794 Decisions of the Federal Labor Relations Authority 73 FLRA No. 156

73 FLRA No. 156

UNITED STATES 

DEPARTMENT OF VETERANS AFFAIRS

WINSTON-SALEM, NORTH CAROLINA

(Agency)

and

AMERICAN FEDERATION 

OF GOVERNMENT EMPLOYEES

LOCAL 25

(Union)

0-AR-5923

______

DECISION

February 20, 2024

_____

Before the Authority: Susan Tsui Grundmann,

Chairman, and Colleen Duffy Kiko, Member

I. Statement of the Case

Arbitrator Lana S. Flame issued an award 

(the merits award) finding the Agency violated the parties’ 

agreement by failing to take certain actions before initially 

denying the grievant a career-ladder promotion, which the 

Agency later granted. The Arbitrator awarded a 

make-whole remedy for the delayed promotion. The 

Arbitrator retained jurisdiction to resolve any disputes 

regarding the remedy. 

Subsequently, the Union asked the Arbitrator to 

clarify whether the merits award’s make-whole remedy 

included backpay for overtime opportunities the grievant 

was not eligible to work during the delayed-promotion 

period. In response, the Arbitrator issued a second award 

(the supplemental award), finding her retained jurisdiction 

covered the overtime issue and that her make-whole 

remedy included backpay for any overtime opportunities 

the grievant missed due to the Agency’s contract 

violations. 

The Agency filed exceptions to the supplemental 

award on exceeded-authority, fair-hearing, nonfact, and 

contrary-to-law grounds. For the reasons explained below, 

we deny the exceptions. 

1 Merits Award at 3. 

2 Exceptions, Ex. 15, Collective-Bargaining Agreement at 98. 

3

Id. at 99.

II. Background and Arbitrator’s Awards

The grievant is in a career-ladder position. On 

March 13, 2022, he would have been eligible for a 

career-ladder promotion, but did not receive it because of 

performance deficiencies. The grievant filed a grievance. 

Thereafter, he improved his performance and received his 

promotion on July 20, 2022. Nevertheless, the grievance 

proceeded to arbitration. 

The parties did not stipulate the issues, so the 

Arbitrator framed them in the merits award as follows: 

“Did the Agency violate Article 23 of the 

[parties’ a]greement? If so, what shall be the remedy?”1 

The Arbitrator specifically addressed Article 23, 

Sections 4.A.2. and 4.B. (Sections 4.A.2. and 4.B., 

respectively). Section 4.A.2. states: “If an employee is 

not meeting the criteria for promotion, the employee will 

be given a written notice at least [sixty] days prior to 

earliest date of promotion eligibility. The written notice 

will state what the employee needs to do to meet the 

promotion[-]plan criteria.”2 Section 4.B. pertinently 

states: “At any time a supervisor and/or employee 

recognize an employee’s need for assistance in meeting the 

career[-]ladder advancement criteria, the supervisor and 

employee will develop a plan tailored to assisting the 

employee in meeting the criteria.”3 

The Arbitrator found the grievant’s supervisor 

recognized, as early as October 2021, that the grievant was 

having performance deficiencies. The Arbitrator 

determined the Agency failed to give the grievant a written 

notice stating what he needed to do to meet his promotionplan criteria, and that the Agency should have given him 

this notice no later than January 12, 20224 – sixty days 

before the grievant was due for his promotion. 

Additionally, the Arbitrator found the Agency did not 

develop a plan tailored to assist the grievant in meeting his 

promotion-plan criteria. The Arbitrator concluded the 

Agency’s failure to take these actions violated 

Sections 4.A.2. and 4.B.

Further, the Arbitrator determined the Agency 

placed the grievant on a mentoring plan effective 

March 16, and that the Agency found he met the 

performance standards 126 days after that – on July 20. 

The Arbitrator concluded that, had the Agency put the 

grievant on the mentoring plan by January 12, he would 

have met the standards 126 days later – by May 18. 

Therefore, the Arbitrator found the grievant’s promotion 

should be backdated to May 18, and he should be “made 

whole for the period for which he has not been fully 

compensated or credited.”5 Citing the Back Pay Act 

4 The remaining dates in this section are from 2022 unless 

otherwise noted.

