United States Department of Health and Human Services (Agency) and National Treasury Employees Union (Union)

648 Decisions of the Federal Labor Relations Authority 74 FLRA No. 87
74 FLRA No. 87
UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN
SERVICES
(Agency)
and
NATIONAL TREASURY
EMPLOYEES UNION
(Union)
0-AR-6103
_____
DECISION
October 21, 2026
_____
Before the Authority: Colleen Duffy Kiko, Chairman,
and Anne Wagner and Charles O. Arrington, Members1
I. Statement of the Case
Arbitrator Michael J. Falvo issued an award
finding that the Agency implemented a memorandum
issued by President Donald J. Trump, entitled “Return to
In-Person Work” (the memorandum),2 in a way that
violated the parties’ collective-bargaining agreement and
constituted an unfair labor practice (ULP) under the
1 Member Arrington has not participated in this decision.
2 90 Fed. Reg. 8251 (Jan. 20, 2025) (Presidential Memorandum).
3 5 U.S.C. §§ 7101-7135.
4 Section A of Article 26.8 concerns telework and provides, in
relevant part:
1. The Employer may terminate, suspend, or modify,
an employee’s participation in the telework program
for cause, such as:
a. Failure to meet or continue to meet the
eligibility criteria for telework in this Article;
b. Failure to adhere to the provisions of the
telework agreement . . . and/or of this
Article;
c. Failure to accurately and truthfully report
time worked;
d. Organizational exigencies that impact on
the mission of the Employer, and require the
employee to perform work at the official
duty station;
e. For misconduct in connection with the
employee’s obligations under the Workplace
Flexibilities telework or remote[-]work
programs as set forth in this
Article/[telework agreement].
Federal Service Labor-Management Relations Statute
(the Statute).3 The Agency filed exceptions challenging
the award on nonfact, essence, and exceeded-authority
grounds. For the reasons explained below, we find that the
Agency does not demonstrate that the award is deficient
on any of these grounds, and we deny the exceptions.
II. Background and Arbitrator’s Award
The parties executed their agreement in
July 2023. Article 26 of the agreement (Article 26)
concerns the Agency’s telework and remote-work
program. Article 26, Section 8 (Article 26.8) establishes
the process for terminating employees’ participation in the
telework and remote-work programs “for cause” in
accordance with a list of illustrative criteria.4 In
January 2025, President Trump issued the memorandum,
which states that executive-branch agencies “shall, as soon
as practicable, take all necessary steps to terminate
remote[-]work arrangements and require employees to
return to work in-person at their respective duty stations
on a full-time basis.”5 The memorandum further requires
that its implementation be “consistent with applicable
law.”6
On February 7, 2025, the Agency issued a
directive, notifying employees that it had revised its
telework and remote-work policy to implement the
memorandum (the directive). The directive stated that the
Agency would require all employees to work at an Agency
facility “unless otherwise excepted consistent with
applicable law.”7 The directive further stated that “only
situational and ad hoc telework agreements would be
Exceptions, Attach. 2, National Collective-Bargaining
Agreement (CBA) at 148. Section B of Article 26.8 concerns
remote work and provides, in relevant part:
1. The Agency may terminate or modify an
employee’s remote[-]work arrangement (unless the
employee was hired as a remote worker) for cause, for
the reasons described [in] Section 3H3 of this Article.
When deciding to terminate a remote[-]work
agreement, the Employer will document and be able to
demonstrate the reasons for the termination. . . .
2. For[-]cause termination or modification will be
based on one of the following:
a. the employee is no longer eligible for the
reasons cited in subsections 3H3 above;
b. the employee does not comply with the
terms of the written [agreement] for remote
work (5 U.S.C. § 6502(b)(3)); or
c. circumstances in which work is no longer
portable.
Id. at 149.
5 Award at 4 (quoting Presidential Memorandum, 90 Fed. Reg.
at 8251).
6 Id.
7 Id. at 8 (quoting Agency summary of the directive); see also
Opp’n, Ex. C, Directive at 1.

74 FLRA No. 87 Decisions of the Federal Labor Relations Authority 649
established going forward.”8 Consequently,
bargaining-unit employees, including those who had been
hired based on remote-job announcements, were required
to report to an Agency facility by dates specified in the
directive.
The Union filed a grievance alleging that the
directive violated multiple sections of Article 26, as well
as Article 4, Section 1 of the parties’ agreement
(Article 4.1), which concerns the resolution of conflicts
between provisions of the parties’ agreement and laws,
government-wide regulations, or Agency regulations.9
The grievance also alleged that the Agency violated
§ 7114(a)(1) of the Statute10 by repudiating the parties’
agreement, and § 7116(a)(7) of the Statute11 by enforcing
a new government-wide regulation that conflicted with the
parties’ preexisting agreement. The Agency denied the
grievance, and the parties proceeded to arbitration.
Rather than framing the issues, the Arbitrator
listed and responded to the issues submitted separately by
each party. As relevant here, he considered whether the
Agency’s implementation of the memorandum violated
the Telework Enhancement Act of 2010 (the Telework
Act);12 Articles 4 and 26 of the parties’ agreement;13 and
§§ 7114(a)(1) and 7116(a)(1), (5), (7), and (8) of the
Statute.14
The Arbitrator first found that the Union could
“not rely on the [Telework Act]” because it was not part of
the grievance, and he denied the Union’s claim related to
that statute.15
As for the contractual issues, the Arbitrator
interpreted Article 4, Section 1B (Article 4.1B) as
“prohibit[ing] the enforcement of any rule or regulation
8 Award at 8.
9 CBA at 32.
10 5 U.S.C. § 7114(a)(1).
11 Id. § 7116(a)(7) (making it a ULP for an agency “to enforce
any rule or regulation . . . which is in conflict with any applicable
collective[-]bargaining agreement if the agreement was in effect
before the date the rule or regulation was prescribed”).
