The fourth question is whether the Arbitrator’s decision to sustain the grievance is contrary to § 7116 of the Federal Service Labor-Management Relations Statute (the Statute)^[1] because any change in the grievant’s conditions of employment was de minimis and the Arbitrator applied an erroneous presumption to the Agency’s bargaining obligation. As the Arbitrator did not find a violation of the Statute, the cited statutory standards do not apply. Thus, the answer is no.

 

 

The sixth question is whether the Arbitrator erroneously applied the requirements of the Rehabilitation Act.^[2] Because the Arbitrator did not apply the Rehabilitation Act, the answer is no.

 

 

 

 

At arbitration, the stipulated issue before the Arbitrator was whether “the [Agency] violate[d] Article[s] 4, 5, 8, 41, and 47 of the [parties’ agreement] and the [MOU]? If so, what shall the remedy be?”^[3] The Arbitrator concluded that the Agency had promised to accommodate the grievant’s work‑related injury by permitting her to work the modified schedule. Specifically, the Arbitrator found that the Agency was bound by both the MOU and the parties’ past practice. In this regard, the Arbitrator rejected the Agency’s argument that the grievant’s supervisor lacked the authority to bind the Agency when she executed the MOU with the grievant. Similarly, he rejected the Agency’s argument that it did not knowingly acquiesce to the past practice established over the “approximately ten . . . years” that the grievant worked the modified schedule using LWOP.^[4] In addition, the Arbitrator found that the longstanding nature of the past practice was consistent with the permanence of the grievant’s work-related injury, and that providing the grievant with LWOP did not cause the Agency “undue hardship.”^[5] Because the Agency was bound by the MOU and the past practice, and the Agency had not sought to negotiate a change in the grievant’s conditions of employment, the Arbitrator concluded that “the longstanding practice must continue.”^[6] Accordingly, the Arbitrator sustained the grievance in its entirety. As a remedy, he directed the Agency to reinstate the grievant’s modified work schedule, including “permitt[ing]” her to use LWOP, and to restore her previously used FMLA leave.^[7]

 

 

 

 

 

In its exceptions, the Agency argues that the awarded remedy is “contrary to” Article 22 of the parties’ agreement.^[8] The Authority will review an award in which the exception alleges that the award is deficient:  “(1) [b]ecause it is contrary to any law, rule, or regulation; or (2) [o]n any other grounds similar to those applied . . . in private[-]sector labor-management relations.”^[9] However, § 2425.6(e)(1) of the Authority’s Regulations states that an exception “may be subject to dismissal or denial if: [t]he excepting party fails to raise and support” a ground listed in 5 C.F.R. § 2425.6(a)-(c).^[10] For example, the Authority has held that an excepting party’s argument that an award is “contrary to” a collective-bargaining agreement does not raise a ground for review recognized by the Authority.^[11] Similarly, here, the Agency’s argument that the award is “contrary to”^[12] the parties’ agreement does not raise one of the private-sector grounds currently recognized by the Authority. And the Agency does not cite legal authority to support any ground not currently recognized by the Authority.^[13] Accordingly, we dismiss this exception.^[14]

 

 

The Agency argues that the Arbitrator exceeded his authority when he awarded a remedy without finding a contractual violation.^[15] When evaluating exceptions to an arbitration award, the Authority considers the award and the record as a whole.^[16] That is, the Authority interprets the language of an award in context.^[17]  

 

The stipulated issue before the Arbitrator asked whether the Agency violated the parties’ agreement and the MOU.^[18] In “sustain[ing]” the grievance “in its entirety,”^[19] the Arbitrator emphasized that the Agency violated its obligation under the MOU and the parties’ binding past practice.^[20] Thus, read in context, the most reasonable reading of the award is that the Arbitrator found a contractual violation. Accordingly, the Arbitrator did not grant a remedy without finding a contractual violation, andwe deny the exceeded‑authority exception.

