73 FLRA No. 164 Decisions of the Federal Labor Relations Authority 835

73 FLRA No. 164 

UNITED STATES

DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL COMPLEX

VICTORVILLE, CALIFORNIA

(Agency)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 3969

COUNCIL OF PRISON LOCALS #33

(Union)

0-AR-5894

_____

DECISION

March 22, 2024

____

Before the Authority: Susan Tsui Grundmann, Chairman,

and Colleen Duffy Kiko, Member

I. Statement of the Case

Arbitrator Gerald R. Burke issued an award 

finding the Agency erroneously denied nineteen overtime 

opportunities to a correctional officer (the grievant). The 

Agency filed exceptions to the award on nonfact and 

exceeded-authority grounds. Because the Agency does 

not demonstrate that the award is deficient, we deny the 

exceptions.

II. Background and Arbitrator’s Award

The grievant has a medical condition that would 

put his health at increased risk if he were exposed to 

COVID-19. Accordingly, the Agency assigned the 

grievant to a patrol assignment as a temporary job 

modification. In that assignment, the grievant retained his 

eligibility to work overtime hours and worked posts 

patrolling the perimeter of each institution (perimeter 

patrol) and patrolling the entire complex between the 

institutions (complex patrol).1

 Beginning in January 2022, 

1 See Award at 2-3 (referencing Union Ex. 2); see also Opp’n, 

Union Ex. 2 (listing grievant’s daily assignments as “PRM 

patrol #1”, “PRM patrol #2”, and “complex patrol”). 2 Opp’n, Joint Ex. 2 (Complete Grievance) at 1. 3 Id. at 4; Exceptions, Attach. D, Grievance (Grievance Form) 

at 1; see Award at 5. 4 Grievance Form at 1.

the Union alerted management to its concern that the 

Agency was improperly depriving the grievant of 

opportunities to work overtime in his modified 

assignment.2

 When attempts at informal resolution failed, 

the Union filed a grievance on February 16, 2022, alleging 

that the Agency “regularly” skipped the grievant when 

offering overtime assignments.3

 In its grievance, the 

Union alleged various specific “[d]ate(s) of violation(s)” 

in January and February 2022, and “[c]ontinuous and 

ongoing” violations.4

 In an April 2022 memorandum to 

the Agency invoking arbitration, the Union reiterated that 

it was alleging violations of law, Agency policy, and the 

parties’ agreement, occurring on the previously identified 

dates in January and February 2022 and “[c]ontinuous and 

ongoing.”5

 

In February 2023, the grievance advanced to 

arbitration, where the parties did not stipulate an issue. 

The Arbitrator framed the issues as: “Did the Agency fail 

to offer overtime as alleged in [the grievance]? If so, what 

is the appropriate remedy?”6

 

At arbitration, the Union alleged that the Agency 

erroneously deprived the grievant of multiple overtime 

opportunities,7 many of which took place after the Union 

filed the initial grievance (post-filing violations). The 

Agency argued the Union could not allege post-filing 

violations and that the scope of the grievance was limited 

to the specific dates expressly referenced on the grievance 

form. For support, the Agency cited Article 32 of the 

parties’ agreement (Article 32), which provides, in 

relevant part, that “the issues, the alleged violations, and 

the remedy requested in the written grievance may be 

modified only by mutual agreement.”8

 The Arbitrator 

rejected the Agency’s argument, finding the grievance 

“specified that the Union was raising not only the specific 

dates in the grievance but also the ‘ongoing’ violations.”9

 

On this basis, the Arbitrator considered both the dates 

referenced in the grievance and the alleged post-filing 

violations. 

The Arbitrator considered various Union 

exhibits, including overtime logs and the grievant’s 

cell-phone records, in order to determine whether the 

Agency offered the grievant overtime assignments for 

which he was qualified. In summarizing the grievance’s 

allegations, the Arbitrator noted the Union’s accusation 

that managers had justified skipping the grievant for 

overtime assignments by erroneously claiming the 

5 Complete Grievance at 5-6; see also Award at 6 (discussing 

memorandum).

6 Award at 1.

7 Id. at 2. 8 Exceptions, Attach. C, Parties’ Collective-Bargaining 

Agreement (CBA) at 75. 9 Award at 5.
836 Decisions of the Federal Labor Relations Authority 73 FLRA No. 164

grievant was “not qualified to work perimeter patrols.”10 

Specifically, the grievance alleged that managers were 

“fraudulently documenting that [the grievant] is not 

qualified to work perimeter patrols even though this is his 

daily post.”11 

Based on discrepancies between the dates on 

which the Agency alleged it offered overtime to the 

grievant and the grievant’s cell-phone records, the 

Arbitrator concluded the Agency had not offered overtime 

on all of the dates it claimed. The Arbitrator also found 

that on two instances, the Agency erroneously failed to 

offer the grievant overtime based on nonexistent shift 

conflicts.