12 Id. §§ 6501-6105.
13 Award at 2.
14 Id.
15 Id. at 51 n.11; see also id. at 2.
16 Id. at 52. Article 4.1B states, in relevant part, that “[a]ll
government-wide regulations . . . in effect as of the effective date
of this [a]greement, have full force and authority. To the extent
they may be inconsistent with the provisions of this [a]greement;
the government-wide regulations will supersede and govern.”
CBA at 32 (emphasis added).
published after the effective date of the [parties’]
agreement that conflicts with the terms of the
[a]greement.”16 He found that the memorandum was
published after the effective date of the parties’ agreement.
Notwithstanding Article 4.1B, he acknowledged that
Article 4, Section 2B of the parties’ agreement
(Article 4.2B)17 allows the Agency to immediately
implement a “government-wide rule or regulation that the
[Agency] is obligated by law to implement immediately
upon issuance.”18 However, the Arbitrator found that
Article 4.2B did not apply because the Agency was not
legally obligated to immediately implement the
memorandum.19 He concluded that the directive
implementing the memorandum violated the parties’
agreement, including Article 26.8, because the Agency did
not terminate remote-work and telework agreements “only
‘for cause’ and in accordance with the listed criteria.”20
Addressing the alleged ULPs, the Arbitrator first
restated the wording of the memorandum, including that it
“shall be implemented consistent with applicable law.”21
He then explained that Ҥ 7116(a)(7) [of the Statute]
makes it [a ULP] for an agency to ‘enforce any rule or
regulation . . . which is in conflict with any applicable
collective[-]bargaining agreement if the agreement was in
effect before the rule or regulation was prescribed.’”22 The
Arbitrator found that the memorandum is a “rule or
regulation” within the meaning of § 7116(a)(7).23 Because
the agreement was in effect before the memorandum, and
the Agency’s implementation of the memorandum
conflicted with the agreement, the Arbitrator found that the
Authority’s decisions in U.S. Department of Veterans
Affairs (VA)24 and AFGE, National Citizenship and
17 Article 4.2 states, in relevant part:
A. Any rule or regulation published after the
effective date of this Agreement, over which
the Employer is obligated to bargain to the
extent required by law, will not be enforced
for bargaining[-]unit employees . . . if it
conflicts with the specific terms of the
Agreement. . . .
B. . . . Section 2A above shall not apply to
any government-wide rule or regulation that
the Employer is obligated by law to
implement immediately upon issuance of the
regulation.
CBA at 32.
18 Award at 53 (emphasis added).
19 Id.
20 Id.
21 Id. at 51 (quoting Presidential Memorandum, 90 Fed. Reg.
at 8251).
22 Id.
23 Id. at 52.
24 72 FLRA 287 (2021).

650 Decisions of the Federal Labor Relations Authority 74 FLRA No. 87
Immigration Services25 “compel[led] the conclusion” that
the Agency “violated the Statute.”26
The Arbitrator also found that the Agency
violated §§ 7114(a)(1) and 7116(a)(1), (5), (7), and (8) of
the Statute “by repudiating the parties’ [agreement] when
it issued [the directive].”27 Despite finding a violation of
§ 7116(a)(5), which concerns good-faith negotiations and
consultation,28 the Arbitrator did not specifically discuss
the Agency’s bargaining obligations other than to say that
the Agency had “timely” invited the Union “to engage in
post-implementation bargaining.”29
As remedies, the Arbitrator directed the Agency
to rescind the directive, reinstate telework and
remote-work agreements “terminated as a result of the
[directive],” and post a notice stating that the Agency
“violated the Statute by repudiating the [parties’]
agreement.”30
The Agency filed exceptions to the award on
February 17, 2026, and the Union filed an opposition to
the exceptions on March 19, 2026.31
III. Analysis and Conclusions
A. The Agency does not demonstrate that
the award is based on nonfacts.
The Agency claims that the award is based on
several nonfacts.32 To establish that an award is based on
a nonfact, the excepting party must establish that a central
fact underlying the award is clearly erroneous, but for
which the arbitrator would have reached a different
result.33 Arbitrators’ interpretations of
collective-bargaining agreements and legal conclusions
cannot be challenged as nonfacts.34 Additionally,
25 73 FLRA 490 (2023).
26 Award at 52.
27 Id. at 2 (answering “yes” to the Union’s repudiation issue),
53 (directing Agency to post a notice “admitting that the Agency
violated the Statute by repudiating the collective[-]bargaining
agreement”); see also id. at 52 (finding that “the Agency
breached the [parties’ a]greement”).
28 5 U.S.C. § 7116(a)(5).
29 Award at 51 n.11.
30 Id. at 53.
31 On February 26, 2026, the Authority’s Office of Case Intake
and Publication issued an order notifying the Agency that the
exceptions were deficient because they did not include a copy of
the award, as required by 5 C.F.R. § 2425.4(a)(5), and directing
the Agency to correct the deficiency by filing a copy of the award
by March 12. The Agency corrected the deficiency by filing a
copy of the award on March 11.
32 Exceptions at 7-11.
33 U.S. DHS, U.S. CBP, 74 FLRA 403, 408 (2026) (CBP) (citing
U.S. Dep’t of VA, John J. Pershing VA Med. Ctr.,
Poplar Bluff, Mo., 73 FLRA 498, 501 (2023)).
