Federal Labor Relations Authority

Quarterly Digest Report: July 1, 2019 – September 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: SSA, 71 FLRA 205 (2019) (Member Abbott concurring; Member DuBester 

dissenting)

This case concerned a grievance alleging that the Agency failed to pay a Schedule A, 

term employee, who was paid at the General Schedule (GS)-5 level pursuant to signed 

agreements, at the GS-8 level for her performance of higher-graded duties over several years. 

The Arbitrator sustained the grievance in a bench decision and ordered that the grievant should 

be given a GS-8 rating and be paid retroactively. The Authority found that the grievance was not 

arbitrable because it concerned classification and was, therefore, barred by 

5 U.S.C. § 7121(c)(5). Accordingly, the Authority vacated the Arbitrator’s award in its entirety. 

Member Abbott wrote separately to concur with the § 7121(c)(5) application and to note 

that the grievance was also not arbitrable because it sought to force a conversion of the grievant’s 

excepted-service status to that of the competitive service, which is beyond the power of an 

arbitrator. 

Member DuBester dissented, finding that the grievance did not concern a classification 

matter with the meaning of § 7121(c)(5) of the Statute. Rather, he found that the record 

demonstrated that the essential nature of the grievance concerned whether the grievant was 

entitled to a temporary promotion under the parties’ collective-bargaining agreement for 

performing the established duties of a higher-graded position. Thus, he would not have vacated 

the award.
CASE DIGEST: AFGE, Local 2076, 71 FLRA 221 (2019) (Member DuBester concurring in 

part and dissenting in part)

In this case, the Authority clarifies how Allen factor (5)—i.e., whether the Agency “knew 

or should have known” that its action would not be sustained—applies in the context of minor 

disciplinary actions. The underlying grievance involved a disciplinary charge and fourteen-day 

suspension. The Arbitrator upheld the disciplinary charge and mitigated the penalty to a five-day 

suspension. The Union then filed a request for attorney fees, which the arbitrator denied with a 

non-coherent explanation. On exceptions, the Union argued the denial of attorney fees was 

contrary to law.

The Authority held that in determining whether an award of fees is warranted in the 

interest of justice under Allen category (5), arbitrators must evaluate the nature and strength of 

the evidence that was available to the agency and assess whether its penalty determination was 

reasonable. Furthermore, because the record does not permit the Authority to determine the 

proper resolution of the matter, the Authority remanded the case for further proceedings to assure 

that the resolution of a request for attorney fees is consistent with law.

Member DuBester wrote separately, agreeing with the decision to remand the award for 

resubmission to the Arbitrator because he failed to make specific findings as to whether an award 

of attorney fees is appropriate and disagreeing with the majority’s decision to modify the 

standard governing whether attorney fees are warranted under Allen category (5). 

CASE DIGEST: AFGE, Local 1633, 71 FLRA 211 (2019) (Member Abbott concurring; 

Member DuBester concurring in part, and dissenting in part)

This case concerned grievants who successfully sought environmental differential pay for 

their duties. The Arbitrator awarded backpay, but denied the Union’s request for attorney’s fees 

because the parties’ agreement did not provide for attorney fees. The Authority issued a Federal 

Register notice soliciting briefs regarding whether and how the Authority should reevaluate its 

reliance on the Allen factors in attorney fee cases. Remanding the case to the Arbitrator to reevaluate the request for attorney fees, the Authority clarified the applicable legal standard for an 

award of attorney’s fees in an arbitration proceeding under the Back Pay Act (BPA) in nondisciplinary cases, focusing on the “knew or should have known” and “clearly without merit” 

factors. 

Member Abbott wrote separately in concurrence to note the central premise of the 

decision rested on the precarious definition by OPM of “unjustified or unwarranted personnel 

actions” and the Merit Systems Protection Board’s interpretation of 5 U.S.C. § 7701(g)(1). 

Congress would have to resolve other questions concerning attorney fees such as proportionality, 

the applicability of the Laffey matrix, and reasonableness of fees for in-house attorneys. 

Member DuBester dissented. He agreed with the decision to deny the Agency’s 

exceptions and to remand the award to the parties for resubmission to the Arbitrator to make 

specific findings as to whether an award of attorney fees is appropriate. But Member DuBester
strongly disagreed with the majority’s modification of the standards used to determine 

entitlement to attorney fees in arbitration awards in which the grieved action is not disciplinary

in nature because neither party raised the appropriateness of the Allen factors. Thus, Member 

DuBester found that reconsideration of the Allen factors was not ripe for review in this case. 

