Federal Labor Relations Authority

Quarterly Digest Report: July 1, 2021 – September 30, 2021

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: DOD, Domestic Dependent Elementary & Secondary Schs., 

Fort Buchanan, P.R., 72 FLRA 414 (2021) (Chairman DuBester 

concurring; Member Abbott dissenting)

This case concerned a remand from the U.S. Court of Appeals for the District of 

Columbia Circuit (the court). The Union had petitioned the court to review the Authority’s 

original decision in DOD, Domestic Dependent Elementary & Secondary Schools, 

Fort Buchanan, P.R., 71 FLRA 127 (2019) (Member DuBester dissenting). The court denied the 

Union’s appeal in all but one respect. Specifically, the court found that the Authority had 

incorrectly held that a contract provision concerning the workday of bargaining-unit employees 

was nonnegotiable. The court remanded the case to the Authority. On remand, the Authority 

vacated its previous negotiability determination but concluded that it need not render another 

determination at this time. The Authority noted that the Union could avail itself of the 

negotiability-appeals process if the Union desired a further negotiability determination.

Chairman DuBester concurred in the decision to vacate the previous negotiability 

determination and not render another negotiability determination.

Member Abbott dissented from the majority’s decision to vacate the Authority’s earlier 

decision and send this back to the parties.
CASE DIGEST: U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., Poplar Bluff, Mo., 

72 FLRA 419 (2021)

The Union requested that the Authority reconsider its decision in U.S. Department of VA, 

John J. Pershing VA Medical Center, Poplar Bluff, Missouri (VA), 72 FLRA 200 (2021) 

(Member Abbott concurring). In VA, the Authority held that because the grievance concerned 

the termination of a probationary employee, the Arbitrator did not have jurisdiction to resolve the 

grievance. In its motion for reconsideration (motion), the Union argued that the Authority erred 

in reaching its decision. Because the motion relied on arguments raised for the first time on 

reconsideration that could have been raised in VA, arguments rejected in VA, and findings that 

the Authority did not make, the Authority found that the motion did not establish extraordinary 

circumstances warranting reconsideration. 

CASE DIGEST: AFGE, Loc. 918, 72 FLRA 421 (2021)

This case concerned the negotiability of one proposal that reinstated the terms of the 

parties’ expired collective-bargaining agreement (CBA) – both permissive and mandatory 

subjects – until a new CBA goes into effect. The Agency argued that the proposal was nonnegotiable because it is a permissive subject of bargaining that is negotiable only at the election 

of the Agency. The Authority reaffirmed that, once an agreement expires, agencies have a 

unilateral right under the Federal Service Labor-Management Relations Statute (the Statute) to 

terminate permissive subjects of bargaining negotiable only at the agency’s election under 

section 7106(b)(1) of the Statute. Additionally, the Authority held that a party cannot be forced 

to waive its statutory rights and a proposal requiring such a waiver constitutes a permissive 

subject of bargaining. Therefore, because the Union conceded that the proposal concerns a 

permissive subject of bargaining and the Agency elected not to bargain, the Authority found the 

proposal to be outside the duty to bargain. 

CASE DIGEST: NTEU, 72 FLRA 423 (2021) (Member Abbott concurring; 

Chairman DuBester dissenting)

The Union filed an unfair-labor-practice (ULP) charge alleging that the Agency 

bargained in bad faith by disapproving the ground rules for a new term agreement. While the 

parties negotiated that term agreement, the Union filed four grievances, each alleging that the 

Agency committed a ULP by bargaining in bad faith. Four arbitration awards were issued, and 

exceptions were filed as to each of the awards.

The Authority consolidated the four cases given the similarities in facts and arguments. 

Because the Union’s earlier-filed ULP charge and the grievances all arose while the parties were 

bargaining the same term agreement, and the ULP and the grievances advance substantially 

similar legal theories, the Authority found that § 7116(d) of the Federal Service LaborManagement Relations Statute (the Statute) barred the Union’s grievances. 

Member Abbott concurred, agreeing with the outcome of this matter, but had difficulty 

reconciling this matter with the majority’s holding in NLRB.
Chairman DuBester dissented. In his view, the four grievances vacated by the majority’s 

decision neither arose from the same set of factual circumstances, nor advanced substantially 

similar legal theories, as the Union’s earlier-filed ULP charge. As such, the majority’s 

application of § 7116(d) of the Statute to bar the grievances finds no support in either the plain 

language or the legislative purpose of this provision.