arguments based on a misunderstanding of an award do not
demonstrate that the award is based on nonfacts.35 Further,
disagreement with an arbitrator’s evaluation of evidence,
including the weight accorded such evidence, does not
provide a basis for finding that an award is based on a
nonfact.36
First, the Agency argues that the Arbitrator found
that “the Agency terminated all . . . telework and
remote-work agreements,” and that this purported finding
was erroneous because “evidence established that
telework and remote work continued to be available, albeit
in more limited circumstances.”37 However, the Arbitrator
did not find that the Agency terminated all telework and
remote-work agreements. As such, the Agency’s
argument misunderstands the award. Therefore, the
argument does not demonstrate that the award is based on
a nonfact.38
Second, the Agency asserts that the Arbitrator
“determined that the Agency violated 5 U.S.C
§ 7116(a)(1), (5), (7), and (8) by implementing the
[directive] without satisfying its statutory bargaining
obligations,”39 and that this purported finding is
underpinned by “incorrect factual assumptions regarding
notice and bargaining.”40 The Agency does not identify
the Arbitrator’s allegedly incorrect “assumptions,” but
asserts that “[t]he record” supports its argument that a
“finding of a bargaining violation is deficient where it
ignores undisputed evidence of notice and an opportunity
to bargain.”41 According to the Agency, the record
“demonstrates” that: (1) the Agency complied with
Articles 3 and 26 of the parties’ agreement by notifying the
Union and employees of the impending telework changes
and offering post-implementation bargaining; and (2) the
Union did not “request a briefing or provide proposals in
line with Article 2 of the parties[ʼ agreement].”42
34 AFGE, Council 222, 73 FLRA 54, 55 (2022) (Council 222)
(citing NAIL, Loc. 5, 70 FLRA 550, 552 (2018)).
35 AFGE, Loc. 3601, 73 FLRA 515, 517 (2023) (Local 3601)
(citing AFGE, Council of Prison Locs. #33, Loc. 0922, 69 FLRA
351, 353 (2016) (Member Pizzella concurring)).
36 U.S. Dep’t of the Army, Fort Huachuca, Ariz., 74 FLRA 317,
320 (2025) (Fort Huachuca) (citing NTEU, Chapter 46,
73 FLRA 654, 655-56 (2023)).
37 Exceptions at 7; see also id. at 9 (asserting that Arbitrator found
that “all telework and remote[-]work agreements were
terminated”).
38 Local 3601, 73 FLRA at 517.
39 Exceptions at 8.
40 Id. at 9.
41 Id. at 8-9.
42 Id. at 8. Article 3 concerns midterm bargaining. CBA
at 25-31. Article 2 – Contract Duration and Termination – does
not mention briefing or proposals. See CBA at 23-24.

74 FLRA No. 87 Decisions of the Federal Labor Relations Authority 651
However, the Agency fails to provide record citations for
any aspect of the proffered facts beyond an inapposite
citation to testimony concerning the memorandum’s legal
effect.43 Moreover, one of its supporting legal authorities
has a fictitious citation44 and the other three do not concern
the legal impact of failing to request bargaining following
notice of a change.45
Under § 2425.6(b) of the Authority’s
Regulations, a party arguing that an award is deficient on
the listed private-sector grounds, including nonfact, has an
express duty to “explain how, under standards set forth in
the decisional law of the Authority or [f]ederal courts,” the
award is deficient.46 Section 2425.6(e)(1) of the
Authority’s Regulations provides that an exception “may
be subject to . . . denial if . . . [t]he excepting party fails to
. . . support a ground” listed in § 2425.6(a)-(c).47 Because
the Agency provides no relevant factual and legal support
for its second nonfact assertion, we deny this nonfact
argument as unsupported.48
43 See Exceptions at 8 & n.24 (citing Exceptions, Attach. C, Hr’g
Tr., at 236, lines 9-15, which concern the Agency’s interpretation
of the memorandum rather than the notice it provided the Union).
44 See id. at 9 n.26. The Agency cites “U.S. Dep’t of the Air
Force, 913th Air Wing, 57 FLRA 469, 472 (2001),” which does
not exist.
45 See Exceptions at 9 nn.26-27 (citing U.S. DHS, U.S. CBP,
66 FLRA 335, 338 (2011) (concerning alleged nonfacts disputed
at arbitration); Dep’t of the Treasury, IRS v. FLRA, 707 F.2d. 574,
580 (D.C. Cir. 1983) (concerning remand to Authority where
bargaining proposal possibly affected internal security); Dep’t of
HHS, SSA, 24 FLRA 403, 407 (1986) (concerning which
standard to use when identifying changes requiring bargaining)).
46 5 C.F.R. § 2425.6(b); id. § 2425.6(b)(2)(ii).
47 Id. § 2425.6(e)(1).
48 See, e.g., AFGE, Loc. 2338, 71 FLRA 1131, 1133 & n.30
(2020) (Member Abbott dissenting in part on other grounds)
(denying nonfact exception that party “fail[ed] to support”);
see also NAIL, Loc. 5, 65 FLRA 495, 499 n.4 (2011) (denying
nonfact exception as unsupported where excepting party
provided “no evidence to support its claim” and failed “to
identify any nonfact”); AFGE, Loc. 405, 63 FLRA 149, 152 n.9
(2009) (rejecting nonfact arguments where party failed to
“provide supporting evidence for its claims”).
49 See notes 43-45 above.
50 Exceptions at 2 n.4 (“U.S. Envtl. Prot. Agency, 43 FLRA 852,
861-62 (1991)”), 4 n.8 (“U.S. Dep’t of the Treasury, IRS v.
NTEU, 68 FLRA 677, 680 (2015); U.S. DOJ, INS v. AFGE,
64 FLRA 300, 303 (2009)”), 4 n.14 (“U.S. DHS, TSA v. AFGE,
68 FLRA 243, 245 (2015)”), 5 n.16 (“U.S. DOJ, Fed. BOP v.
AFGE, 69 FLRA 730, 733 (2016)”), 5 n.18 (“U.S. DHS, CBP v.
NTEU, 70 FLRA 524, 528 (2018)”), 6 n.20 (“Dep’t of the Air
Force, 375th Mission Support Squadron, 67 FLRA 398, 400
(2014)”), 7 n.21 (citing same fictitious cases as id. at 5 nn.16, 18).