CASE DIGEST: U.S. Dep’t of the Air Force, Davis-Monthan Air Force Base, Ariz., 71 FLRA 

227 (2019) (Member DuBester concurring; Chairman Kiko dissenting)

This case concerned a grievant who had been denied multiple official time requests by 

the Agency. The grievances alleged that the Agency violated the parties’ memorandum of 

agreement (MOA) since the time requests established “special situations” and provided sufficient 

information to allow the Agency to determine the reasonableness of the time requests. The 

Arbitrator found that, although the MOA did not define a “special situation,” the grievant’s 

increase in representational activity established a special situation, that the Agency was aware of 

the increase in representational activity, that the former labor relations officer of the Agency said 

that the time requests should have been approved, and so she found that the Agency violated the 

parties’ collective-bargaining agreement (CBA) and MOA when it denied some of the official

time requests made by the grievant. 

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

In dissent, Chairman Kiko noted that the MOA did, in fact, define “special situations” as 

involving a “temporary change” to the agreed-upon schedule. The Chairman stated that the 

grievant’s constant requests for more official time, nearly every day, could not plausibly be 

classified as a “temporary change.” Accordingly, the Chairman would have found that the award 

failed to draw its essence from the CBA and the MOA.

CASE DIGEST: Dep’t of VA, Edith Nourse Rogers Memorial VA Med. Ctr., Bedford, Mass., 71 

FLRA 232 (Member DuBester concurring)

This case concerned an Agency directing a social worker who spent 100% of her work 

time in a medical center to instead work half-time in the center and half-time traveling to 

patients’ homes. The Arbitrator found the Agency violated Article 25 of the parties’ agreement, 

which required reassignments to be seniority-based, and ordered the grievant restored to the 

position she held prior to the improper reassignment. On exceptions, the Agency argued that the 

award was contrary to law because it violated the Agency’s management rights under § 7106(a) 

of the Federal Service Labor-Management Relations Statute. The Authority found an Agency

argument about the effect of the remedy was inconsistent with the argument it made before the 

Arbitrator and refused to consider it. The Authority further found that the Arbitrator’s awarded 

remedies did not excessively interfere with the Agency’s management rights.

Member DuBester concurred in the decision to deny the Agency’s exceptions.
CASE DIGEST: U.S. DOD, Domestic Elementary & Secondary Sch., 71 FLRA 236 (2019) 

(Member Abbott concurring; Member DuBester dissenting)

The parties’ collective-bargaining agreement requires the party invoking arbitration to do 

so “within twenty . . . days following the conclusion of the last stage in the grievance procedure.” 

The last stage was mediation, and the Union did not attempt to move the dispute to arbitration 

until almost two years after mediation concluded. Nevertheless, the Arbitrator found the 

grievance procedurally arbitrable because the Union attempted to invoke arbitration before 

mediation. However, the Arbitrator failed to cite any authority or contractual wording that 

allowed him to disregard the agreement’s explicit twenty-day invocation period. Thus, the 

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

essence from the parties’ agreement. 

Member Abbott concurred in the decision. He noted that all parties involved in the 

grievance-arbitration process would be well served to remind themselves that the Federal Service 

Labor-Management Relations Statute intends for grievances to be resolved expeditiously.

Member DuBester dissented. Applying the deferential standard owed to arbitrators when 

analyzing essence challenges, Member DuBester would have found that the Arbitrator properly 

interpreted the parties’ agreement when the Arbitrator found that the Agency had acquiesced to 

the Union’s actions to move the grievance to arbitration and had not shown that the Union’s 

invocation of arbitration was untimely. Thus, Member DuBester would have denied the essence 

exception and reached the Agency’s remaining exceptions.

CASE DIGEST: U.S. Dep’t of the Navy, Puget Sound Naval Shipyard & Intermediate Maint. 