5 Merits Award at 18.
73 FLRA No. 156 Decisions of the Federal Labor Relations Authority 795

(BPA),6the Arbitrator found the Agency committed an 

unjustified or unwarranted personnel action that resulted 

in the reduction of the grievant’s pay. The Arbitrator 

found “the [g]rievant is entitled to be made whole for the 

specified period.”7

The Arbitrator retained jurisdiction “for the 

exclusive purpose of resolving any issue(s) pertaining to 

the order of remedy in this matter.”8 She also stated, “It is 

within the discretion of the Arbitrator to determine 

whether the issue(s) presented by the party or parties is 

within the jurisdiction of this provision pertaining to the 

retention of the Arbitrator’s jurisdiction.”9 She did not 

limit her retention of jurisdiction to any specific period of 

time.

More than thirty days after the merits award’s 

issuance, the Union asked the Arbitrator to clarify whether 

the make-whole remedy included backpay for lost 

overtime opportunities. The Union explained that the 

Agency did not permit employees to work overtime if they 

were not meeting their performance standards. Thus, the 

Union asked the Arbitrator whether the make-whole 

remedy included the overtime that the grievant was not 

eligible to work between May 18 and July 19 because of 

his performance deficiencies. In response, the Agency 

argued that the issue of missed overtime was not properly 

before the Arbitrator. According to the Arbitrator, the 

parties declined a hearing and “agreed to submit briefs 

regarding the issue of whether the payment of overtime is 

within the [merits award’s] make[-]whole remedy.”10

After the parties submitted briefs, the Arbitrator 

issued the supplemental award. In that award, the 

Arbitrator stated the issue as: “Does the ‘make[-]whole’ 

remedy awarded by the Arbitrator in the . . . [merits a]ward 

. . . include the payment of overtime?”11 The Arbitrator 

found: in the merits award, she “retained jurisdiction 

regarding [the] remedy”;12 the overtime issue was a 

dispute concerning the merits award’s make-whole 

remedy; backpay for missed overtime opportunities is a 

lawful remedy under the BPA; and the make-whole 

remedy “cover[ed] any reduction in pay[,] including 

[backpay] for the overtime hours the [g]rievant would have 

had the opportunity to work but for the Agency’s 

6 5 U.S.C. § 5596.

7 Merits Award at 18.

8

Id. at 19.

9

Id.

10 Supp. Award at 3. 

11 Id.

12 Id. at 7.

13 Id.

14 Id.

15 Id. at 8.

16 Exceptions Br. at 6-8.

contractual violation.”13 Thus, the Arbitrator found she 

had jurisdiction to resolve the overtime issue. 

The Arbitrator also found the Union submitted 

evidence demonstrating that “the [g]rievant would have 

had overtime hours available to him but for the unjustified 

or unwarranted personnel action[,] which resulted in 

depriving him of the opportunity.”14 However, the 

Arbitrator did not award any specific amounts of backpay. 

Instead, she “retain[ed] jurisdiction over the remedy to 

resolve any questions that may arise with respect to its 

application or interpretation.”15 

On October 18, 2023, the Agency filed 

exceptions to the supplemental award. The Union filed an 

opposition on November 14, 2023.

III. Analysis and Conclusions

A. The Arbitrator did not exceed her 

authority.

The Agency claims the Arbitrator exceeded her 

authority in several respects.16 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.17 

First, the Agency argues the Arbitrator exceeded 

her authority by issuing the supplemental award because 

she was “functus officio” and without jurisdiction to 

resolve the overtime issue.18 Under the functus-officio 

doctrine, once an arbitrator resolves matters submitted to 

arbitration, the arbitrator is generally without further 

authority unless they retain jurisdiction or receive 

permission from the parties.19 However, the Authority has 

long held that arbitrators may retain jurisdiction over a 

case to oversee the implementation of remedies.20 Where 

an arbitrator expressly retains jurisdiction to resolve 

disputes over interpretation or implementation of a 

remedy, the arbitrator may issue supplemental awards 

resolving such disputes.21 

17 AFGE, Loc. 2338, 73 FLRA 522, 523 (2023) (Loc. 2338); 

Fraternal Ord. of Police, DC Lodge 1, 73 FLRA 408, 411 (2023) 

(Police).

18 Exceptions Br. at 7-8. 

19 U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Ashland, Ky., 73 FLRA 

376, 377 (2022) (BOP Ashland); U.S. DOJ, Fed. BOP, 

Fed. Corr. Inst., Guaynabo, P.R., 72 FLRA 636, 637 (2022) 

(BOP Guaynabo) (Member Abbott dissenting).