We note that, in addition to the errors discussed
above,49 nine more citations that the Agency provides are
entirely fictitious,50 eleven do not support the propositions
for which they are cited,51 and ten have partially incorrect
citations and do not support the propositions for which
51 Id. at 2 n.4 (citing SSA, 47 FLRA 1004, 1016-17 (1993) to
support argument “that agencies may immediately implement
government-wide rules and regulations that do not conflict with
lawful provisions of a collective[-]bargaining agreement, with
any bargaining obligation arising only after implementation,” but
the case concerns whether there was no duty to engage in
mid-term bargaining because the matter at issue was “covered
by” the parties’ agreement), 3 n.6 (citing two inapposite cases to
support argument that Arbitrator lacked authority as discussed at
note 116 below), 3 n.7 (citing U.S. DOJ, Fed. BOP, 70 FLRA
398, 400 (2018) to support recitation of essence standard, but the
case concerns a previous management-rights test), 6 n.19 (same,
regarding essence standard), 4 n.13 (citing U.S. Dep’t of the
Treasury, IRS v. FLRA, 996 F.2d 1246, 1250 (D.C. Cir. 1993)
and AFGE, Loc. 2004, 55 FLRA 6, 9 (1998) to support argument
that “arbitrators may not enforce collective[-]bargaining
provisions that conflict with law or government-wide rules,” but
those cases concern, respectively, negotiability and whether
arbitrator applied correct standard for environmental differential
pay in interpreting contract provision that incorporated federal
standard), 5 n.17 (citing NTEU v. FLRA, 848 F.2d 1273, 1276
(D.C. Cir. 1988) to support argument that “telework participation
is not an employee entitlement,” but that case concerns
probationary employees), 8 n.25 (citing U.S. Dep’t of the Army,
Letterkenny Army Depot, Chambersburg, Pa., 60 FLRA 456, 457
(2004) to support argument that the Union waived its bargaining
rights, but that case concerns an agency’s unilateral withdrawal
from negotiations), 11 n.29 (citing Dep’t of the Navy,
Marine Logistics Base, Albany, Ga, 692 F.2d 48, 59 (D.C. Cir.
1992) and Dep’t of HHS, SSA, 47 FLRA 1206, 1212 (1993) to
support its argument that it had no duty to bargain under the
“covered-by doctrine,” where those cases concern, respectively,
an earlier version of the Authority’s covered-by test and the
Authority’s abandonment of the “clear and unmistakable waiver”
standard in good-faith-bargaining ULPs).

652 Decisions of the Federal Labor Relations Authority 74 FLRA No. 87
they are cited.52 Overall, twenty-two of the exceptions
brief’s twenty-nine footnotes – and thirty-five of the
forty-two legal or record citations – are fictitious,
erroneous, or irrelevant. Based on the nature and scope of
these errors, it appears that the Agency may have used a
generative artificial-intelligence (AI) tool in drafting its
brief.53 While nothing prohibits parties from using AI
tools when preparing filings for submission to the
Authority, we caution those who do so to be aware that AI
continues to present significant risks of error.54 Therefore,
parties should take steps to verify the accuracy of any
AI-generated material and ensure that their filings satisfy
all regulatory requirements.55
Next, the Agency challenges as nonfacts: (1) the
Arbitrator’s “assumption that Article 26 prohibited the
Agency’s actions”;56 and (2) the award’s “premise that the
52 Id. at 3 n.5 (erroneous and inapposite citation as discussed
at note 116 below), 3 n.7 (incorrect opposing party, reporter
page, and pincite in “U.S. DHS, CBP v. NTEU, 70 FLRA 524,
528 (2018),” which is used to support recitation of essence
standard, but concerns a previous management-rights test), 6 n.19
(same), 5 n.15 (incorrect pincite in “U.S. Dep’t of the Air Force,
Robins AFB v. AFGE, 56 FLRA 541, 544 (2000),” which is used
to support recitation of essence standard, but concerns violation
of the Back Pay Act), 5 n.17 (incorrect excepting party in
“U.S. Dep’t of Com., PTO, 66 FLRA 235, 240 (2011),” which is
used to support the statement that “telework participation is not
an employee entitlement,” but concerns de minimis changes to
conditions of employment), 6 n.20 (incorrect petitioner in
“U.S. DHS, Border Patrol v. FLRA, 654 F.3d 91, 94-95
(D.C. Cir. 2011),” which is used to support discussion of the
repudiation standard, but concerns the covered-by doctrine),
7 n.22 (incorrect opposing party in “U.S. Dep’t of the Air Force,
Langley AFB v. AFGE, 39 FLRA 966, 969 (1991)” and incorrect
excepting party and reporter page in “U.S. Dep’t of VA,
Med. Ctr., Richmond, 63 FLRA 203, 205 (2009),” which are
used to support the claim that “an award is based on a [nonfact]
where an arbitrator’s factual finding is directly contradicted by
uncontroverted record evidence,” but the first case concerns the
refusal to arbitrate and the second denies, rather than grants, a
nonfact exception), 8 n.23 (incorrect pincite in “U.S. Dep’t of the
Treasury, IRS, 64 FLRA 426, 430 (2010),” which is used to
support the statement that “[the Authority] has recognized that an
award is based on a [nonfact] where an arbitrator assumes facts
inconsistent with the agreement and the record evidence,” but the
case denies, rather than grants, a nonfact exception), 9 n.28
(erroneous and inapposite citation as addressed in the discussion
including note 71 below).
53 See, e.g., Am. Backflow & Fire Prevention, Inc., 375 NLRB
No. 31, slip op. at 1 (2026) (Backflow) (noting possibility of AI
drafting where brief contained “citations to the hearing transcript
that [did] not exist” or did not support the party’s positions,
“decisions that [did] not stand for the propositions for which they
[were] cited and, most egregiously, . . . two purported Board
decisions that [did] not exist at all”); Matter of: Raven
Investigations & Sec. Consulting, LLC, B-423447,
2025 CPD P 81, *3 (GAO May 7, 2025) (Raven Investigations)
(in administrative appeal, noting that cases cited in AI-drafted
document “did not appear to state the principles for which the
[party] cited them” and did not “match[] the citation provided”).