Facility, Bremerton, Wash., 71 FLRA 240 (2019) (Member DuBester Concurring)

This case concerned a grievant who had been suspended by the Agency for ten days due 

to off-duty misconduct while on temporary duty overseas. The Agency reduced the suspension 

to seven days but denied the grievance. The Arbitrator found that, while there was a nexus 

between the off-duty misconduct and the efficiency of the service, the suspension was excessive 

when compared to other suspensions for the same charge and considering the grievant’s

otherwise exemplary work history. The Arbitrator directed the Agency to reduce the suspension 

to five days and provide two days backpay. Before the Authority, the Agency argued that the 

award was contrary to Executive Order (EO) 13839, the Back Pay Act (BPA), and the Agency’s 

right to discipline under §7106(a). The Authority found that EO 13839 did not retroactively 

apply to the collective-bargaining agreement (CBA). The Authority dismissed as unsupported 

the BPA exception. The Authority also found that the award was reasonably and proportionally 

related to the violation of the CBA and that the Agency failed to show how a two-day mitigation

excessively interfered with a § 7106(a) management right. Accordingly, the Authority 

concluded that the award was not contrary to law and denied the Agency’s exceptions. 

Member DuBester concurred in the decision to deny the Agency’s exceptions.
CASE DIGEST: U.S. DHS, U.S. CBP, 71 FLRA 243 (2019) (Member Abbott concurring)

This case concerned the Arbitrator’s finding that the Agency violated the parties’ 

collective-bargaining agreement when it required an employee to undergo medical examinations 

without a Union representative present. The Arbitrator directed the Agency to establish 

procedures to inform bargaining-unit employees and independent medical examiners of an 

employee’s right to have a Union representative present during such examinations. The 

Authority rejected the Agency’s contrary-to-law, public-policy, and nonfact exceptions, finding 

that the award did not require the Agency to exercise control over the medical examiners. The 

Authority found that, to the extent that the award applied to individuals other than the grievant, 

the Arbitrator exceeded his authority, and clarified the remedy accordingly. 

Member Abbott concurred with the Authority’s disposition of the exceptions and noted

that the Agency’s contrary-to-law and public-policy exceptions were inconsistent with 

concessions made by the Agency and that the Agency’s nonfact exception failed to dispute a 

central fact. Therefore, he noted that the Agency could have obviated the need for its exceptions 

if it negotiated with the Union by solely focusing on the exceeds-authority exception. 

CASE DIGEST: Exp.-Imp. Bank of the U.S., 71 FLRA 248 (2019) (Member DuBester 

dissenting)

This case concerned the Union’s petition requesting an FLRA Regional Director (RD) to 

clarify the bargaining-unit status of several Agency positions. The Union represents a bargaining 

unit of non-professional employees at the Agency. Before the RD, the parties stipulated that 

some of the positions at issue are not “professional” within the meaning of 5 U.S.C. 

§ 7103(a)(15)(A). However, the parties disputed whether seven positions are professional or 

non-professional. The RD concluded that the seven positions are non-professional, and she

directed the employees occupying those positions – and the other stipulated non-professional 

employees – to be included in the unit.

On an Agency-filed application for review, the Authority found that the RD failed to 

apply established law. In this regard, the record demonstrated that the employees occupying the 

seven positions possess the requisite judgment and knowledge to constitute professional 

employees under § 7103(a)(15)(A). Accordingly, the Authority directed the RD to exclude those 

positions from the unit. As for the stipulated non-professional employees, the Authority noted 

that they significantly outnumbered the employees already in the unit – calling into question the 

Union’s majority status. Applying the “majority standard” in this context, the Authority directed

the RD to conduct an election to determine whether the affected employees desire to be 

represented by the Union.

Member DuBester dissented. He determined that the RD properly relied on record 

evidence to conclude that employees in the positions at issue were not excluded from the 

bargaining unit as professional employees. Additionally, Member DuBester concluded that the 

inclusion of employees in the disputed and stipulated positions who had previously been 

improperly excluded from the unit does not call into question the Union’s majority support, and 
therefore does not warrant directing the RD to conduct an election. Accordingly, he would deny 

the Agency’s petition for review. 

CASE DIGEST: AFGE, Nat’l Council of EEOC Locals, No. 216, 71 FLRA 300 (2019) 

(Member DuBester Concurring in part and dissenting in part)

This case concerns the Agency’s declaration that three Union proposals concerning the 

Agency’s disciplinary table of penalties are nonnegotiable. After the Agency’s declaration of 

nonnegotiability on August 3, 2018, the Union attempted to “withdraw” and amend the three 

proposals on August 27, 2018. When the Union asked for a declaration of nonnegotiability on 

the new proposals, the Agency declared it had already declared the proposals nonnegotiable on 

August 3. The Union filed a petition for review of the amended proposals on September 6, 2018. 

