October 13th, 2026 | Issue #18-10

FLRA has been without a general counsel for years, with the result that ULP complaints cannot be issued. Lots of ULP charges are filed at the regions, and the regions provide their recommendations as to whether complaints should be issued, but it takes a GC in place to file a complaint.

President Trump appointed Charlton L. Allen as General Counsel on August 20, 2026, for a five-year term expiring August 23, 2031. Mr. Allen's bio is at https://www.flra.gov/OGC_bios.

FLRA had disestablished its office of ALJs—not much happening with complaints not issuing. But with the arrival of Mr. Allen, it seems likely that complaints will issue. When that happens, they are assigned to an ALJ for adjudication.

So FLRA has now appointed ALJ Leisha Self. Her bio is at https://www.flra.gov/system/files/documents/260922 - Press Release - FLRA appoints Administrative Law Judge.pdf

A FOIA request is pending with FLRA to determine how many regional recommendations are in the hopper with recommendations for issuance of complaints. When we have the answer, we will post the result in another Case Alert.

Unlike the private sector, where arbitrators’ awards interpreting and applying labor contracts are not subject to administrative review, in the federal sector, FLRA has the statutory responsibility to review exceptions to awards for compliance with complicated, sometimes inconsistent, often confusing provisions of federal sector labor law, the Back Pay Act, EEO and whistleblower protection statutes, government-wide regulations, and negotiability law, on and on. Most of the FLRA’s recent docket involves review of arbitrators’ awards. There are few negotiability, representation, and ULP decisions.

Although awards in the private sector are not subject to review by the NLRB, they are occasionally challenged in federal courts.

Long ago the Supreme Court determined in United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) https://www.law.cornell.edu/supremecourt/text/363/593, that:

It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.

From United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987) https://supreme.justia.com/cases/federal/us/484/29/:

As the Court has said, the arbitrator's award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract, and cannot simply reflect the arbitrator's own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.

The rule then is that arbitrators receive deference. That said, the award must draw its essence from the contract, and that condition leads to litigation over whether federal sector awards properly construe and apply a contract.

FLRA has wavered this way and that over the years relative to the deference given to awards challenged on an “essence” exception.

FLRA now reigns in arbitrators with its decision in SSA and AFGE Local 2369, 74 FLRA 555 (Sept. 25, 2026) (Member Wagner dissenting)https://www.flra.gov/decisions/v74/74-82, involving a grievance over what constituted a contractually-permitted telework or remote work site. The union provided some evidence that an employee’s home could be a proper remote site; the agency disagreed, and the contract clause favored but did not compel an interpretation that the better reading was the agency’s. The arbitrator’s award favored the union’s position.

FLRA stepped in on agency exceptions to set the award aside because, as FLRA viewed it, the contract clause was unambiguous (under the circumstances, the employee’s home could not be a remote site), and the union’s evidence was lacking in probative value.

FLRA determined in a comprehensive decision that drew support from selected decisions of circuit courts of appeal:

[T]he Authority cannot extend “blind deference to erroneous arbitral determinations . . . “

. . . Without the right to meaningfully challenge misinterpretations of their contracts, parties are deprived of stability and repose because a future arbitrator may find them in violation of a contractual obligation that they neither negotiated, nor had reason to anticipate. Thus, we reject this maximally deferential understanding of the arbitrator’s role; parties select arbitrators to read their contracts—not to serve as faultless sovereigns of their collective-bargaining relationship. . . .

[A]rbitrators may rely on extrinsic evidence of the parties’ contemporaneous understanding to interpret the agreement when a term in a collective-bargaining agreement is ambiguous. However, when an agreement is clear, arbitrators may not look to extrinsic evidence to alter the meaning of unambiguous contractual terms. A term is ambiguous when it is reasonably susceptible to multiple interpretations, not simply when the parties later disagree on its meaning. Moreover, as “[t]he aim of contract interpretation is to achieve. . . the parties’ intent at the time of bargain,” arbitrators “may not rely on outside sources not within the parties’ contemplation at the time they drafted their agreement.” . . .

Because the Arbitrator expressly rejected the parties’ stated, intended meaning of unambiguous contract language, and effectively rewrote a provision of the CBA on the basis of improper, extrinsic evidence, the award does not represent a plausible interpretation of the CBA. Consequently, we grant the Agency’s essence exception and set aside the award

Days after SSA, FLRA decided an arbitrator could not ignore what FLRA determined was a plainly-stated contract requirement of notification from the union to the agency of an intent to arbitrate a grievance. The arbitrator forgave the lack of notice when, through the union’s FMCS panel request, resulting in immediate notice to the agency of an arbitration panel, the agency knew that arbitration was being invoked at about the same time it should have received notice of intent from the union. FLRA insisted that contractual procedural niceties be observed; an award favoring the union was set aside. DHUD and AFGE Local 911, 74 FLRA 592 (2026) (Member Arrington concurring; Member Wagner dissenting) https://www.flra.gov/decisions/v74/74-83.

Member Wagner’s comprehensive dissents in both cases emphasized the deference due arbitrators’ contract interpretation under the Supreme Court precedent. The problem, to be sure, was that the same precedent spoke to the need for awards to draw their essence from the contract and the need for arbitrators to avoid dispensing their own brands of industrial justice. Disputes over what’s the essence of contract articles will occupy us for some time to come.

Monthly Peter Broida will discuss new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC.

FREE to subscribe via iTunes or RSS

View a detailed list of all past episodes at deweypub.com/podcast

Topics discussed on #155 - September 18th, 2026:

• FLRA decisions on union dues revocations;
• appointment of FLRA General Counsel and FSIP members
• MSPB regulatory change involving penalty determinations
• GAO study on costs of administrative leave during deferred resignation program;
• OPM regulations divesting MSPB of jurisdiction over appeals involving RFs, probationary terminations, and suitability determinations;
• Federal district court decision considering implications of attorney-client and attorney work-product privilege for inquiries to AI platforms;