Grievances and Arbitration Under the Federal Service Labor-Management Relations Statute (FSLMRS) | Practical Law

Grievances and Arbitration Under the Federal Service Labor-Management Relations Statute (FSLMRS) | Practical Law

A Practice Note discussing the grievance and arbitration process for federal agencies, unions, and employees under the Federal Service Labor-Management Relations Statute (FSLMRS). This Note describes the statutory and regulatory requirements relating to the negotiated grievance procedure (NGP) and the arbitration process. It also discusses general guidance for the parties during the arbitration hearing.

Grievances and Arbitration Under the Federal Service Labor-Management Relations Statute (FSLMRS)

by Practical Law Labor & Employment
Maintained • USA (National/Federal)
A Practice Note discussing the grievance and arbitration process for federal agencies, unions, and employees under the Federal Service Labor-Management Relations Statute (FSLMRS). This Note describes the statutory and regulatory requirements relating to the negotiated grievance procedure (NGP) and the arbitration process. It also discusses general guidance for the parties during the arbitration hearing.
A primary responsibility of the Federal Labor Relations Authority (FLRA) under the Federal Service Labor-Management Relations Statute (FSLMRS) is to resolve exceptions to arbitration awards that arise out of grievances filed by federal employees, unions, or agencies. The FLRA receives about 80 to 100 exceptions to arbitration awards each year. This Note covers federal law and applies only to federal unions, agencies, and employees.
Federal unions, agencies, and employees can file grievances under the negotiated grievance procedure (NGP) up to arbitration. Although employees may personally file grievances, only agency or union representatives may invoke arbitration under the FSLMRS. The NGP must be fair and simple for expeditious processing.
This Note discusses:
  • The statutory requirements concerning the NGP.
  • Coverage of the NGP.
  • Other types of grievances filed under the NGP.
  • General guidance for the parties during the arbitration hearing.
For more information about the FLRA's processes, see:
For more information on civil service protections for federal employees, see:

The Negotiated Grievance Procedure (NGP)

All federal sector collective bargaining agreements (CBAs) must provide procedures for:
  • Settling grievances, including questions of arbitrability (whether an arbitrator has the authority to resolve the grievance).
  • Binding arbitration of grievances not satisfactorily settled through the NGP.
(5 U.S.C. § 7121(a)(1).)
The NGP is the exclusive administrative procedure for resolving grievances that fall within its coverage, except when an aggrieved employee:
The NGP must:
  • Be fair and simple.
  • Provide for expeditious processing.
  • Include procedures that:
    • assure the exclusive representative the right (in its own behalf or on behalf of a bargaining unit member) to present and process grievances;
    • assure any unit employee the right to process a grievance on their own behalf, while also assuring the exclusive representative the right to be present during the grievance proceedings; and
    • provide that any grievance not satisfactorily settled under the NGP will be subject to binding arbitration invoked by the agency or the exclusive representative.
(5 U.S.C. § 7121(b); AFGE Local 1741 and DOJ, Bureau of Prisons, FCI Milan, 61 F.L.R.A. 118, 121 (2005) (noting that subject to limitations of the FSLMRS requiring expeditious processing of grievance and submission of disputes to arbitration, the parties are free to shape the procedures they choose in their contract).)
While an employee may personally file a grievance under the NGP, the aggrieved employee may not be represented in the NGP by:
  • An attorney.
  • Another representative not designated by the union.
(5 U.S.C. § 7121(b)(1)(C)(ii-iii).)

