time in lieu of 

premium pay for certain overtime assignments. Arbitrator Stephen Douglas Bonney found that, 

under federal law, employees were not entitled to compensatory time for the assignments at 

issue. The Union filed an essence exception, which the Authority denied as unsupported. 

CASE DIGEST: SSA & AFGE, Local 1164, 71 FLRA 580 (2020) (Member DuBester 

concurring).

The sole issue in this case is whether the grievance is procedurally arbitrable. The 

Arbitrator found that the grievance was arbitrable because the parties “mutually consented” to an 

extension of the deadline for arbitration contained in their agreement. We find that the Agency 

failed to demonstrate that the award was deficient, because its exceptions are merely 

disagreements with the Arbitrator’s interpretation of the parties’ agreement.

Member DuBester concurred in the Order denying the Agency’s exceptions.

CASE DIGEST: U.S. Dep’t of VA, Health Resources Center, Topeka, Kan., 71 FLRA 583 

(2020)

In this case, the Arbitrator found that the Agency failed to terminate the grievant before 

the end of her probationary period and, as a result, denied her the due process to which she was 

entitled as a tenured employee. The Agency filed exceptions, but the Authority found that it 

lacked jurisdiction under § 7122(a) of the Statute because the award related to a matter described 

under § 7121(f). Specifically, the Authority found that the issue raised at arbitration, i.e., 

whether the grievant had completed her probationary period, was inextricably intertwined with a 

removal matter that could have been reviewed by the MSPB and, on appeal, by the Federal 

Circuit. Accordingly, the Authority dismissed the exceptions. 

CASE DIGEST: AFGE, Local 2228 and U.S. Dep’t of the Air Force, 28th Force Support 

Squadron (AFGSC), Ellsworth Air Force Base, S.D., 71 FLRA 586 (2020) (Member Abbott 

concurring) 

This case concerned the negotiability of one proposal. The Authority found that the 

Union failed to timely file its petition, and dismissed it.

CASE DIGEST: SSA, Office of Hearings Operations & IFPTE, Ass’n of Admin. Law Judges, 71 

FLRA 589 (2020) (Member DuBester dissenting in part)

This case involves another alleged violation of the telework provision in the parties’ 

agreement. The Agency denied the grievant’s telework request because the grievant did not 
satisfy the requirement to schedule a reasonably attainable number of cases for hearing per 

month. The Arbitrator found that the Agency violated the parties’ agreement when it denied the 

grievant’s telework request, and ordered the Agency to allow the grievant to telework if he 

scheduled an average of forty-seven cases for hearing per month and to have a collegial 

conversation with the grievant before restricting telework in the future. The Authority found that 

the award is contrary to law, in part, because it excessively interferes with management’s rights 

to direct employees and assign work.

Member DuBester dissented in part. He would find that, under applicable Authority 

precedent, the award is not contrary to law.

CASE DIGEST: U.S. Dep’t of VA, Cent. Ark. Veterans Healthcare Sys. Cent., 71 FLRA 

593 (2020) (Member DuBester concurring)

This case concerned grievants who successfully sought environmental-differential pay 

because they worked in close proximity to high-hazard microorganisms. The Arbitrator found 

that the grievants are frequently exposed to biohazardous waste, needles, and other sharp objects 

that may contain high-hazard microorganisms. He also found the grievants’ training, protective 

equipment, and position descriptions to be deficient and, therefore, sustained the grievance and 

awarded backpay, with interest. The Agency challenged the award as being contrary to 5 U.S.C. 

§ 5343(c)(4) and 5 C.F.R. § 532.511. However, the Agency failed to demonstrate that the 

grievants are not frequently exposed to objects that may contain high-hazard microorganisms. 

Furthermore, the Agency failed to demonstrate that the Arbitrator was biased or that the award 

was based on nonfacts. Accordingly, the Authority denied the Agency’s exceptions.

Member DuBester concurred in the Decision to deny the Agency’s exceptions.

CASE DIGEST: U.S. DHS, CBP, U.S. Border Patrol, El Paso Sector, 71 FLRA 597 (2020) 

(Member DuBester dissenting)

This case concerned the Arbitrator’s finding that the Agency’s delay in investigating the 

grievant for his admitted misconduct amounted to “gross procedural error” for purposes of 

awarding attorney fees under the Back Pay Act. The Authority determined that the length of the 

Agency’s investigation did not cause the grievant to suffer prejudice and burden that amounted 

to gross procedural error under 5 U.S.C. § 7701(g)(1). Accordingly, the Authority set aside the 

Arbitrator’s fee award as contrary to law. However, because the record was sufficient to do so, 

the Authority evaluated the Union’s other arguments alleging that attorney fees were warranted 

in the “interest of justice” under § 7701(g)(1). As none of the other raised interest-of-justice 

criteria were satisfied, the Authority concluded that attorney fees were not warranted.
Member DuBester dissented, finding that the Arbitrator’s conclusion that the Agency 

committed gross procedural error under the circumstances of this case was consistent with 

applicable precedent.