Agency had a bargaining obligation” notwithstanding
Article 4.1, which “expressly provides that future
government-wide rules prevail.”57 Relatedly, the Agency
argues that the Arbitrator “ignor[ed] evidence that
Article 26 expressly permits management to suspend or
terminate telework and remote work” for “mission or
operational needs”58 – in effect, contending that the
Arbitrator should have found that the memorandum
established a mission or operational need within the
meaning of Article 26. These arguments challenge the
Arbitrator’s contractual interpretations and, as such, do not
provide a basis for finding the award is based on
nonfacts.59
The Agency also argues that the Arbitrator made
“clearly erroneous factual assumptions regarding the
enforceability of executive orders.”60 In particular, the
54 See, e.g., Raven Investigations, 2025 CPD P 81 at *3 (“To the
extent the [party] used AI tools to help draft its responses . . .
without engaging in any review of the material for accuracy –
resulting in the irregularities discussed above – that practice
wastes the time of all parties and GAO, and is at odds with the
[GAO’s] statutory mandate”); Common Instructions for
Applicants to Department of Education Discretionary Grant
Programs, 89 Fed. Reg. 104528, 104259 (Dec. 23, 2024) (“[I]t
should be noted that the use of AI may introduce significant risks
(such as . . . inaccuracy, falsification, and plagiarism), and
applicants and grantees are responsible for ensuring the integrity
of application materials.”); see also Backflow, 375 NLRB
No. 31, slip op. at 2 (finding that “[g]host citations purporting to
be Board decisions and citations that do not stand for the
proposition asserted . . . invoke the authority of the Board for
propositions that it did not endorse” and “can demonstrate a party
representative’s apparent disregard for the Board’s processes”).
55 See, e.g., Guidance on Use of Artificial Intelligence-Based
Tools in Practice Before the United States Patent and Trademark
Office, 89 Fed. Reg. 25609, 25614-15 (Apr. 11, 2024) (providing
guidance on how to follow filing rules when drafting documents
using AI, including reviewing and correcting AI-generated text);
Backflow, 375 NLRB No. 31, slip op. at 1 (finding that “it is a
foundational duty of practitioners before the Board – regardless
of whether the individual is an attorney or a non-attorney
representative – to ensure that their submissions do not contain
fabricated citations or inaccurate references[,] . . . whether or not
the filer relies on [AI] tools”).
56 Exceptions at 8.
57 Id. at 10-11.
58 Id. at 8.
59 See CBP, 74 FLRA at 409 (denying nonfact exception
“primarily concerned with challenging the [a]rbitrator’s
interpretation” of the parties’ agreement); Council 222, 73 FLRA
at 55 (same).
60 Exceptions at 9-10.

74 FLRA No. 87 Decisions of the Federal Labor Relations Authority 653
Agency disputes the Arbitrator’s finding that “executive
orders were required to be treated as regulations for
purposes of 5 U.S.C. [§] 7116(a)(7),” thus becoming
enforceable only upon the expiration of the parties’
agreement.61 The Agency also questions the Arbitrator’s
“unexplained reliance” on VA in reaching this
conclusion.62 However, the Authority has explained that
an arbitrator’s interpretation of Authority precedent is a
question of law, which cannot be challenged as a nonfact.63
In addition, the Agency bases its argument on the
Arbitrator’s “reli[ance] on purported [Office of Personnel
Management (OPM)] guidance”64 and his alleged failure
to “acknowledge or address Articles 2 and 4” of the
parties’ agreement.65 These arguments challenge the
Arbitrator’s legal analysis and his interpretation of the
parties’ agreement, respectively. Therefore, they do not
provide a basis for finding that the award is based on a
nonfact.66
Finally, according to the Agency, the Arbitrator
based his award on “an [i]napplicable [c]ase,”67
specifically 438th Air Base Group (MAC), McGuire Air
Force Base, New Jersey.68 However, the Arbitrator’s only
mention of that decision was in setting out the Union’s
arguments; he did not rely on it in his findings.69 Further,
the Agency argues that the Authority has sustained nonfact
exceptions “where arbitrators rely on inapposite precedent
. . . resulting in erroneous factual conclusions”70 – and
cites, for support, the Authority’s decision in
U.S. Department of the Navy, Naval Undersea Warfare
Center, Newport, Rhode Island (Navy).71 In Navy, the
Authority denied a nonfact exception challenging an
arbitrator’s legal analysis. Therefore, Navy does not
support the Agency’s argument.72 Because this portion of
the exception misunderstands the award – and challenges
a legal conclusion – it does not demonstrate that the award
is based on a nonfact.73
61 Id. at 9.
62 Id. at 10.
63 AFGE, Loc. 3652, 68 FLRA 394, 398 (2015) (citing GSA,
Region 9, L.A., Cal., 56 FLRA 683, 685 (2000)); see also
Council 222, 73 FLRA at 55; AFGE, Loc. 3954, 73 FLRA 39,
41 (2022) (Local 3954) (finding arbitrator’s legal conclusion
provided “no basis for finding the award deficient”).
64 See Award at 52 (when discussing VA, stating that “the
guidance from [OPM] at that time,” i.e., 2021, was to treat the
relevant executive order “as a regulation for purposes of
[§] 7116(a)(7)”).
65 Exceptions at 9.
66 See Local 3954, 73 FLRA at 41 (legal conclusion); CBP,
74 FLRA at 409 (contractual interpretation).
67 Exceptions at 9.
68 28 FLRA 1112 (1987).
69 Award at 33 (describing Union’s position).
70 Exceptions at 9.
For the foregoing reasons, we deny the Agency’s
nonfact exception.
B. The Agency does not demonstrate that
the award fails to draw its essence from
the parties’ agreement.