The Authority found that the Union’s amended proposals were not substantive modifications and 

that the petition for review filed on September 6 was untimely and dismissed the petition.

Member DuBester dissented with respect to the majority’s conclusion regarding 

Proposal 7. He found that amended Proposal 7 significantly changed the original proposal 

because it created a new and independent standard by which to measure the appropriateness of a 

disciplinary penalty and also included substantial revisions to clarify the proposal. Thus, 

Member DuBester would find the petition timely as to Proposal 7.

CASE DIGEST: U.S. Dep’t of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 71 

FLRA 304 (2019) (Member DuBester concurring)

This case concerned the Agency’s suspension of the grievant for fourteen days. The 

grievance alleged that the suspension was not for just cause and, thus, violated the parties’

agreement. The Arbitrator found that the Agency lacked just cause for the suspension, and he 

reduced it to a one-year letter of reprimand. In an exception, the Agency argued that the justcause finding failed to draw its essence from the parties’ agreement because the Arbitrator 

considered extraneous factors in deciding to reduce the penalty. The Authority found that the 

Arbitrator’s considerations were properly rooted in the wording of the parties’ agreement.

Therefore, the Authority concluded that the award did not fail to draw its essence from the 

agreement, and denied the Agency’s exception.

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

CASE DIGEST: Dep’t of the Treasury, IRS, Office of the Chief Counsel, 71 FLRA 281 (2019) 

(Chairman Kiko dissenting)

An FLRA Administrative Law Judge (the Judge) found that the Agency violated 

§ 7116(a)(1), (5), and (8) of the Federal Service Labor Management Relations Statute (the 

Statute) by failing to respond to the information request under § 7114(b)(4) within a reasonable 

amount of time, here, seven weeks. In its exceptions, the Agency argued that the complaint did 
not allege that it untimely responded to the information request, only that it had not 

“acknowledged” the request. The Authority found that the Agency was afforded adequate 

notice by the General Counsel’s complaint, that the Judge did not err, and that the surrounding 

circumstances demonstrated that the Agency violated the Statute by failing to respond to the 

information request within a reasonable time. Accordingly, the Authority denied the Agency’s 

exceptions.

Chairman Kiko dissented. She disagreed with the majority’s decision and would have set 

aside the Judge’s recommended decision because the Agency timely furnished the requested 

information under the circumstances. 

CASE DIGEST: NTEU and U.S. Dep’t of the Treasury, Internal Revenue Service., 71 FLRA 

307 (2019) (Member DuBester concurring)

This case concerned the negotiability of a proposal that would allow employees on 

flexible schedules to earn credit hours, on federal holidays, during the same hours as the 

employee’s normal tour of duty. The issue before the Authority was whether the proposal was 

non-negotiable as it conflicted with the Federal Employees Flexible and Compressed Work 

Schedules Act (the Act) and Office of Personnel Management (OPM) guidance on the topic. 

The Authority found that the proposal conflicted with the Act’s definition of credit hours, as 

informed by persuasive OPM guidance, and was therefore non-negotiable.

Member DuBester concurred in the Order dismissing the Union’s petition.

CASE DIGEST: U.S. Dep’t of VA, Member Servs. Health Res. Ctr., 71 FLRA 311 (2019)

In this case, the Arbitrator determined that the Agency violated a provision in the parties’ 

collective-bargaining agreement that requires breaks for employees who use a particular 

computer-like screen for over one hour. The Arbitrator rejected the Agency’s more restrictive 

interpretation that employees must have continuously stared at the screen for over one hour in 

order to qualify for a break because the clear and unambiguous contract language did not include 

such a requirement. On exceptions, the Agency argued that the Arbitrator’s interpretation was 

implausible. The Authority denied the Agency’s essence argument because the Arbitrator’s 

interpretation was consistent with the plain language of the agreement.