 

The Agency argues that the award is contrary to law, rule, or regulation in several respects. When an exception involves an award’s consistency with law, rule, or regulation, the Authority reviews any question of law raised by the exception and the award de novo.^[21] In applying the standard of de novo review, the Authority assesses whether the arbitrator’s legal conclusions are consistent with the applicable standard of law.^[22] In making that assessment, the Authority defers to the Arbitrator’s underlying factual findings, unless the appealing party establishes that those findings are “nonfacts.”^[23]   

 

The Agency argues that the award is contrary to a rule because the MOU violates the Agency’s Internal Revenue Manual (IRM).^[24] According to the Agency, the terms of the IRM dictate that the grievant’s supervisor lacked the authority “to approve discretionary LWOP for such a prolonged period” when she and the grievant signed the MOU.^[25]

 

Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any law, rule, or regulation.^[26] For purposes of § 7122(a)(1), the Authority has defined rule or regulation to include both government-wide and governing agency rules and regulations.^[27]  However, when both a collective-bargaining agreement and an agency-specific – as opposed to government-wide – rule or regulation apply to a matter, the negotiated agreement governs the matter’s disposition.^[28] Thus, when an agency negotiates an agreement that conflicts with an internal agency regulation, the agency is nonetheless bound by its agreement.^[29]  

 

Here, the Arbitrator found that the Agency was bound by the MOU to permit the grievant to work the modified schedule using LWOP, and he rejected the Agency’s claim that the grievant’s supervisor lacked the authority to bind the Agency through the MOU.^[30] The Authority has held that an arbitrator’s determination of the existence of a collective‑bargaining agreement is a factual determination.^[31] And the Agency has not filed a nonfact exception to the award. Thus, we defer to the Arbitrator’s factual determination that the grievant and her supervisor entered into an MOU. And because the MOU governs over the allegedly inconsistent IRM, the IRM provides no basis for finding the MOU unenforceable – or the award contrary to the IRM. Accordingly, we deny this exception.

 

 

                The Arbitrator found not only that the Agency was bound by the MOU, but also that the parties established a binding past practice by permitting the grievant to work the modified schedule for over ten years.^[32] The Agency argues that the Arbitrator’s past‑practice finding is contrary to law because responsible management did not “knowingly acquiesce” to the grievant’s modified schedule.^[33] 

 

                The Authority has held that where an arbitrator has based an award on separate and independent grounds, an excepting party must establish that all of the grounds are deficient in order to show that the award is deficient.^[34] In those circumstances, if the excepting party does not allege and demonstrate that one of the separate and independent grounds for the award is deficient, then it is unnecessary for the Authority to resolve exceptions concerning the other separate and independent grounds.^[35] Here, the Arbitrator’s finding of a binding MOU provides a separate and independent ground for his award. As the Agency has not demonstrated that the Arbitrator’s findings regarding the MOU render the award deficient, the award would stand regardless of whether the Arbitrator made erroneous findings regarding the        past-practice issue.^[36] Accordingly, we find it unnecessary to resolve the Agency’s past-practice exception.

 

 

The Agency argues that the award conflicts with § 7116 of the Statute because: (1) any change to the grievant’s conditions of employment was not more than de minimis;^[37] and (2) the Arbitrator erroneously presumed that the Agency could not deviate from an established past practice “absent a change in circumstances.”^[38]

Although the grievance alleged a violation of both the parties’ agreement and the Statute,^[39] the stipulated issue before the Arbitrator was limited to whether the Agency violated the parties’ agreement and the MOU.^[40] Moreover, the Arbitrator did not refer to the Statute or make unfair-labor-practice findings in his decision to sustain the grievance. Therefore, read in context,we find that the most reasonable reading of the award is that the Arbitrator found only a contractual, and not a statutory, violation.

 

Both of the Agency’s arguments presume that the Arbitrator resolved a statutory bargaining issue. As for the first argument – that any change was                   de minimis – an analysis of whether a change in conditions of employment is greater than de minimis applies in cases involving the duty to bargain under the Statute.^[41] And the second argument is that the Arbitrator “applied an erroneous presumption of law”^[42] by requiring the Agency to “present a reason for changing a bargaining[-]unit employee’s working conditions.” ^[43] In support of its argument, the Agency cites Department of the Air Force, March Air Reserve Base, California,^[44] which concerns the statutory duty to bargain. 