20 BOP Ashland, 73 FLRA at 377.

21 U.S. Dep’t of Transp., FAA, Wash., D.C., 65 FLRA 950, 954 

(2011) (citing AFGE, Loc. 1156 & Laborers Int’l Union, 

Loc. 1170, 57 FLRA 602, 603 (2001)).
796 Decisions of the Federal Labor Relations Authority 73 FLRA No. 156

As discussed above, in the merits award, the 

Arbitrator found the grievant was “entitled to be made 

whole.”22 The Arbitrator expressly retained jurisdiction to 

“resolv[e] any issue(s) pertaining to the order of remedy in 

this matter,”23 and stated it was “within [her] discretion 

. . . to determine whether [any] issue(s) presented by the 

. . . parties [was] within” her retained jurisdiction.24 By 

addressing whether her initial make-whole remedy 

encompassed any compensation for missed overtime 

opportunities, the Arbitrator was merely exercising her 

retained discretion. Therefore, she was not functus officio, 

and did not exceed her authority, by addressing that 

issue.25

Second, the Agency argues the Arbitrator 

exceeded her authority in the supplemental award because 

the issue of backpay for missed overtime opportunities was 

never submitted at arbitration.26 When parties do not 

stipulate to the issues, arbitrators have the discretion to 

frame them,27 and the Authority accords the arbitrator’s 

formulation substantial deference.28 Where an arbitrator 

has framed the issues, the Authority examines only 

whether the award is directly responsive to the issues as 

framed by the arbitrator.29 

The parties did not stipulate to the issues before 

the Arbitrator in the merits award, so she framed the issues 

as including whether the Agency violated the parties’ 

agreement and, if so, “what shall be the remedy?”30 The 

Arbitrator’s resolution of the overtime issue was directly 

responsive to that issue. Consequently, she did not exceed 

her authority by resolving it.31 

Third, the Agency contends the Arbitrator 

exceeded her authority by failing to identify or address the 

statutory requirements for payment of overtime. 

Specifically, the Agency asserts the award is deficient 

because it does not reference a time period, number of 

hours, or any provision of the parties’ agreement that 

entitled the grievant to overtime.32 However, as noted 

above, the Arbitrator did not actually award the grievant 

specific amounts of overtime; she merely found her 

make-whole remedy included “any reduction in pay[,] 

including [backpay] for the overtime hours the [g]rievant 

would have had the opportunity to work but for the 

22 Merits Award at 18. 

23 Id. at 19.

24 Id.

25 See, e.g., BOP Guaynabo, 72 FLRA at 637 (where original 

arbitrator retained jurisdiction but was unavailable, subsequent 

arbitrator did not exceed her authority because she properly 

exercised original arbitrator’s retained jurisdiction). 

26 Exceptions Br. at 7.

27 Loc. 2338, 73 FLRA at 523; Police, 73 FLRA at 411. 

28 Loc. 2338, 73 FLRA at 523.

29 Id.

30 Merits Award at 3. 

Agency’s contractual violation.”33 Further, as discussed in 

Section III.D. below, the Agency does not demonstrate 

that the supplemental award conflicts with the BPA. 

Therefore, the Agency’s contention provides no basis for 

finding the Arbitrator exceeded her authority. 

We deny the Agency’s exceeded-authority 

exceptions.

B. The Arbitrator did not deny the Agency 

a fair hearing. 

The Agency argues the Arbitrator denied it a fair 

hearing by affording the Union – but not the Agency – an 

opportunity to present evidence on the “newly raised” 

overtime issue.34 An award will be found deficient on the 

ground that an arbitrator failed to provide a fair hearing 

where a party demonstrates that the arbitrator refused to 

hear or consider pertinent and material evidence, or that 

other actions in conducting the proceeding so prejudiced a 

party as to affect the fairness of the proceeding as a 

whole.35 

The Agency argues the Arbitrator denied it a fair 

hearing by considering, and allowing the Union to 

introduce evidence regarding, an issue – overtime – that 

was not submitted at arbitration.36 However, as discussed 

in Section III.A. above, the Arbitrator had authority to 

resolve the overtime issue. Although the Agency claims 

the Arbitrator did not allow the Agency to introduce 

evidence or rebut the Union’s arguments and evidence,37

the Agency does not cite any record evidence that supports 

these claims. Moreover, the Agency does not dispute the 

Arbitrator’s statement that both parties 

“declined a hearing” on the overtime issue.38 

Additionally, as discussed above, the Arbitrator did not 

award any specific amounts of backpay; she merely, once 

again, retained jurisdiction over remedial issues. Nothing 

in the supplemental award forecloses the Agency from 

disputing any Union claims about the grievant’s 

entitlement to specific amounts of backpay in any future 

remedial proceedings. For these reasons, the Agency’s 

arguments do not demonstrate the Arbitrator refused to 

hear or consider pertinent and material evidence, or that 

other actions in conducting the proceeding so prejudiced 

31 See, e.g., Loc. 2338, 73 FLRA at 523 (denying 

exceeded-authority exception where the award was directly 

responsive to the issues as framed by the arbitrator).