CASE DIGEST: U.S. Dep’t of the Army, White Sands Missile Range, 72 FLRA 435 (2021) 

(Chairman DuBester concurring)

The Authority determined that the Agency’s exceptions were either untimely, 

interlocutory, or barred by the Authority’s Regulations. 

Chairman DuBester concurred. In his view, the Agency’s interlocutory exceptions did 

not warrant review because none raised a plausible jurisdictional defect, the resolution of which 

would have advanced the ultimate disposition of the case.

CASE DIGEST: U.S. Dep’t of VA, VA Puget Sound Health Care Sys., Seattle, Wash., 

72 FLRA 441 (2021) (Chairman DuBester concurring)

In this case, the Arbitrator granted environmental-differential pay (EDP) to housekeepers 

at the Agency’s medical facility based on exposure to high-hazard microorganisms, but denied 

EDP for pipefitters. The Agency argued that the award was based on nonfacts, contrary to law, 

and incomplete, ambiguous, or contradictory. The Authority found that the Agency failed to 

establish that the award was deficient on any of these bases, and denied, in part, and dismissed, 

in part, the Agency’s exceptions.

Chairman DuBester concurred, agreeing with the decision to deny, in part, and dismiss, 

in part, the Agency’s exceptions.

CASE DIGEST: U.S. Agency for Glob. Media, 72 FLRA 447 (2021) (Chairman DuBester 

dissenting)

In this case, the Authority reaffirmed that when an agency is determining whether to 

grant a debt waiver under 5 U.S.C. § 5584, it has sole and exclusive discretion to determine 

whether there is fraud, misrepresentation, fault, or lack of good faith on the part of the employee 

requesting the waiver. Accordingly, after the Agency exercised its sole and exclusive discretion 

to find that employees were at fault for not informing the Agency of substantial overpayments, 

the Authority held that a dispute about the denial of debt-waiver requests was not grievable and 

that the Arbitrator did not have jurisdiction under § 5584 to grant a debt waiver. 

Chairman DuBester dissented, noting his continued disagreement with the majority’s 

conclusion that 5 U.S.C. § 5584 grants agencies the sole and exclusive discretion to determine 

whether an employee was at fault for purposes of granting or denying a debt-waiver request.
CASE DIGEST: U.S. Dep’t of HUD, 72 FLRA 450 (2021) (Chairman DuBester dissenting)

An unambiguous contract provision does not become ambiguous simply because an 

Arbitrator finds that it is. Although the parties’ agreement required a party to provide written 

notice in order to invoke arbitration, the Arbitrator relied on past practice and found that the 

Union properly invoked arbitration even though it bypassed the step requiring that it give notice 

to the Agency and instead submitted a form to the Federal Mediation and Conciliation Service. 

The Authority found that the Arbitrator ignored the plain wording of the provision when he 

found that the provision was ambiguous. Therefore, the Arbitrator could not rely on past 

practice to conclude that the Union properly invoked arbitration. Accordingly, the Authority 

granted the Agency’s essence exception and set aside the award. 

Chairman DuBester dissented, finding that the Arbitrator’s determination that the 

provision at issue was ambiguous was supported by the record and unchallenged factual findings. 

Therefore, Chairman DuBester would have denied the Agency’s essence exception.

CASE DIGEST: U.S. Dep’t of VA, Consol. Mail Outpatient Pharmacy, Leavenworth, Kan., 

72 FLRA 455 (2021) (Chairman DuBester concurring)

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

training provisions of the parties’ agreement. As a remedy, the Arbitrator awarded backpay to 

each of the grievants. The Agency filed exceptions to only the backpay portion of the award on 

contrary-to-law, essence, and nonfact grounds. Because the Arbitrator did not find, and the 

record did not establish, that the grievants would have earned the awarded backpay if the Agency 

had met its contractual training obligations, the Authority found that remedy contrary to the 

Back Pay Act, and set aside that portion of the award.

Chairman DuBester concurred, finding that under the circumstances of this case, the 

award failed to satisfy the requirements of the Back Pay Act. 

CASE DIGEST: U.S. DHS, U.S. CBP, 72 FLRA 463 (2021)

Because the Arbitrator failed to follow Authority precedent when applying the “interest 

of justice” factors required by 5 U.S.C. § 7701(g)(1), but found that attorney fees were 

warranted, the Authority granted the Agency’s contrary-to-law exception and set aside the fee 

award in its entirety. 

Chairman DuBester concurred in the decision to set aside the fee award, but noted his 

continued disagreement with the precedent on which the majority relied to reach that decision.