Upon concluding the grievant was “not offered 

and should have been offered overtime assignments,”12 the 

Arbitrator sustained the grievance, and awarded backpay 

for nineteen overtime assignments between the dates of 

January 15, 2022 and February 18, 2023.

On June 7, 2023, the Agency filed exceptions to 

the award. On July 6, 2023, the Union filed an opposition 

to the Agency’s exceptions.

III. Analysis and Conclusions

A. The award is not based on a nonfact.

The Agency argues the award is based on a 

nonfact because the Arbitrator misstated the Agency’s 

arguments.13 To establish that an award is based on a 

nonfact, the excepting party must show that a central fact 

underlying the award is clearly erroneous, but for which 

the arbitrator would have reached a different result.14 

Arguments based on a misunderstanding of an award do 

not provide a basis for finding an award deficient on 

nonfact grounds.15 

The Agency contends the Arbitrator awarded the 

grievant overtime for January 15, 2022, based on his 

10 Id. at 6 (stating that “[t]he agency argued that the applicant was 

not qualified to work perimeter patrols but the record clearly 

shows that he was qualified and the agency acknowledged this” 

in a paragraph summarizing grievance’s allegations).

11 Complete Grievance at 4. 12 Award at 7. 13 Exceptions Br. at 12-15. 14 AFGE, Loc. 3601, 73 FLRA 515, 517 (2023) (citing U.S. DHS, 

U.S. CBP, 71 FLRA 243, 245 (2019) (Member Abbott 

concurring on other grounds)).

15 Bremerton Metal Trades Council, 73 FLRA 212, 213 (2022) 

(Bremerton) (citation omitted). 16 Exceptions Br. at 13 (quoting Award at 6) (emphasis omitted). 17 Id. at 13-14. 18 Award at 2 (describing Agency’s position); see also id. at 5 

(finding Agency placed grievant in perimeter-patrol 

assignments). 

rejection of a purported Agency argument that the grievant 

“was not qualified to work perimeter patrols.”16 

According to the Agency, its actual argument was that the 

grievant was permitted to work perimeter-patrol 

assignments, but no such assignments were available on 

that date.17

The Arbitrator accurately recounted the Agency’s 

position that it had “placed [the grievant] in 

perimeter[-]patrol” assignments as a job modification and 

he was “not deprived of perimeter[-]patrol overtime 

assignments.”18 The Arbitrator made the challenged 

statement when discussing the grievance’s allegations.19 

Specifically, the Arbitrator was referencing the 

grievance’s accusation that managers had falsified 

overtime logs by stating the grievant was “not qualified to 

work perimeter patrols.”20 Thus, when the Arbitrator 

made the challenged statement, he was summarizing a 

grievance allegation, not misrepresenting an Agency 

argument. Because the Agency’s nonfact argument is 

based on a misunderstanding of the award, it does not 

establish that the award is deficient.21

We deny the Agency’s nonfact exception.

B. The Agency does not demonstrate that 

the Arbitrator exceeded his authority.

The Agency argues the Arbitrator exceeded his 

authority.22 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 those not 

encompassed within the grievance.23 Where the parties do 

not stipulate the issue for resolution, arbitrators may 

formulate the issue on the basis of the subject matter before 

them, and the Authority accords substantial deference to 

19 Id. at 6 (discussing grievance); see Complete Grievance at 1. 20 Complete Grievance at 1. 21 Bremerton, 73 FLRA at 213; AFGE, Loc. 3601, 73 FLRA 515, 

518 (2023) (denying nonfact exception based on a 

misunderstanding of the award (citing AFGE, Council of Prison 

Locs. #33, Loc. 0922, 69 FLRA 351, 353 (2016))); see also

AFGE, Loc. 1395, 64 FLRA 622, 626 (2010) (denying nonfact 

exception based on argument the arbitrator had misstated the 

excepting party’s position where arbitrator correctly stated 

position (citing NFFE, Loc. 1636, 45 FLRA 1045, 1047-48 

(1992))).