Coverage Under the NGP

5 U.S.C. §§ 7121 and 7103(a)(9) establish the coverage and scope of an NGP. A grievance is broadly defined as any complaint by:
  • An employee concerning any matter related to the employee's conditions of employment (COE).
  • Any labor organization concerning any matter relating to any employee's COE.
  • Any employee, labor organization, or agency concerning:
    • the effect or interpretation, or claimed breach of a CBA; or
    • any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting COE.
(5 U.S.C. § 7103(a)(9); EEOC v. FLRA, 744 F.2d 842, 846 n.8 (D.C. Cir. 1984).)
In the federal sector, the NGP covers matters unless the parties negotiate to exclude them, in contrast with private-sector grievance procedures, where parties must negotiate to include matters in the NGP (5 U.S.C. § 7121(a)(2)). Parties may define the NGP through bargaining:
  • The scope of the grievance and arbitration procedures.
  • Exclusions, other than those required by the FSLMRS.
(U.S. Dep't of the Navy, Long Beach Naval Shipyard, Long Beach, Cal., 48 F.L.R.A. 612, 619 (1993).)
The law prohibits federal sector NGPs from covering:
  • Any claimed violation of 5 U.S.C. Chapter 73, subchapter III (relating to prohibited political activities).
  • Retirement.
  • Life insurance.
  • Health insurance.
  • Suspensions and removals in the interests of national security.
  • Any examination, certification, or appointment.
  • The classification of any position that does not result in an employee's reduction in grade or pay.
(5 U.S.C. § 7121(c).)
A collectively bargained agreement that excludes only the statutory exclusions from the NGP is commonly referred to as a "broad scope" agreement, while a "limited scope" agreement may exclude from the NGP other subjects, including:
  • Reductions in force (RIFs).
  • Uncoerced resignations.
  • Position classifications.
  • Interpretations of agency regulations.
(AFGE Local 225 & Army Armament Research & Dev. Command, 9 F.L.R.A. 758 (1982).)

Management Grievances

Agencies may also file grievances (5 U.S.C. § 7103(a)(9)). Agencies typically file grievances when the union fails to comply with the provisions negotiated under the CBA. Any bargaining proposal barring an agency from access to the NGP, and arbitration procedures is inconsistent with the FSLMRS (Laborers' Int'l Union Local 1267 & DLA, Def. Depot Tracy, 14 F.L.R.A. 686, 696 (1984) (Proposals 8 and 9)).

Safety and Health Matters

Job related safety and health problems are covered by the NGP unless excluded by law (Nat'l Union of Hosp. & Health Care Employees, Dist. 1199 and VAMC, Dayton, 28 F.L.R.A. 435, 471 (1987) (Proposal 19)).

Matters Committed to the Agency Head by Statute

If an appeals procedure regarding a particular subject matter is established by law as the exclusive procedure for that subject matter, issues covered by that procedure are not within the scope of the grievance procedure. For example, the imposition of minor disciplinary penalties when Public Law 87-792 requires that appeals from summary hearings and trial boards go only to the Secretary of the Interior with no appeal right for penalties within the Secretary's authority (Police Ass'n of Dist. Of Columbia & Dep't of Interior, Nat'l Park Serv., Park Police, 18 F.L.R.A. 348, 353-55 (1985)).

Department of Veterans Affairs Title 38 Personnel

Title 38 employees may file grievances on any subject concerning COE, except for disciplinary and adverse actions for alleged professional:
  • Inaptitude.
  • Inefficiency.
  • Misconduct.
(Colorado Nurses Ass'n & VAMC, Ft. Lyons, Colo., 25 F.L.R.A. 803, 811 (1987).)

Excepted Service Employees

Excepted service employees' access to the NGP depends on the grievance issue and whether the employee has completed a trial or probationary period as follows:
  • Excepted service preference eligible employees who complete a one-year trial period may grieve any non-prohibited issue under the NGP, including major adverse actions appealable to the MSPB.
  • Excepted service non-preference eligible employees who complete a two-year probationary or trial period may grieve any non-prohibited issue under the NGP, including major adverse actions appealable to the MSPB.
  • Excepted service employees serving probationary, or trial periods may not grieve major adverse actions appealable to the MSPB under the NGP.
(Suzal v. Director, USIA, 32 F.3d 574, 580-82 (D.C. Cir. 1994).)

Federal Employees Employed in Other Personnel Systems

Federal employees employed in other personnel systems (for example, the Federal Aviation Administration (FAA), the Securities and Exchange Commission (SEC), and overseas teachers of the Department of Defense Dependents Schools), have the option of:
  • Filing a grievance.
  • Raising the issue under any procedure available under their agency's personnel system (arbitration awards involving these actions are not appealable to the FLRA).

Expiration of the CBA

In the federal sector, when the CBA expires or the exclusive representative is decertified, personnel policies, practices, and matters affecting working conditions continue to the maximum extent possible absent an express agreement to the contrary or the modification of those COE in a manner consistent with the FSLMRS, including:
  • The NGP.
  • The arbitration procedures.
This means that grievances can be filed, and arbitration can be invoked even after the CBA expires or after the decertification of one exclusive representative and the installation of a new exclusive representative (Indep Union of Pension Emps. For Democracy & Justice, 68 F.L.R.A. 999, 1004-05 (2015)).