The Agency argues that the award fails to draw
its essence from the parties’ agreement.74 The Authority
will find that an arbitration award fails to draw its essence
from a collective-bargaining agreement when the
appealing party establishes that the award: (1) cannot in
any rational way be derived from the agreement; (2) is so
unfounded in reason and fact and so unconnected with the
wording and purposes of the agreement as to manifest an
infidelity to the obligation of the arbitrator; (3) does not
represent a plausible interpretation of the agreement; or
(4) evidences a manifest disregard of the agreement.75
Mere disagreement with an arbitrator’s interpretation and
application of an agreement does not provide a basis for
finding that an award fails to draw its essence from an
agreement.76 Nor do arguments that are based on a
misunderstanding of an award.77
The Arbitrator found that the Agency’s
immediate implementation of the memorandum violated
Article 26, because both the Statute and Article 4 prohibit
the enforcement of government-wide rules and regulations
promulgated after the effective date of the parties’
agreement if those rules and regulations conflict with the
agreement.78 The Agency argues that this finding nullifies
Article 2, Section 4 of the parties’ agreement
(Article 2.4).79 Article 2.4 states: “In the event that any
provisions of the [parties’ a]greement shall at any time be
found, declared, or made invalid . . . by operation of any
law, government-wide rule or regulation, or decree, or
Executive Order, the entire [a]greement will not be
71 55 FLRA 687 (1999); see Exceptions at 9 n.28 (erroneously
citing “U.S. Dep’t of the Navy, Portsmouth Naval Shipyard,
55 FLRA 687, 691 (1999),” which has an incorrectly identified
excepting party and pincite, and denies, rather than grants, a
nonfact exception).
72 Navy, 55 FLRA at 692.
73 See Local 3601, 73 FLRA at 517-18 (denying nonfact
exception that “misunderstands the award”); Navy, 55 FLRA
at 692 (denying nonfact exception challenging arbitrator’s legal
conclusion).
74 Exceptions at 3-7.
75 U.S. Dep’t of Transp., FAA, 74 FLRA 335, 338 (2026) (FAA)
(citing U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Mendota, Cal.,
73 FLRA 788, 789 (2024)).
76 Id. at 338-39 (citing AFGE, Loc. 2369, 73 FLRA 772, 773
(2023)).
77 U.S. DOJ, Fed. BOP, U.S. Penitentiary McCreary,
Pine Knot, Ky., 73 FLRA 865, 866 (2024) (BOP Pine Knot)
(citing SSA, 73 FLRA 708, 713 (2023)).
78 Award at 51-53.
79 Exceptions at 4-5.

654 Decisions of the Federal Labor Relations Authority 74 FLRA No. 87
invalidated.”80 Although the Arbitrator noted the
Agency’s views on the immediate legal effect of the
memorandum,81 he did not find that the memorandum
invalidated Article 26, or any other part of the parties’
agreement. Further, the Agency provides no basis for
concluding that the parties’ agreement compelled the
Arbitrator to make such a finding.82 The Agency’s
argument provides no basis for finding that the award is
irrational, unfounded, implausible, or in manifest
disregard of the parties’ agreement.83
The Agency also argues that the award nullifies
Article 4.2B. According to the Agency, Article 4.2B
“expressly authorizes the [e]mployer to immediately
implement a government-wide rule when required by
law.”84 However, the Arbitrator found that the
memorandum states that it “shall be implemented
consistent with applicable law”85 and that § 7116(a)(7)
was applicable law prohibiting the memorandum’s
implementation because the memorandum conflicts with
Article 26.86 Therefore, he concluded that Article 4.2B did
not apply because the memorandum does not, under the
circumstances in this case, legally require
“implement[ation] immediately upon issuance”87 – a
determination that the Agency does not challenge as
contrary to law.88 Thus, the Agency does not show that the
award ignored or rendered meaningless Article 4.2B.89
Further, although the Agency asserts that the Arbitrator
failed to “meaningfully address” its arguments concerning
Articles 2 and 4, the Arbitrator fully addressed those
80 CBA at 24.
81 See Award at 21-23 (Agency witnesses’ testimony that the
memorandum took precedence over Article 26); id. at 46
(Agency argument for relying on Article 2.4 to implement
memorandum immediately).
82 See NTEU, Chapter 105, 74 FLRA 257, 259-60 (2025)
(Chapter 105) (denying essence exception where party did “not
cite any contract wording that required” its preferred contractual
interpretation).
83 See USDA, Food & Nutrition Serv., 73 FLRA 822, 824 (2024)
(denying exception that “merely disagree[d] with the
[a]rbitrator’s interpretation”).
84 Exceptions at 4-5.
85 Award at 51.
86 Id. at 51-52.
87 Id. at 53.
88 To the extent that the Agency argues the Arbitrator’s
interpretation of Articles 26, 2.4, or 4.2B violated the
memorandum and related OPM guidance, Exceptions at 4-5, the
Agency also provides no basis for finding that either authority
“invalid[ated]” any provision of the parties’ agreement or
required immediate implementation of the memorandum without
regard for the parties’ agreement. CBA at 24; see also U.S. Dep’t
of the Treasury, BEP, 74 FLRA 530, 533 (2026)
(Member Arrington dissenting on other grounds) (noting that the
memorandum and OPM guidance state that they must be
“implemented consistent with applicable law” and are subject to
“any collective[-]bargaining obligations” and, thus, do not
excuse parties from complying with their collective-bargaining
arguments – and the Agency provides no basis for
concluding that the Arbitrator failed to do so in a
“meaningful[]” way.90 Therefore, this assertion lacks
merit.
Additionally, the Agency argues that the
Arbitrator’s finding of an Article 26 violation91 “failed to
give effect” to Article 26.8, Section A1(d), which allows
the Agency to terminate an employee’s telework
participation for “[o]rganizational exigencies,” in addition
to other reasons listed in Article 26.8, Section A1.92 The
Agency argues that such exigencies include the diminished
performance and increased supervision and training
difficulties that allegedly result from “unrestricted
telework and remote work.”93 The Arbitrator noted the
Agency’s interpretation of Article 26.8,94 but found that
the Agency terminated telework and remote-work
agreements because of the memorandum, not for the
reasons cited by the Agency.95 As such, he found the
terminations were not “in accordance with the listed
criteria” in Article 26.8.96 The Agency provides no basis
for concluding that the Arbitrator was required to find that
the memorandum constituted an “organizational
exigenc[y]” within the meaning of Article 26.97 Thus, the
Agency’s argument does not establish that the award is
irrational, unfounded, implausible, or in manifest
disregard of Article 26.98
As part of its Article 26 arguments, the Agency
asserts that “provisions . . . that conflict with management
agreements (quoting Presidential Memorandum, 90 Fed. Reg.
at 8251, and OPM, Guidance on Presidential Memorandum
Return to In-Person Work 3 (2025) (OPM Guidance 2025),
https://www.opm.gov/chcoc/latest-memos/guidance-on-
presidential-memorandum-return-to-in-person-work.pdf) (on
file with the Federal Labor Relations Authority (FLRA)).