22 Exceptions Br. at 5-12. 23 USDA, Food Safety & Inspection Serv., 73 FLRA 683, 684 

(2023) (USDA) (citing NFFE, Loc. 1998, 73 FLRA 143, 144 

(2022); U.S. Dep’t of VA, Montgomery Reg’l Off., Montgomery, 

Ala., 65 FLRA 487, 490 (2011)).
73 FLRA No. 164 Decisions of the Federal Labor Relations Authority 837

that formulation.24 The Authority has held that arbitrators 

do not exceed their authority where the award is directly 

responsive to the formulated issues.25 In formulating and 

resolving the issues before them, arbitrators may rely on 

the arguments that the parties raise in the proceeding.26 

Additionally, in assessing whether arbitrators have 

exceeded their authority, the Authority grants arbitrators 

broad discretion to fashion remedies that they consider 

appropriate.27

The Agency contends the Arbitrator framed the 

issues before him to limit the dates of liability to the 

specific dates listed in the grievance,28 and went beyond 

the framed issues when he addressed the alleged 

post-filing violations.29 The Agency also contends that, by 

considering those allegations, the Arbitrator modified the 

grievance’s terms30 and “disregard[ed]” limitations on his 

authority imposed by Article 32.31 As noted above, 

Article 32 requires “mutual agreement” to modify the 

“issues, the alleged violations, and the remedy requested 

in the written grievance.”32 The Agency argues it did not 

agree to modify the grievance to include the alleged 

post-filing violations.33 The Agency also cites another 

provision in Article 32, which states that the Arbitrator 

“shall have no power to add to, subtract from, disregard, 

alter, or modify any of the terms of . . . [the parties’ 

a]greement.”34

Further, the Agency argues the Arbitrator 

exceeded his authority by finding post-filing violations 

because the Union did not cite a contract provision to 

support such claims.35 The Agency asserts the parties’ 

agreement is “void of any language” permitting the 

Arbitrator to find ongoing post-filing violations because 

24 Id. at 684-85 (citing U.S. Dep’t of the Navy, Naval Med. Ctr. 

Camp Lejeune, Jacksonville, N.C., 73 FLRA 137, 141 (2022) 

(Navy)); see also AFGE, Loc. 522, 66 FLRA 560, 562 (2012) 

(“where there is no stipulation, that an arbitrator’s formulation of 

an issue differs from the issues alleged in the grievance does not 

provide a basis for finding that the arbitrator exceeded his or her 

authority” (citing AFGE, Loc. 1547, 59 FLRA 149, 150-51 

(2003))).

25 USDA, 73 FLRA at 685 (citing Navy, 73 FLRA at 141). 26 U.S. DOJ, Fed. BOP, Metro. Det. Ctr., Guaynabo, P.R., 

68 FLRA 960, 966 (2015) (BOP Guaynabo) (“The law is clear 

. . . that, in formulating and resolving the issues before them, 

arbitrators may rely on the arguments that the parties raise in the 

proceeding” (citing U.S. Dep’t of HHS, SSA, Off. of Hearings & 

Appeals, 48 FLRA 833, 838 (1993)). 27 USDA, 73 FLRA at 685 (citing Navy, 73 FLRA at 141). 28 Exceptions Br. at 6-7. 29 Id. at 9-10. 30 Id. at 6. 31 Id. at 7. 32 CBA at 75. 33 Exceptions Br. at 7. 34 Id. at 8 (quoting CBA at 77). 35 Id. at 10-11.

there was only a “single alleged grievable event” on 

January 15, 2022.36 

In relevant part, the Arbitrator framed the issue as 

whether the Agency failed to offer overtime “as alleged in 

[the grievance].”37 As the Agency acknowledges, the 

grievance alleged the Agency denied the grievant overtime 

opportunities on specific dates and on a “[c]ontinuous and 

ongoing” basis.38 The Agency attempts to diminish the 

importance of that grievance wording by asserting that 

“the continuous and ongoing language is boilerplate and is 

language that is typically included in all the Union’s 

grievances.”39 However, the Agency does not explain why 

the Union’s frequent use of these terms would mean that 

the grievance did not allege ongoing violations for 

purposes of Article 32. 