Member Abbott agreed that the Agency’s contrary-to-law exception was properly 

granted. However, he wrote separately to emphasize that arbitrators who intend to hear and rule 

on disputes submitted between Federal unions and agencies need to be thoroughly familiar with 

Title V.
CASE DIGEST: NTEU; 72 FLRA 469 (2021) (Member Abbott concurring)

This negotiability appeal involved proposals related to the Agency’s implementation of a 

peer coaching initiative. The Authority found that the Union filed a grievance alleging unfair 

labor practices under the parties’ negotiated grievance procedure that concerns issues directly 

related the Union’s petition for review. Accordingly, the Authority dismissed the petition 

without prejudice.

Member Abbott concurred, arguing that the Authority’s regulations abdicate one of the 

Authority’s central statutory duties to resolve issues relating to the duty to bargain in good faith.

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

Palms, 72 FLRA 473 (2021) (Chairman DuBester dissenting)

Where the parties’ agreement required the Arbitrator to issue a written decision on 

arbitrability before proceeding to a merits hearing, the Authority found that an email finding the 

grievance arbitrable was an “award” for purposes of § 7122(a) of the Federal Service Labor-

-Management Relations Statute. However, the Authority remanded the award to the parties 

because the Arbitrator’s conclusion was so unsupported by the record that the Authority could 

not determine if the award was deficient on the grounds raised by the Agency’s exceptions.

Chairman DuBester dissented from the decision to grant interlocutory review, noting his 

continued disagreement with the majority’s expanded interlocutory-review standard.

CASE DIGEST: U.S. DOJ, Fed. BOP, Fed. Corr. Ctr., Petersburg, Va., 72 FLRA 477 

(2021) (Chairman DuBester concurring; Member Abbott concurring)

In this case, the Authority affirmed that a violation of a governing agency regulation 

constitutes an unwarranted or unjustified personnel action under the Back Pay Act. 

Chairman DuBester concurred, noting that while he continues to disagree with the test 

applied by the majority to determine whether arbitration awards are contrary to a management 

right, he agreed that this test did not need to be applied to resolve the Agency’s managementrights exception.

Member Abbott concurred, arguing that the Arbitrator did not properly apply the 

requirements of the Rehabilitation Act. However, because the Agency did not challenge those 

findings, he was constrained to find that the Agency failed to establish that the award was 

contrary to law

CASE DIGEST: U.S. Dep’t of VA, Med. Ctr., Kan. City, Mo., 72 FLRA 483 (2021) 

(Chairman DuBester dissenting)

The Authority found that the Union’s motion for reconsideration attempted to relitigate 

U.S. Department of Veterans Affairs, Medical Center, Kansas City, Missouri, 72 FLRA 243 
(2021) (VA) (Chairman DuBester dissenting), misconstrued the Authority’s findings in that case, 

and failed to address all the grounds for the Authority’s decision. Because the Union failed to 

establish extraordinary circumstances warranting reconsideration, the Authority denied the 

motion. 

Chairman DuBester dissented, noting his continued disagreement with the majority’s 

decision in VA.

CASE DIGEST: U.S. Dep’t of the Treasury, 72 FLRA 486 (2021) (Chairman DuBester 

dissenting) 

The Union requested that the Authority reconsider its decision in U.S. Department of the 

Treasury, IRS, 72 FLRA 308 (2021) (IRS) (Member Abbott concurring; Chairman DuBester 

dissenting). Because the Union’s motion did not establish extraordinary circumstances 

warranting reconsideration, the Authority denied it. 

Chairman DuBester dissented, reiterating his view that the majority erred in IRS by 

finding that the Arbitrator lacked jurisdiction over the Union’s grievance.

CASE DIGEST: U.S. DOL, Off. of Workers’ Comp., 72 FLRA 489 (2021) (Member Abbott 

concurring)

In an initial fee award, the Arbitrator awarded the Union costs and seventy-five percent 

of the requested attorney fees after it prevailed on a grievance concerning a disciplinary action. 

Subsequently, the Arbitrator issued a supplemental award granting the Union additional fees for 

time spent preparing a response to the Agency’s opposition to its fee petition. The Authority 

denied the Agency’s exceptions to the initial fee award, and found that the Arbitrator had the 

authority to issue the supplemental award. However, because the Arbitrator failed to determine 

the reasonableness of the number of hours the Union extended in preparing the response, the 

Authority found that the supplemental award was contrary to law in part, set it aside, and 

remanded the matter to the parties for resubmission to the Arbitrator.

Member Abbott concurred, writing separately to express his concerns with arbitrable 

review of the penalty determinations made by Agency deciding officials in disciplinary cases.