32 Exceptions Br. at 7.

33 Supp. Award at 7 (emphasis added).

34 Exceptions Br. at 9-10.

35 AFGE Loc. 4156, 73 FLRA 588, 589 (2023) (Loc. 4156); 

U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., 

Poplar Bluff, Mo., 73 FLRA 498, 503 (2023) (Poplar Bluff).

36 Exceptions Br. at 9. 

37 Id. at 9-10.

38 Supp. Award at 3.
73 FLRA No. 156 Decisions of the Federal Labor Relations Authority 797

the Agency as to affect the fairness of the proceeding as a 

whole. Thus, these claims do not demonstrate the 

Arbitrator deprived the Agency of a fair hearing.39

We deny the fair-hearing exceptions.

C. The award is not based on a nonfact. 

The Agency argues the award is based on a 

nonfact.40 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.41 

Arguments based on a misunderstanding of an award do 

not demonstrate that an award is based on nonfacts.42

The Agency argues the supplemental award is 

based on the nonfact that the “[g]rievant was ready, 

willing, and able to work overtime hours and would have 

been assigned to complete overtime.”43 However, the 

Arbitrator did not make those findings. Rather, as stated 

previously, she merely found her make-whole remedy 

included “any reduction in pay[,] including [backpay] for 

the overtime hours the [g]rievant would have had the 

opportunity to work but for the Agency’s contractual 

violation,”44 and that the Union submitted evidence 

demonstrating “the [g]rievant would have had overtime 

hours available to him but for the unjustified or 

unwarranted personnel action[,] which resulted in 

depriving him of the opportunity.”45 Thus, the Agency’s 

argument is based on a misunderstanding of the award. As 

such, it does not demonstrate the award is based on a 

nonfact, and we deny the nonfact exception.46

D. The supplemental award is not contrary 

to law. 

The Agency argues the award is contrary to law.47 

When resolving a contrary-to-law exception, the Authority 

reviews any question of law raised by the exception and 

the award de novo.48 Applying a de novo standard of 

review, the Authority assesses whether the arbitrator’s 

legal conclusions are consistent with the applicable 

standard of law.49 In making that assessment, the 

Authority defers to the arbitrator’s underlying factual 

39 Loc. 4156, 73 FLRA at 589; Poplar Bluff, 73 FLRA at 503.

40 Exceptions Br. at 8-9. 

41 NTEU, Chapter 46, 73 FLRA 654, 656 (2023); AFGE, 

Loc. 3601, 73 FLRA 515, 517 (2023) (Loc. 3601). 

42 Loc. 3601, 73 FLRA at 517.

43 Exceptions Br. at 8-9. 

44 Supp. Award at 7 (emphasis added).

45 Id. (emphasis added).

46 See, e.g., Loc. 3601, 73 FLRA at 517.

47 Exceptions Br. at 4-6. 

48 AFGE, Loc. 2338, 73 FLRA 756, 758 (2023) (AFGE).

findings unless the excepting party establishes they are 

nonfacts.50

According to the Agency, the Union had only 

thirty days from receipt of the merits award to either seek 

clarification from the Arbitrator or to file exceptions 

challenging the merits award’s failure to address the 

overtime issue.51 Because the Union waited more than 

thirty days to seek clarification from the Arbitrator, the 

Agency claims the merits award became final, and the 

supplemental award is contrary to law.52 For support, the 

Agency cites § 7122(b) of the Federal Service 

Labor-Management Relations Statute (the Statute)53 and 

the Authority’s decisions in AFGE, Council 243

(Council 243)

54 and AFGE, Local 1760 (Local 1760).55

 

Section 7122(b) of the Statute pertinently 

provides, “If no exception to an arbitrator’s award is filed 

. . . during the [thirty]-day period beginning on the date the 

award is served on the party, the award shall be final and 

binding.”56 In Council 243, the Authority found a party’s 

exceptions untimely where: the party asked an arbitrator 

to clarify his award; the arbitrator responded but did not 

modify the award in any way; and the party then filed 

exceptions more than thirty days after the award.57 In 

Local 1760, the Authority held that an arbitrator’s 

retention of jurisdiction to resolve questions or problems 

that might arise concerning the award “does not render an 

award interlocutory.”58 

As noted previously, in the merits award, the 

Arbitrator did not limit her retention of jurisdiction to any 

specific period of time. Further, none of the cited 

authorities precludes an arbitrator from exercising retained 

jurisdiction after thirty days. As such, the cited authorities 

provide no basis for finding the Arbitrator’s supplemental 

award contrary to law. 