As the written grievance contains an allegation of 

ongoing violations, the Arbitrator did not modify the 

issues presented in the grievance when he considered 

evidence of post-filing violations. Therefore, the Agency 

does not demonstrate the Arbitrator disregarded any 

limitations under Article 32, or resolved issues falling 

outside the scope of the framed issues.40 Further, the 

Agency does not cite any limitation on the Arbitrator’s 

authority to consider or find post-filing violations.41 For 

36 Id. at 11-12. 37 Award at 1. 38 Grievance Form at 1; Exceptions Br. at 7 n.2. 39 Exceptions Br. at 7 n.2. 40 See USDA, 73 FLRA at 684-85 (arbitrator did not exceed 

authority in framing issues to include matter raised in grievance 

denial); see, e.g., U.S. DOJ, Fed. BOP, Fed. Med. Ctr., 

Lexington, Ky., 68 FLRA 932, 942 (2015) (Member Pizzella 

concurring in part, dissenting in part on other grounds) (rejecting 

exceeded-authority exception where parties did not stipulate to 

issue and arbitrator determined grievance encompassed posts not 

specifically named in the grievance).

41 See SSA, Off. of Hearings Operations, 71 FLRA 589, 590 

(2020) (Member DuBester dissenting in part on other grounds) 

(denying exceeded-authority exception where excepting party 

“d[id] not identify an express contractual limitation on the 

[a]rbitrator’s authority”); U.S. DHS, U.S. CBP, 66 FLRA 838, 

844 (2012) (Member DuBester dissenting in part on other 

grounds) (rejecting claim that “[a]rbitrator disregarded specific 

limitations on his authority” by considering claims beyond a 

specific date because excepting party neither “cited any such 

express limitations” nor “established that the [a]rbitrator 

disregarded such limitations”). 
838 Decisions of the Federal Labor Relations Authority 73 FLRA No. 164

these reasons, the Agency does not demonstrate the 

Arbitrator exceeded his authority in these respects.42 

The Agency also asserts the Arbitrator exceeded 

his authority by awarding backpay for overtime on 

January 19, 2022, even though any claims regarding that 

date were “withdrawn” by the Union.43 To support this 

assertion, the Agency cites certain pages in the transcript 

and Union Exhibit 3.44 The cited documents pertain to 

overtime availability for perimeter-patrol overtime 

assignments.45 The record indicates the Union withdrew 

many of its claims regarding the perimeter-patrol overtime 

assignments listed in Union Exhibit 3.46 

However, in a separate exhibit, the Union 

presented evidence regarding complex-patrol overtime 

assignments. As relevant here, that evidence indicated that 

on January 19, 2022, a complex-patrol overtime 

assignment was available and the Agency skipped the 

grievant based on a “shift conflict.”47 The Union provided 

evidence that the grievant was off work that day, so there 

was no shift conflict.48 The grievant also testified he was 

not offered a complex-patrol overtime assignment that day 

and would have worked the shift if given the opportunity.49 

Therefore, the record demonstrates that, even after the 

Union withdrew its claim regarding any January 19, 2022 

perimeter-patrol overtime shift listed in Union Exhibit 3, 

an overtime assignment on that date was still before the 

Arbitrator. The Agency provides no basis for finding the 

Arbitrator exceeded his authority by awarding overtime 

for that date.50

We deny the Agency’s exceeded-authority 

exception.

IV. Decision

We deny the Agency’s exceptions.

42 BOP Guaynabo, 68 FLRA at 966-67 (where grievance alleged 

the agency “continue[d] to violate” prior awards remedying 

sexual harassment and framed issues included “how [the agency] 

ha[d] dealt with issues of sexual harassment,” arbitrator did not 

exceed authority by addressing agency’s “ten[-]year record . . . 

related to sexual harassment” based on arbitration testimony); see 

also NTEU, 73 FLRA 431, 434 (2023) (denying 

exceeded-authority exception where arbitrator’s resolution of an 

issue “flow[ed] from, and [was] directly responsive to” the 

framed issue (citing NAIL, Loc. 10, 71 FLRA 513, 515 (2020))). 

We note the Agency has not alleged that any claims in the 

grievance or addressed by the Arbitrator were untimely filed 

under the parties’ agreement, and does not challenge the award 

as failing to draw its essence from the parties’ agreement. 

43 Exceptions Br. at 10. 44 Id. 45 Exceptions, Attach. B, Tr. (Tr.) at 89-91. 46 Id. at 91 (indicating the shifts at issue in Union Exhibit 3 are 

limited to those marked with an asterisk); see Exceptions, 

Attach. E, Union Ex. 3 at 1-4 (no perimeter-patrol overtime 

assignments marked with an asterisk are dated January 19, 2022).

47 Opp’n at 3-5, 8; Opp’n, Union Ex. 5 at 2. 48 Tr. at 60. 49 Id. 50 USDA, 73 FLRA at 685 (citing Navy, 73 FLRA at 141-42).