CASE DIGEST: AFGE, Nat’l Council of EEOC Locals No. 216, 71 FLRA 535 (2020)

This case concerned the negotiability of ground-rules proposals to govern mid-term 

bargaining. Initially, the Authority found that a proposal that appeared only in an attachment to 

the petition for review was not before the Authority for a decision. Further, the Authority found 

that the Union permissibly modified the wording of its proposals at the post-petition conference.

Proposal 1 required the Agency’s chair to provide a list of negotiators to the Union, or to 

designate another employee to provide that list. The Authority found that Proposal 1 was outside 

the duty to bargain because it affected management’s right to assign work under § 7106(a)(2)(B). 

Proposal 2 concerned a wholly discretionary process that, based on the Union’s statement of 

intent, the Authority found was essentially meaningless and, consequently, nonnegotiable. 

Proposal 3 addressed when the Agency would pay for travel and per diem for negotiations, and 

how the parties would resolve negotiation impasses. The Authority found that Proposal 3 was 

covered by the parties’ collective-bargaining agreement. Proposal 4 prohibited the use of 

transcripts and recording devices for negotiation sessions, but permitted the parties to take notes. 

The Authority found that Proposal 4 concerned a mandatory subject of bargaining and was 

negotiable. Accordingly, the Authority dismissed the petition, in part, and ordered the Agency to 

bargain, upon request, over Proposals 2 and 4.

Member DuBester dissented to the majority’s decision in regard to Proposals 1, 2, and 3. 

He found that Proposal 1 does not affect management’s right to assign work because it imposes 

no obligations beyond those required by the Federal Service Labor-Management Relations 

Statute. As to Proposal 2, he found it concerned a discretionary process for assigning duties to 

bargaining-team members, and the Agency failed to demonstrate that it affected management’s 

rights. And he found that Proposal 3 was not covered by the parties’ agreement.

CASE DIGEST: Arkansas Army Nat’l Guard & Ass’n of Civilian Technicians, 71 FLRA 612 

(2020)

Regional Director Richard S. Jones (the RD) issued a Decision and Order and Direction 

of Election, denying a request by the incumbent union – Laborers’ International Union of North 

America, Local 1776 (LIUNA) – that he reconsider his determination that the Association of 

Civilian Technicians (ACT) made an adequate showing of interest warranting an election. 

LIUNA filed an application for review with the Authority, requesting that the Authority order the 

RD to revisit the issue of the adequacy of ACT’s showing of interest and issue a stay of the order 

of election. The Authority denied LIUNA’s application for review because the RD’s decision on 

the adequacy of the showing of interest is not subject to review under the Authority’s 
Regulations, and LIUNA did not otherwise demonstrate a basis for review. Consequently, the 

Authority denied the request for a stay as moot.

CASE DIGEST: U.S. Dep’t of HUD & AFGE, Council 222, 71 FLRA 616 (2020) (Member 

DuBester concurring) 

The Arbitrator found that the Agency violated § 7116(a)(1), (5), and (8) of the Federal 

Service Labor-Management Relations Statute (the Statute) by failing to provide the information 

contained in the Union’s eight part information request and, therefore, failed to bargain in good 

faith. In its exceptions, the Agency argued that that the Union failed to establish a particularized 

need for all eight parts of the information request and that the information request is moot. The 

Authority found that the Union established a particularized need with its third and final 

information request and that the Union’s information request is not moot because the Agency 

failed to demonstrate that the unfair-labor-practice will not recur. Accordingly, the Authority 

denied the Agency’s exceptions. 

Member DuBester concurred in the Decision to deny the Agency’s exceptions

CASE DIGEST: U.S. DOJ, Fed. BOP, Fed. Corr. Inst. Tallahassee, Fla. (2020) 

(Member DuBester concurring)

Where the parties’ agreement requires that bargaining-unit employees be given “first 

consideration” for overtime, except in “emergency” situations, an arbitrator’s award premised on 

a reasonable and plausible finding that there was no emergency does not make the remedy –

awarding overtime to bargaining-unit employees who would have received the assignment –

contrary to management’s right to assign work.