Types of Grievances

Federal sector NGPs are broad in scope and permit grievances:
The NGP is the sole and exclusive administrative procedure that bargaining unit employees may use to file a grievance, if the grievance:
  • Is not excluded.
  • Cannot be raised as a ULP.
  • Is not covered by a statutory provision that allows employees to elect other remedies.
(5 U.S.C. § 7121(a)(1).)

Discrimination Cases Under the Federal Sector Equal Employment Opportunity Complaint Process

A federal sector employee alleging that an agency's personnel action resulted from discrimination on a prohibited basis has the option of filing:
  • A complaint using the employing agency's EEO complaint process (possibly resulting in an appeal to the Equal Employment Opportunity Commission (EEOC)).
  • A grievance under the NGP if permitted under the CBA.
(5 U.S.C. § 7121(d).)
The grievance is processed in the same manner as other grievances filed under the NGP, except the employee may request the EEOC review the arbitrator's award (5 U.S.C. § 7121(d)). The employee may also file a civil action in an appropriate US District Court (29 C.F.R. § 1614.301).
The employee's choice of either the NGP or the EEO procedure is an election of remedies, and the employee cannot pursue the claim under both procedures (5 U.S.C. § 7121(d)). The employee exercises this choice when the employee files first a:
  • Timely complaint under the statutory EEO procedure.
  • Timely grievance under the NGP.
(U.S. Dep't of the Navy, Naval Undersea Warefare Ctr. Div., Keyport, Keyport, Wash., 69 F.L.R.A. 292, 296 (2016).)
For more information on the federal sector EEO program, see Practice Note, Discrimination in Federal Public Employment: Federal Sector EEO Program and Deadlines in the Federal Sector EEO Process Chart.

Matters Appealable to the MSPB

Federal sector employees with appeal rights to the MSPB (5 U.S.C. § 7511) faced with an unacceptable performance action or appealable adverse action may elect to file a grievance under the NGP or an appeal with the MSPB. If the employee elects to file a grievance under the NGP, the arbitrator must apply the standards that the MSPB would have applied if the case was appealed to the MSPB.
The arbitrator sustains the agency's decision if the agency's decision is supported by:
(5 U.S.C. § 7701(c)(1).)
However, the arbitrator may not sustain the agency's decision if the employee shows:
  • Harmful error in the application of the agency's procedures when arriving at a decision.
  • That the decision was based on any PPP under 5 U.S.C. § 2302(b).
  • That the decision was not in accordance with law.
At an employee's request, the arbitrator's award can be reviewed by the MSPB. The MSPB reviews the award in the same manner used in direct MSPB appeals. The arbitration award is also appealable to the US Court of Appeals for the Federal Circuit, not the FLRA (5 U.S.C. § 7121(f)).
For more information on the MSPB appeals process and adverse action appeals before the MSPB, see Practice Notes, MSPB Appeals Process: Overview and Adverse Action Appeals Before the Merit Systems Protection Board.

Mixed Cases (MSPB Actions Involving Discrimination)

A mixed case is a complaint of employment discrimination made by a federal sector employee that is related to or stems from an action that can be appealed to the MSPB. There are two kinds of mixed cases:
  • A mixed case complaint is a complaint filed with the employing federal agency through the federal sector EEO complaints process (overseen by the EEOC) that:
    • alleges discrimination based on race, color, religion, sex, national origin, disability, age, or genetic information; and
    • relates to or stems from an action that may be appealed to the MSPB.
  • A mixed case appeal is an appeal filed with the MSPB that alleges the appealable personnel action was based wholly or in part on discrimination based on race, color, religion, sex, national origin, disability, age, or genetic information.
(29 C.F.R. § 1614.302 and 5 C.F.R. § 1201.151.)
Arbitration awards that resolve mixed cases are not appealable to the FLRA (U.S. Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, 65 F.L.R.A. 5, 6-7 (2010)). An employee may request review of an arbitrator's decision in a mixed case with the MSPB if permitted under the NGP and if the discrimination allegations were raised in the grievance process (5 C.F.R. § 1201.155). While the MSPB has jurisdiction over mixed case appeals, if the employee is dissatisfied with the final MSPB decision, the employee may ask the EEOC to review the MSPB's decision. If the MSPB and the EEOC cannot reach agreement the case is referred to the Special Panel for final resolution (5 C.F.R. § 1201.171).
For more information on mixed cases, see Practice Note, Mixed Cases in Federal Public Employment and Federal Sector Availability and Election of Remedies Chart.