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

CASE DIGEST: U.S. Dep’t of VA, Veterans Benefits Admin., 71 FLRA 315 (2019) (Member 

DuBester concurring)

This case concerned an agency’s late response to a show-cause order (SCO). The 

Authority’s Office of Case Intake and Publication issued an SCO after the Agency filed 

incomplete exceptions prior to midnight on the thirtieth day after an arbitrator served the award, 
and then continued to file portions of the exceptions after midnight and continuing for another 

two weeks. The Authority found that the response to the SCO was late; therefore, the entire 

exceptions were dismissed without a merits-based review. 

Member DuBester concurred in the decision to dismiss the Agency’s exceptions for the 

sole reason that they were untimely filed.

CASE DIGEST: NFFE, Local 1998, IAMAW, 71 FLRA 317 (2019) (Member DuBester 

concurring)

This case involved the negotiability of three proposals related to selecting employees for 

temporary-duty assignments and granting them compensatory time off for travel between 

Agency offices for those assignments. The Agency argued that the two proposals related to 

compensatory time off were outside the duty to bargain because they are specifically provided 

for by federal law and regulation, and that the proposal concerning temporary-duty assignments 

was covered by an existing agreement. The Authority found that the first two proposals were not 

negotiable because the Union failed to contest the Agency’s specifically-provided-for argument. 

However, as the only issue that the Agency raised with regard to the other proposal was a 

bargaining-obligation dispute, that dispute was not properly before the Authority. Accordingly, 

the Authority dismissed the Union’s petition as to all three proposals.

Based on the record before the Authority, Member DuBester concurred in the decision to 

dismiss the Union’s petition.

CASE DIGEST: U.S. Dep’t of State, Passport Servs., 71 FLRA 327 (2019) (Member DuBester 

concurring; Chairman Kiko dissenting)

This case concerned a disagreement over whether the Union filed the grievance at the 

wrong step and, if so, whether that procedural error rendered the grievance not arbitrable. The 

Agency argued that the Arbitrator’s award that found the grievance arbitrable failed to draw its 

essence from the parties’ agreement because the Arbitrator ignored his own finding that the 

Union had filed the grievance at the wrong step. The Authority found that the award was not 

irrational, unfounded, implausible, or in manifest disregard of the agreement, and therefore 

denied the exception.

Based on the circumstances of the case, Member DuBester concurred in the decision to 

deny the Agency’s exception.

Because the Arbitrator agreed with the Agency’s interpretation of the parties’ negotiated 

grievance procedure, Chairman Kiko would have found that the Arbitrator’s reliance on 

equitable considerations to find the grievance arbitrable failed to draw its essence from the 

parties’ agreement. Accordingly, she dissented.
CASE DIGEST: Dep’t of VA, Nashville Reg’l Office, 71 FLRA 322 (2019) (Member Abbott 

concurring; Member DuBester dissenting)

This case concerned a grievance alleging that the Agency violated the Privacy Act by 

releasing unredacted performance appraisals of Union representatives, without their consent, to 

an Agency attorney in connection with the litigation of a grievance (the performance-standards 

grievance). The Arbitrator held that the Agency violated the parties’ agreement and the Privacy 

Act because the release of the performance appraisals was unauthorized. The Authority found 

that § 552a(b)(1) of the Privacy Act permitted the release of the appraisals to the Agency’s 

attorney because the attorney needed the unredacted performance appraisals to prepare the 

Agency’s defenses in the performance-standards grievance. Accordingly, the Authority held that 

the Agency did not violate the Privacy Act and vacated the Arbitrator’s award in its entirety.

Member Abbott wrote separately, in concurrence, to note in the circumstances of this 

case there was no release of information that would trigger the Privacy Act. Further, disputes 

arising under the Privacy Act do not fall within the meaning of a “grievance” under Section 

7103(a)(9)(C)(ii) of the Statute because Privacy Act violations do not affect conditions of 

employment. Consequently, he would have found that the Arbitrator and the Authority had no 

jurisdiction over the grievance and that the grievants’ only recourse was to utilize the Privacy 

Act’s exclusive remedial scheme. 

Member DuBester dissented. Applying the standard of review applicable to contrary-tolaw exceptions, he would defer to the Arbitrator’s factual findings supporting his conclusion that 

the Agency’s attorney did not need the Union’s unredacted performance appraisals to prepare the 

Agency’s defense in the performance-standards grievance. Accordingly, he would deny the 

Agency’s exception that the award was contrary to the Privacy Act, and would consider the 

Agency’s remaining exceptions.