89 See Fed. Educ. Ass’n, Stateside Region, 73 FLRA 747, 750
(2023) (denying essence exception where party did “not argue
that underlying legal conclusion [wa]s contrary to law”).
90 Exceptions at 5.
91 Award at 52-53.
92 Exceptions at 3-4 (quoting CBA at 32).
93 Id. at 4 (generally citing OPM, Guidance on Collective
Bargaining Obligations in Connection with Return to In-Person
Work (2025), https://www.opm.gov/media/ckjioszr/guidance-
on-collective-bargaining-obligations-in-connection-with-return-
to-office-2-3-25-final-1.pdf (on file with the FLRA)).
94 See, e.g., Award at 47, 50 (noting the Agency’s arguments that
the memorandum, “issued to improve efficiency, service
delivery, and accountability across the federal workforce,” was
an “organizational exigenc[y]”).
95 See id. at 53.
96 See id.
97 See Chapter 105, 74 FLRA at 259-60.
98 See AFGE, 63 FLRA 627, 629 (2009) (denying essence
exception where “nothing . . . in the parties’ agreement or the
record establishe[d] that the [a]rbitrator was required to find, as
a matter of contractual interpretation,” that the party’s preferred
interpretation was correct).

74 FLRA No. 87 Decisions of the Federal Labor Relations Authority 655
rights are unlawful and unenforceable.”99 In this regard,
the Agency states that “telework participation . . . remains
subject to management discretion consistent with”
§ 7106(a) of the Statute.100 However, the Agency does not
identify the management right allegedly affected, or
explain how the award affects it.101 Therefore, to the
extent the Agency is raising a contrary-to-law exception,
we reject it as unsupported.102
In a related argument, the Agency asserts that the
Arbitrator disregarded a provision of Article 26 that gives
supervisors authority over telework participation, and that
he thereby “imposed limitations on management rights
that are neither stated nor implied in the agreement.”103
However, the Arbitrator neither disregarded nor added
requirements to Article 26; he merely found that the
Agency could terminate telework and remote-work
agreements “only ‘for cause’ and in accordance with the
. . . criteria” listed in Article 26, which did not include
implementation of the memorandum.104 Therefore, the
Agency’s argument lacks merit.105
The Agency also argues that the award fails to
draw its essence from the procedural requirements of
Article 46 of the parties’ agreement106 because the
Arbitrator relied on the Telework Act, despite the Union’s
failure to raise it in the grievance.107 However, as noted
above, the Arbitrator explicitly found that the Union could
not rely on the Telework Act,108 and he rejected the
Union’s claim based on it.109 Therefore, the Agency’s
argument misunderstands the award, and we reject it on
that basis.110
99 Exceptions at 4 (citing U.S. DHS, U.S. ICE, 70 FLRA, 628,
630 (2018) (Member DuBester dissenting); OPM Guidance
2025).
100 Id. at 5.
101 See AFGE, Loc. 153, 73 FLRA 792, 793 (2024) (denying
contrary-to-law exception as unsupported where excepting party
cited § 7106 but did not explain how the award conflicted with
that provision); Consumer Fin. Prot. Bureau, 73 FLRA 670, 681
(2023) (setting forth the test for analyzing management-rights
exceptions and explaining that an excepting party must first
demonstrate that an award affects a management right).
102 We note that, as with many other cites, the cases offered in
support of these arguments are either inapposite or fictitious.
See Exceptions at 4-5 & nn.13, 17, 18; see also notes 50-52
above.
103 See Exceptions at 5. The Agency erroneously cites to
“Article 26, Subsection 1[E],” id., which concerns using
telework for dependent care. CBA at 136. The Union suggests
that the Agency intended to reference Article 26, Section 3C,
which states that supervisors retain “‘the authority to review,
determine, and approve participation’ in the telework program.”
Opp’n Br. at 23 n.4 (quoting CBA at 140).
104 Award at 53.
105 See U.S. Dep’t of VA, John J. Pershing Veterans’ Admin. Ctr.,
Poplar Bluff, Mo., 73 FLRA 842, 843 (2024) (denying essence
Finally, the Agency asserts that the Arbitrator’s
“repudiation finding is legally deficient” because it is
based on the Arbitrator’s disregard of Articles 2, 4, and
26.111 As we have already rejected the Agency’s claims
that the Arbitrator disregarded those articles, this Agency
assertion provides no basis for finding the award
deficient.112
In short, the Agency’s arguments do not
demonstrate that the award is irrational, unfounded,
implausible, or in manifest disregard of the parties’
agreement. Therefore, we deny the essence exception.113
C. The Agency does not demonstrate that
the Arbitrator exceeded his authority.
The Agency argues that the Arbitrator exceeded
his authority in two respects.114 Arbitrators exceed their
authority when they fail to resolve an issue submitted to
arbitration, resolve an issue not submitted to arbitration,
disregard specific limitations on their authority, or award
relief to persons who are not encompassed by the
grievance.115
First, the Agency asserts that “[a]rbitrators lack
authority to override or invalidate actions taken pursuant
to the President’s constitutional responsibilities.”116 The
Agency also argues that challenges to executive orders and
presidential memoranda fall within “federal” jurisdiction,
and therefore, arbitrators “exceed their authority when
exception where arbitrator “was interpreting, not adding to, the
parties’ agreement”).
106 CBA at 249 (“Issues not raised by the [p]arties during the
grievance procedure may not be raised by either [p]arty or the
[a]rbitrator during arbitration.”).
107 Exceptions at 6.
108 Award at 51 n.11.
109 Id. at 2.
110 See BOP Pine Knot, 73 FLRA at 866 (denying exception
based on misapplication of statutory deadline as
misunderstanding where arbitrator did not apply that deadline).
