Court of Appeals Throws Out Discovery of “Unwritten Contractual Right”

A Court of Appeals has upheld a decision by the FLRA in a long-simmering dispute involving AFGE and the Bureau of Prisons.

The Court of Appeals for the District of Columbia has issued a decision upholding a decision of the Federal Labor Relations Authority (FLRA) and the American Federation of Government Employees (AFGE Local 3690 v. FLRA, No. 20-1183 (July 2, 2021) ).

The issue in the case involved a decision by Arbitrator Dennis J. Campagna involving the assignment of work. The union in a Federal Correctional Institution (FCI Miami) filed a grievance contending the agency was using non-custody employees to fill in at short-staffed custody posts to avoid paying overtime to custody employees.

Arbitrator Finds “Unwritten Contractual Right” in Labor Agreement

The arbitrator concluded there was an “unwritten contractual right” in the parties’ Collective Bargaining Agreement (CBA). He made this decision based on his conclusion the agency had a practice of not using non-custody employees for custody employee jobs prior to 2016. 

Based on this discovery, the arbitrator ruled in favor of the union. The agency filed exceptions to the arbitrator’s decision with the FLRA. The FLRA concluded the arbitrator’s discovery of an “unwritten contractual right” in the contract was in error and overturned the award to the union. The FLRA decided the arbitrator had ignored the clear language of Article 18 of the labor agreement. This article gave the Agency broad discretion to assign and reassign employees. In effect, the FLRA determined the agency’s action in assigning employees was within its right under the agreement and the labor relations statute.

Dissatisfied with the FLRA’s ruling, AFGE 3690 took the case to court.

Limitation on Appeal Rights Upheld by Court of Appeals

The Court observed the union had an option of filing a grievance under the labor contract or filing an unfair labor practice (ULP) allegation with the FLRA. In this case, the union opted to file a grievance that went to arbitration.

When an arbitrator issues a decision, the decision can be appealed to the FLRA. The FLRA decision can be appealed to a court. The catch is that the court’s review of an FLRA decision is limited to a review involving an unfair labor practice. Moreover, concluded the Court in this case, a “mere passing reference to an unfair labor practice will not suffice.”

Union Bound by Its Previous Arguments

AFGE argued the FLRA decision involved an unfair labor practice because it “necessarily implies” an unfair labor practice.

In effect, the Court concluded the union made a worthy effort of trying to change its characterization of the case but that effort does not work. Instead, wrote the Court, “the …award does not once mention an unfair labor practice and none of the listed issues in the award, set forth with AFGE’s agreement, mentions or pertains to a statutory unfair labor practice. 

In other words, the union must now live by the consequences of its previous decisions and actions. The union “cannot be permitted at this late stage to transform its grievance claim into a statutory claim.”


While the union was successful in having its most recent case heard in three different venues involving the Federal Correctional Institution in Miami (FCI Miami) over a long period of time, this presumably ends this step in the long saga involving this issue.

As noted by the FLRA in its decision: “This case represents another chapter in a long saga of disputes in which the union representing employees of the Bureau of Prisons has sought to limit the Agency’s discretion to reassign employees….”

Of course, nothing prevents the union from making the same arguments involving a similar case and taking another run and trying to change the case law. By the time the case gets to the FLRA, there will likely be different members under a new administration with a new labor relations philosophy and the process can start over again and the union may receive a different decision.

For now, the issue is resolved and FCI Miami can continue making the assignment of work as it has for the past few years.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47