CASE DIGEST: U.S. Dep’t of HHS, Office of Civil Rights, 71 FLRA 330 (2019) (Chairman 

Kiko concurring)

This case concerned the timeliness of the Agency’s exceptions, which the Agency filed 

one day after the due date. The issue before the Authority was whether circumstances warranted 

equitably tolling the filing deadline. The Authority found that the Agency failed to demonstrate 

that extraordinary circumstances prevented it from timely filing its exceptions. Accordingly, the 

Authority dismissed the exceptions as untimely.

CASE DIGEST: SSA and IFPTE, Ass’n of Admin. Law Judges, 71 FLRA 333 (2019)

This case concerned whether the Privacy Act prohibited the Agency from disclosing 

redacted records related to misconduct allegations against the grievants. The grievance alleged 

that the Agency violated the parties’ agreement by refusing to provide the requested information. 

The Arbitrator found that the request for the records was an informal information request under §

7114(b)(4) of the Federal Service Labor-Management Relations Statute; therefore, the Agency 

was required to disclose the requested information unless the Privacy Act otherwise prohibited 
disclosure. The Arbitrator concluded that the Privacy Act did not prohibit disclosure, and that 

the Agency violated the parties’ agreement by refusing to disclose the requested information.

On exceptions, the Agency raised nonfact and contrary to law arguments. The Authority 

denied the nonfact exception because it did not demonstrate that a central fact underlying the

award was clearly erroneous. As to the contrary to law exception, the Authority found that the 

Privacy Act is subject to the Freedom of Information Act (FOIA) and that the redaction of 

documents to permit disclosure of nonexempt portions is appropriate under FIOA Exemption 6. 

The Authority further found that the Agency was required to disclose the information under 

FOIA Exemption 6 because the redacted disclosures would not be an unwarranted invasion of 

personal privacy. Accordingly, the Authority denied the contrary to law exception.

Member Abbott concurred in the decision to deny the Agency’s exceptions because the 

Agency violated its agreement; therefore, he would not have reached any Privacy Act analysis.

Chairman Kiko dissented, finding that the Agency was not obligated to furnish any 

information under § 7114(b)(4) because the Agency never received a request from the Union or a 

Union representative. She would have set aside the award as inconsistent with § 7114(b)(4).

CASE DIGEST: U.S. Dep’t of the Air Force, Pope Air Force Base, N.C. & AFGE, 

Local 1770, 71 FLRA 338 (2019)

This case originated in a grievance over the Agency’s implementation of Alternative 

Work Schedules. Over the course of several years, the Arbitrator issued three awards, one 

sustaining the grievance, one finding the appropriate calculation of damages, and one granting 

attorney fees and costs. With respect to the fee award, the Arbitrator denied the Agency’s 

request for an evidentiary hearing and awarded the Union all requested fees and costs. In its 

exceptions to the fee award, the Agency also raised exceptions to the earlier awards. 

After dismissing the Agency’s exceptions to the merits and damages awards as untimely, 

the Authority denied all of the Agency’s exceptions to the fee award. First, the Authority denied 

as unsupported the Agency’s argument that the fee award was contrary to law because the 

Arbitrator erred in determining the reasonableness of the fees. Next, the Authority found that the 

Agency’s argument that it was denied a fair hearing constituted mere disagreement with the 

Arbitrator’s evaluation of the evidence, and also denied the Agency’s argument that the fee 

award was incomplete or ambiguous because the award was not impossible to implement. The 

Authority then rejected the Agency’s argument that the Arbitrator exhibited bias, finding the 

mere fact that the Arbitrator found in favor of the Union did not demonstrate bias. Finally, the 

Authority rejected the Agency’s argument that the fee award was contrary to public policy 

because the Agency failed to clearly demonstrate how the award violated an explicit and welldefined policy consideration. 

Member DuBester concurred in the decision to deny the Agency’s exceptions.
CASE DIGEST: AFGE, Local 2338, 71 FLRA 343 (2019)

This case concerns a grievance claiming that the Agency violated the parties’ agreement 

by failing to distribute overtime in a fair and equitable manner. The Arbitrator determined that 

the Agency violated the parties’ agreement by not establishing or maintaining voluntary or 

involuntary overtime rosters for years, but he did not award backpay because he found that the 

Union did not present evidence showing which employees were available to work overtime and 

would have accepted the overtime work if it had been made available to them. The Authority 

found that the award was consistent with the Back-Pay Act (BPA) and Authority precedent 

because the Union failed to provide specific evidence showing which employees would have 

performed the overtime assignments at issue had the assignments been offered. The Authority 

also denied the Union’s essence exception because the BPA is the only authority for a backpay 

award in this case, and the Union failed to cite to any contract provision supporting its claim that 

it is otherwise entitled to a backpay award. 