 

 

 

The Agency argues that the awarded remedy conflicts with § 7116 of the Statute because the Agency interprets the Arbitrator’s finding that the parties’ “longstanding practice must continue”^[45] as an unlawful order that the Agency “permanently” return the grievant to her modified schedule.^[46] According to the Agency, even assuming that it violated the MOU and the established past practice, the only remedy available to the Arbitrator was to direct the Agency to bargain.^[47] The Agency cites NTEU^[48]and NTEU, Chapter 68,^[49] and argues that the Arbitrator was required to base his remedy on the violated provisions of the parties’ agreement. According to the Agency, under Article 47 of the agreement, which governs mid-term bargaining, the only lawful remedy available to the Arbitrator was to order bargaining.^[50] As such, the Agency argues that the Arbitrator’s restoration of the grievant’s modified schedule is contrary to law.^[51]

The Authority has held that arbitrators have “great latitude in fashioning remedies” for contractual violations.^[52] In this regard, where an arbitrator crafts a remedy to redress a contractual violation, the arbitrator is not required to adopt a remedy that might be appropriate in disposing of a statutory violation.^[53] As particularly relevant here, where an arbitrator finds that an agency’s refusal to bargain violates a collective‑bargaining agreement, the propriety of status quo ante (SQA) relief is governed by the arbitrator’s remedial authority under the violated agreement, rather than the factors that govern such relief in cases involving statutory violations.^[54]

 

In the award, the Arbitrator states that the Agency did not seek to negotiate the change in the grievant’s modified schedule, and concludes that, absent the Agency’s showing of a change in operations that affects the grievant’s accommodation, “the longstanding practice must continue.”^[55] Nowhere in the award does the Arbitrator impose a remedy of “permanent[]”^[56] SQA relief that would preclude bargaining between the parties. In addition, because the Arbitrator did not find a violation of § 7116, the rules governing SQA relief in statutory violations are inapplicable here.^[57] As the Arbitrator sustained the grievance on contractual grounds, his award of SQA relief falls within the great latitude afforded to arbitrators to fashion remedies in contractual violations.^[58] 

 

Moreover, the Agency’s reliance on NTEU and NTEU, Chapter 68 is misplaced. In those decisions, the Authority held than an arbitrator was not required to award SQA relief to remedy a contractual violation.^[59] Neither decision establishes that an arbitrator is prohibited from awarding SQA relief to remedy a contractual violation. Thus, the Agency’s reliance on those decisions provides no basis for finding the remedy contrary to § 7116. 

 

 

 

The Agency asserts that the Arbitrator failed to properly apply the standards of the Rehabilitation Act (the Act) because he erroneously required the Agency to demonstrate that the modified schedule posed an “undue hardship” to the Agency.^[60] Under the Act, federal agencies must provide reasonable accommodations for qualified employees with disabilities unless they can show that to do so would impose undue hardship on their operations.^[61] 

Here, the Arbitrator did state that the modified schedule did not pose an “undue hardship” on the Agency.^[62] But, as the Agency acknowledges, the Arbitrator did not apply the requirements of the Act in resolving the grievance,^[63] and there is no indication that he found a violation of the Act. As a result, the legal standards that apply in addressing alleged violations of the Act do not apply, and the Agency’s reliance on those standards provides no basis for finding the award deficient. Accordingly, we deny this exception.

 

The Agency argues that the award is contrary to 5 C.F.R. § 340.202 because it requires the Agency to permit the grievant “to work thirty-two hours per week while remaining a full-time employee.”^[64] In response, the Union asserts that the grievant is a full-time employee because, even under the modified schedule, she “regularly works in excess of [thirty-two] hours per week.”^[65] 

 

Section 340.202, in relevant part, defines      part-time career employment as “regularly scheduled work of from [sixteen] to [thirty-two] hours per week performed by an employee of an agency.”^[66]  In the grievance, the Union asked that the Agency extend the grievant’s workdays by fifteen minutes “to allow for a [thirty-three] hour week, [f]ull‑[t]ime employment.”^[67] In sustaining the grievance and restoring the grievant’s modified schedule – including one day of                 LWOP per week – the Arbitrator did not specify the number of hours the grievant should work each week.^[68] Thus, nothing in the award precludes the Agency from assigning the grievant a thirty-three-hour work          week – and thereby complying with § 340.202. Consequently, there is no basis for setting aside the remedy as contrary to § 340.202, and we deny the exception.

 

 

 

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