111 Exceptions at 5-6.
112 See, e.g., NTEU, 63 FLRA 70, 74 (2009) (rejecting challenge
to repudiation finding where essence arguments on which it was
based were also rejected).
113 Fort Huachuca, 74 FLRA at 321.
114 Exceptions at 2-3, 10-11.
115 U.S. DHS, U.S. CBP, 74 FLRA 6, 8 (2024) (citing AFGE,
Loc. 2258, 70 FLRA 210, 213 (2017)).
116 Exceptions at 3 & n.5 (erroneously citing “AFGE, Local 2921,
50 FLRA 184, 187-88 (1995) (arbitrators may not enforce
contract provisions that conflict with law or higher-level
authority),” which has an incorrect pincite and explanatory
parenthetical, where the case ends on page 186 and concerns
procedural arbitrability).

656 Decisions of the Federal Labor Relations Authority 74 FLRA No. 87
they purport to nullify, disregard, or limit application of
presidential directives.”117
The Arbitrator noted that the President explicitly
directed that the memorandum be “implemented
consistent with applicable law.”118 The Arbitrator
determined that one such law – § 7116(a)(7) of the Statute
– requires that the Agency not “enforce any rule or
regulation . . . which is in conflict with any applicable
collective[-]bargaining agreement if the agreement was in
effect before the rule or regulation was prescribed.”119 The
Arbitrator concluded that, because the memorandum is a
“rule or regulation” that conflicts with Article 26, the
Agency should not have implemented it until the parties’
agreement expired.120 The Agency does not explain how
these findings disregarded the terms of the memorandum
or any limitations that the memorandum placed on the
Arbitrator.121 Moreover, as discussed previously, the
Agency does not assert that the Arbitrator’s interpretation
of the memorandum is contrary to law. Accordingly, the
Agency’s arguments provide no basis for finding that the
Arbitrator exceeded his authority.
Second, within the context of its nonfact
exception, the Agency asserts that the “Arbitrator did not
resolve the Agency’s covered-by argument”122 –
specifically, its claim that it had no bargaining obligation
concerning the memorandum’s implementation because
Article 4.1 “expressly provides that future
government-wide rules prevail” over conflicting contract
language.123 Although the Agency’s assertion is sufficient
to raise an exceeded-authority argument,124 we reject it.
The Arbitrator did not frame any issues, but noted that the
Agency submitted as issues whether its implementation of
the memorandum violated the parties’ agreement or
§ 7116(a)(1), (5), (7), and (8) of the Statute. In resolving
these issues, the Arbitrator rejected the Agency’s contract
interpretation by finding that Article 4.1 “prohibits the
117 Id. at 3 & n.6 (erroneously citing AFGE v. Trump, 929 F.3d
748, 754-56 (D.C. Cir. 2019) and NTEU v. FLRA, 392 F.3d 498,
500-01 (D.C. Cir. 2004) concerning, respectively, district courts’
lack of jurisdiction under the Statute and the limitation period for
filing a certain type of ULP charge).
118 Award at 51 (quoting Presidential Memorandum, 90 Fed. Reg.
at 8251).
119 Id. (quoting 5 U.S.C. § 7116(a)(7)).
120 Id. at 52-53.
121 See FAA, 74 FLRA at 342 (denying exceeded-authority
exception where party did “not identify” any contractual or legal
limitation on the arbitrator’s authority).
122 Exceptions at 10.
123 Id. Based on context, we presume that the Agency’s reference
to “Article 1” was intended to be Article 4.1. See id. at 9-10.
124 See, e.g., AFGE, Loc. 3627, 65 FLRA 1049, 1050 (2011) (“In
arguing that the [a]rbitrator failed to resolve the issues submitted
to him in arbitration, the [party] has raised a ground recognized
by the Authority – that the [a]rbitrator exceeded his authority.”).
enforcement of any rule or regulation published after the
effective date of the [parties’ agreement] that conflicts
with the terms of the [a]greement.”125 As discussed above,
he further found that, because the memorandum conflicts
with Article 26, § 7116(a)(7) prevented the Agency’s
implementation of the memorandum.126 Thus, the
Arbitrator’s conclusion that the Agency could not lawfully
implement the memorandum resolved the issues submitted
to arbitration,127 and obviated any need to specifically
address the Agency’s argument that it had no duty to
bargain over the memorandum’s implementation.128 For
these reasons, this argument provides no basis for finding
that the Arbitrator exceeded his authority.129
Therefore, we find that the Agency’s arguments
do not demonstrate that the Arbitrator exceeded his
authority, and we deny the exceeded-authority exception.
IV. Decision
We deny the Agency’s exceptions.
125 Award at 52 (emphasis added); see, e.g., U.S. Dep’t of the
Navy, Naval Undersea Warfare Ctr. Div., Keyport, Wash.,
55 FLRA 884, 886 (1999) (Member Cabaniss dissenting in part
on other grounds) (rejecting exceeded-authority exception based
on differing contract interpretation (citing AFGE, Loc. 1546,
52 FLRA 94, 98 (1996))).
126 Award at 52-53.
127 See NFFE, Loc. 1998, 73 FLRA 143, 144-45 (2022) (finding
award was not deficient where arbitrator resolved the issue
submitted to arbitration).
128 AFGE, Council 236, 58 FLRA 582, 583 (2003) (rejecting
exceeded-authority exception where arbitrator’s resolution of
submitted issue made it unnecessary to address another issue
(citing AFGE, Loc.1749, 58 FLRA 459, 461 (2003))); see also
Local 3601, 73 FLRA at 517 (rejecting exceeded-authority
argument that arbitrator “did not ‘sufficiently address’” the issues
(citing AFGE, Loc. 3911, 64 FLRA 686, 687 (2010))).
129 See NTEU, Chapter 172, 74 FLRA 80, 83-84 (2024) (denying
exceeded-authority exception where arbitrator resolved all
submitted issues).