PPP Cases Under 5 U.S.C. § 2302(b)

These cases arise when a federal sector employee claims that the employing agency committed a PPP when taking a personnel action, including:
  • Discriminating for or against an employee or applicant based on:
  • Soliciting or considering a recommendation of an individual being considered for a personnel action, unless it is based on personal knowledge or records of those persons furnishing the recommendation and consists of:
    • an evaluation of the individual's work performance, ability, aptitude, or general qualifications; or
    • an evaluation of the individual's character, loyalty, or suitability.
  • Coercing an individual's political activity (including providing a political contribution or service) or taking any action against an employee as reprisal for refusal to engage in political activity.
  • Deceiving or willfully obstructing an individual's right to compete for employment.
  • Influencing an individual to withdraw from competing for a position to improve or injure the prospects of a particular person for employment.
  • Granting any preference or advantage not authorized by law, rule, or regulation to improve or injure the prospects of a particular individual for employment.
  • Appointing, employing, promoting or advancing a relative in a civilian position in the same agency where the employee serves as a public official (or exercises jurisdiction or control).
  • Taking, failing to take, or threatening to take a personnel action against any employee or applicant, because the employee or applicant disclosed information that the employee or applicant reasonably believes is evidence of a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if:
    • the disclosure is not specifically prohibited by law; and
    • the information is not specifically required by executive order (EO) to be kept secret in the interest of national defense or conducting foreign affairs.
  • Taking, failing to take, or threatening to take a personnel action against an employee for any disclosure to the OSC, agency inspector general (IG), or agency designated employee to receive disclosures of information the employee reasonably believes is evidence of:
    • a violation of any law, rule, or regulation;
    • gross mismanagement;
    • a gross waste of funds;
    • an abuse of authority; or
    • substantial and specific danger to public health or safety.
  • Taking, failing to take, or threatening to take a personnel action against any employee, because of a disclosure of information to Congress (including any congressional committee) that the employee reasonably believes is evidence of a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if the information:
    • is not classified;
    • was classified by the agency head outside of the intelligence community; and
    • does not reveal intelligence sources.
  • Taking, failing to take, or threatening to take a personnel action against any employee because the employee:
    • exercises any appeal, complaint, or grievance right granted by law, rule, or regulation;
    • testifies for or assists any individual exercising the right to appeal, complain, or grieve;
    • cooperates with or discloses information to the agency's IG or the OSC under applicable provisions; or
    • refuses to obey an order that violates the law.
  • Discriminating against an employee because of conduct that does not adversely affect performance, except when determining suitability or fitness, including an employee's conviction of any crime under the laws of:
    • the State;
    • the District of Columbia; or
    • the US.
  • Knowingly taking or failing to take, recommend, or approve any personnel action that violates a veterans' preference requirement.
  • Implementing or enforcing any nondisclosure policy, form or agreement that does not contain the language identified under 5 U.S.C. § 2302(b)(13).
  • Accessing the medical records of another employee to further engage in prohibited activity.
(5 U.S.C. § 2302(b).)
Personnel actions that may be a PPP include:
  • Appointments.
  • Promotions.
  • Disciplinary or corrective actions.
  • Details, transfers, or reassignments.
  • Reinstatement actions.
  • Restoration actions.
  • Reemployment actions.
  • Performance evaluations.
  • Decisions concerning pay, benefits, awards concerning education or training, if the education or training may reasonably be expected to lead to an:
    • appointment;
    • promotion;
    • performance evaluation; or
    • other personnel actions, including, a decision to order psychiatric testing or examination,
    • implementation or enforcement of any nondisclosure policy, form or agreement, and
    • any other significant change in duties, responsibilities, or working conditions.
(5 U.S.C. § 2302(a).)
The employee has the choice of seeking corrective action from the OSC or filing a grievance under the NGP, unless the agency's action is excluded under the CBA, but cannot pursue the claim under both procedures. The employee exercises this choice when the employee first:
(5 U.S.C. § 7121(g)(4).)
When the employee elects to file a grievance, an arbitrator is authorized to:
  • Order a stay of the personnel action as described under 5 U.S.C. § 1221(c).
  • Direct the agency to take a disciplinary action identified under 5 U.S.C. § 1215(a)(3) if the agency has the authority to take the action.
(5 U.S.C. § 7121(b)(2)(A).)
For more information on federal sector availability and election of remedies, see Federal Sector Availability and Election of Remedies Chart.