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

Member DuBester also would find, applying the abrogation standard, that the award did not 

impermissibly encroach on a management right. 

CASE DIGEST: SPORT Air Traffic Controllers Org. & U.S. Dep’t of the Air Force, Edwards 

Air Force Base, Cal., 71 FLRA 626 (2020) (Member DuBester dissenting).

This case involves a dispute over which collective-bargaining agreement (CBA) was in 

effect when the Agency denied official time. The Arbitrator found that the Agency lawfully 

implemented a new CBA and, thus, did not violate the Federal Service Labor-Management 

Relations Statute, Agency regulation, or the new CBA when it failed to schedule the twenty 

hours per week of official time to which the Union president was entitled under the previous 

CBA. Because the grievance and an earlier-filed unfair-labor-practice charge both raised the 

same issue concerning the Agency’s implementation of the new CBA, the Authority found that 

the grievance was barred pursuant to § 7116(d) of the Federal Service Labor-Management 

Relations Statute.
Member DuBester dissented, finding that, under the unique circumstances of this case, § 

7116(d) of the Statute would not bar the Union’s grievance.

CASE DIGEST: U.S. Dep’t of the Navy, Marine Corps Air Station, Cherry Point N.C. and 

IAMAW, Local Lodge 2296, AFL-CIO, 71 FLRA 630 (2020) (Member Abbott dissenting)

This case concerned the Petitioner’s application for review of an FLRA 

Regional Director’s (RD’s) decision denying a petition to sever certain employees from a 

consolidated unit. The Union represents a bargaining unit of non-professional employees at the 

Agency. The RD found that the unit remained appropriate and no extraordinary circumstances 

warranted severing the employees from the unit. On review, the Authority found that the record 

supported the RD’s factual findings and he did not fail to apply established law. Therefore, the 

Authority denied the application for review.

Member Abbott dissented and argued that the Authority should consider the merits of the 

Petitioner’s petition because the interests, and rights, of bargaining unit employees must be 

vigorously protected under the Statute, which is premised on the notion that the right of 

employees to refrain from forming, joining, or assisting a union is afforded the same protection 

as an employees’ right to form, join, or assist a union.

CASE DIGEST: AFGE, Local 2338, 71 FLRA 644 (2020) 

The Union requested that the Authority reconsider its decision in AFGE, Local 2338, 71 

FLRA 371 (2019) (Local 2338). In Local 2338, the Authority found that the Union did not 

establish that the Arbitrator’s award failed to draw its essence from the parties’ agreements or 

was ambiguous and impossible to implement. The Authority found that the Union’s motion for 

reconsideration challenged a factual finding that the Authority did not make and did not 

otherwise establish extraordinary circumstances warranting reconsideration of Local 2338. 

Accordingly, the Authority denied the Union’s motion.

CASE DIGEST: SSA, Office of Hearings Operations & Ass’n of Admin. Law Judges, IFPTE, 71 

FLRA 646 (2020) (Member DuBester dissenting)

This case involves yet another dispute between the Agency and the Union involving the 

telework provision in the parties’ agreement. The Arbitrator found that the Agency violated the 

parties’ agreement when it denied the grievant’s telework request based on his failure to schedule 

a “reasonably attainable” number of cases for hearing per month. The Arbitrator ordered the 

Agency to allow the grievant to telework for two days per week for thirty months if he scheduled 

an average of forty to forty-five cases for hearing per month. After those thirty months, the 

Arbitrator ordered the Agency to make an individualized determination of how many hearings 

were “reasonably attainable” in evaluating the grievant’s telework requests, have a collegial 

conversation with the grievant before restricting telework in the future, and have a valid basis for 
its “reasonably attainable” determination. Consistent with SSA, 71 FLRA 495 (2019) (Member 

DuBester dissenting in part), and SSA, Office of Hearings Operations, 71 FLRA 589 (2020) 

(Member DuBester dissenting in part), the Authority found that the award is contrary to law, in 

part, because it excessively interferes with management’s rights to direct employees and assign 

work.

Member DuBester dissented, finding that the remedy was not contrary to law.

CASE DIGEST: SSA and Ass’n of Admin. Law Judges, IFPTE, 71 FLRA 652 (2020)

During bargaining over their successor collective-bargaining agreement, the parties were 

unable to reach agreement on several articles, and the Agency requested the assistance of the 

Federal Service Impasses Panel (the Panel). After the Panel asserted jurisdiction over the 

dispute, the Union filed a motion asking the Authority to stay the Panel’s assertion of 

jurisdiction. The Authority denied the Union’s request because the Union did not demonstrate 

that a stay was appropriate under the circumstances of this case.