CASE DIGEST: AFGE, Local 2145 & U.S. Dep’t of VA, Med. Ctr., Richmond, Va., 

71 FLRA 346 (2019)

This case concerned grievants who successfully sought compensation for time and 

expenses they incurred while traveling during non-duty hours for mandatory training. The 

Arbitrator found that the Agency violated the parties’ agreement by not reimbursing the 

grievants for travel expenses and not granting them compensatory time. The Authority found 

that the Arbitrator properly denied the Union’s request for interest on travel expenses. However, 

the Authority found that the Arbitrator prematurely denied the Union’s request for attorney fees

before the Union had had the opportunity to file its petition. Accordingly, the Authority denied 

the Union’s exceptions in part and granted its exception to the Arbitrator’s denial of attorney 

fees. The Authority set aside the portion of the award that denied attorney fees and remanded the 

attorney fee issue to the parties for resubmission to the Arbitrator.

Member DuBester concurred in the decision to deny the Union’s exceptions in part and to 

remand the attorney fee issue. However, he reiterated his disagreement with the modification of 

the standards that the majority directed the Arbitrator to apply in determining entitlement to 

attorney fees.

CASE DIGEST: SSA & AFGE Local 1122, 71 FLRA 352 (2019) Member DuBester 

Concurring

In this case, the Arbitrator found the grievance was arbitrable nearly four years after 

arbitration was invoked, despite a provision in the parties’ agreement that grievances must be 

heard within two-and-a-half years. He found that Article 25 of the parties’ agreement created a 

mutual obligation to schedule and hold a hearing and the Agency failed to fulfil its share of that 

obligation. The Agency argued that the Arbitrator’s finding failed to draw its essence from the 

parties’ agreement. The Authority found that as the Agency merely disagreed with the 
Arbitrator’s conclusions regarding Article 25, the Agency did not demonstrate that the award 

fails to draw its essence from the parties’ agreement. Accordingly, the Authority denied the 

Agency’s exception.

Member DuBester concurred, finding that the Arbitrator’s conclusion falls within the 

deferential standard governing essence challenges to awards.

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

P.R., 71 FLRA 359 (2019) (Member DuBester concurring)

This case concerned the Agency’s motion for reconsideration (motion) of the Authority’s 

decision in DOD, Domestic Dependent Elementary & Secondary Schools, Fort Buchanan, 

Puerto Rico, 71 FLRA 127 (2019) (Fort Buchanan) (Member DuBester dissenting). In Fort 

Buchanan, the Authority found that the Agency violated § 7116(a)(1), (5), and (6) of the Federal 

Service Labor-Management Relations Statute when it refused to implement a 

collective-bargaining agreement that the Federal Service Impasses Panel imposed on the parties. 

However, the Authority found that the Agency was not obligated to implement unlawful 

provisions of the imposed agreement. In addition, consistent with the parties’ requests, the 

Authority remanded certain matters to the parties for further bargaining. Because the Agency’s 

motion asked the Authority to answer legal questions that were inconsequential to the outcome in 

Fort Buchanan, the Authority denied the motion.

Member DuBester concurred with the Authority’s denial of the motion for 

reconsideration.

CASE DIGEST: SSA & AFGE, Local 3627, 71 FLRA 355 (2019) (Member DuBester 

concurring).

This case arises from the Agency’s denial of the grievant’s request to telework remotely. 

The Arbitrator found the Agency had not violated the parties’ agreement in any aspect, yet the 

award provided for a remedy of moving expenses to the grievant. The Agency filed exceptions 

arguing the award failed to draw its essence from the parties’ agreement. The Authority found 

that the award failed to draw its essence from the parties’ agreement because issuing a remedy 

despite finding no violation in a grievance alleging only a contractual violation cannot be 

rationally derived from the parties’ agreement.

Member DuBester concurred. He found that, under the circumstances of this case, the 

award fails to draw its essence from the parties’ agreement.