ULPs

The aggrieved party may raise an alleged ULP under the NGP unless the issue is excluded under the CBA, however the aggrieved party may not raise the issue under both the NGP and as a ULP charge filed with the FLRA (5 U.S.C. § 7116(d); AFGE, Local 919, 68 F.L.R.A. 573, 575-76 (2015)).
If the aggrieved party filed a ULP charge, the party cannot later file a grievance over the same issues and an arbitrator may not issue an award regarding the grievance. For an earlier filed ULP charge to preclude the grievance, the following conditions must be met:
  • The issue that is the subject matter of the grievance is the same issue raised in the earlier filed ULP charge.
  • The issue was raised earlier under the ULP procedures.
  • The aggrieved party selected the ULP procedures.
(U.S. Dep't of the Air Force, 62nd Airlift Wing, McChord AFB, Wash., 63 F.L.R.A. 677, 679-80 (2009).)
The aggrieved party raises the issue when the grievance or ULP charge is filed, even if the grievance or ULP charge is subsequently withdrawn and not adjudicated on the merits (U.S. Dep't of the Navy, Naval Air Eng'g Station, Lakehurst, N.J., 64 F.L.R.A. 1110, 1112 (2010)).
For more information on ULPs before the FLRA, see Practice Note, Unfair Labor Practices Under the Federal Service Labor-Management Relations Statute (FSLMRS): Overview and FLRA ULP Process Flowchart.

The Arbitration Hearing

If the parties are not able to successfully resolve a grievance during the defined steps of the NGP, then either the union or the agency may invoke arbitration. Employees may not invoke arbitration. (5 U.S.C. § 7121(b)(1)(c)(iii).)
When bringing a case to arbitration, the parties should:
  • Get everything on the record.
  • Explain their positions thoroughly during the arbitration hearing.
  • Fully explain the party's position on possible remedies and address any positions on other party's proposed remedies.

Get Everything on the Record

Generally, the FLRA will not consider anything that a party could have presented at the arbitration hearing, including:
  • Factual assertions.
  • Exhibits.
  • Legal arguments.
  • Requests for a specific remedy.
  • Arguments against remedies that another party requests.
(5 C.F.R. §§ 2425.4(c) and 2429.5; SSA, Region V, 67 F.L.R.A. 155, 156 (2013).)

Explain Positions During the Hearing

Parties must explain their positions on all issues during the arbitration hearing to preserve their right to file exceptions to the FLRA. Neither party should stipulate to an issue unless they are certain about the issue. Once the parties stipulate on the record, the parties and the arbitrator are bound by the stipulation. The FLRA will not find that the arbitrator exceeds their authority by addressing any issue that:
  • Is necessary to decide a stipulated issue.
  • Necessarily arises from issues specifically included in the stipulation.
(U.S. Dep't of Interior, Bureau of Reclamation, Great Plains Region, Colo./Wyo. Area Office, 68 F.L.R.A. 992, 993-95 (2015).)
Absent a stipulated issue, the FLRA gives substantial deference to an arbitrator's formulation of the issue (USDA, Forest Serv., Monongahela Nat'l Forest, 64 F.L.R.A. 1126, 1129-30 (2010)).
However, the FLRA found that an arbitrator exceeded their authority by:
  • Resolving an issue not included among the stipulated issues.
  • Failing to make a finding that it was necessary to resolve the issue in order to resolve the stipulated issue.
  • Failing to interpret the stipulation to include the resolved issue.
(U.S. Dep't of Trans., FAA, 64 FLRA 612, 613-14 (2010).)

Explain Positions on Possible Remedies

To preserve a challenge to the FLRA on exceptions, a party must articulate clearly to the arbitrator during the hearing:
  • All potential remedies.
  • Specifically, what the party wants and disagrees with, for example:
    • whether the party believes that a proposed remedy exceeds the arbitrator's authority; or
    • that the remedy is contrary to law.
(U.S. Dep't of VA, Bos. Healthcare Sys., Bos., Mass., 68 F.L.R.A. 116, 117 (2014) (finding that mere submission of agency handbook and policy to arbitrator, without explanation, did not sufficiently raise arguments to arbitrator).)