The Agency also claims the supplemental award 

is contrary to the BPA because the grievance did not raise 

the overtime issue and the Arbitrator failed to make the 

requisite findings that would entitle the grievant to 

backpay.59 In this regard, the Agency argues the 

supplemental award lacks specific findings that 

demonstrate “the grievant was ready, willing, and able to 

work overtime or that there was available overtime to 

49 Id.

50 Id.

51 Exceptions Br. at 4.

52 Id. at 4-5. 

53 5 U.S.C. § 7122(b).

54 67 FLRA 96 (2012).

55 37 FLRA 1193 (1990).

56 5 U.S.C. § 7122(b).

57 67 FLRA at 96-97.

58 37 FLRA at 1200.

59 Exceptions Br. at 5-6.
798 Decisions of the Federal Labor Relations Authority 73 FLRA No. 156

work.”60 The Agency also contends arbitrators may not 

award premium pay for overtime under the Fair Labor 

Standards Act (FLSA)61 or the Federal Employees Pay Act 

(FEPA)62 unless the statutory conditions are met, and that, 

under U.S. Department of HHS, SSA, Baltimore, Maryland

(SSA),63 employees must establish “the performance of 

claimed work and its duration.”64 According to the 

Agency, the Union cannot do so here.65

With respect to the Agency’s claim that the 

overtime issue was not raised in the grievance, as 

discussed in Section III.A. above, we find the Arbitrator 

did not exceed her authority by resolving the overtime 

issue. The Agency does not cite any support for the notion 

that, as a matter of law, the grievance needed to 

specifically mention the overtime issue in order for the 

Arbitrator to include overtime in her backpay remedy. 

Thus, the Agency’s claim provides no basis for finding the 

award contrary to law.

As for the Agency’s claim that the Arbitrator 

failed to make the requisite findings to award backpay 

under the BPA, as discussed above, the Arbitrator did not 

find the grievant was entitled to specific amounts of 

backpay – and nothing in the supplemental award 

forecloses the Agency from disputing the grievant’s 

entitlement to specific amounts in any future remedial 

proceedings. However, with regard to the Agency’s claim 

that the supplemental award lacks specific findings that 

demonstrate there was overtime available to work, the 

Arbitrator – relying on evidence submitted by the Union –

expressly found to the contrary.66 Because the Agency 

does not argue that finding was based on a nonfact, we 

defer to that finding in assessing whether the supplemental 

award is contrary to law.67 For these reasons, the Agency’s 

claims provide no basis for finding the supplemental award 

is contrary to law.68

Finally, with respect to the Agency’s reliance on 

the FLSA and the FEPA, this case does not involve 

entitlement to overtime pay, for work actually performed, 

under those statutes. Rather, it involves whether the BPA

authorizes backpay for missed overtime opportunities. 

Under the BPA, an employee who did not actually work 

overtime may receive backpay if an arbitrator finds a 

60 Id. at 5. 

61 29 U.S.C. §§ 201-219.

62 5 U.S.C. § 5545.

63 37 FLRA 1469 (1990).

64 Exceptions Br. at 6.

65 Id.

66 Supp. Award at 7.

67 AFGE, 73 FLRA at 758.

contractual violation resulted in the employee’s failure to 

work overtime.69 Thus, the fact that the grievant did not 

actually work overtime is immaterial for any potential 

backpay recovery under the BPA. As for the Agency’s 

reliance on SSA, the cited part of that case involved 

5 U.S.C. § 5542’s standards for establishing entitlement to 

overtime compensation for at-home work allegedly 

performed after the normal tour of duty;70 it did not involve 

backpay for missed overtime under the BPA. 

Consequently, the Agency’s reliance on that decision also 

is misplaced. 

 

In sum, the Agency does not demonstrate the 

award is contrary to law. Accordingly, we deny the 

contrary-to-law exceptions.

IV. Decision

We deny the Agency’s exceptions. 

68 See, e.g., U.S. DHS, U.S. CBP, 67 FLRA 461, 464 (2014) 

(where “overtime compensation itself ha[d] not yet been 

provided, . . . arguments that the [a]rbitrator awarded backpay 

contrary to the [BPA] [were] misplaced, and . . . [did] not show[] 

that the award [was] contrary to the [BPA]”); U.S. Dep’t of the 

Army, Fort Carson, Colo., 65 FLRA 565, 567 (2011) (finding 

award was not contrary to BPA where it did “not provide that the 

grievant be compensated for any losses not actually sustained as 

a result of the [a]gency’s unjustified action”).

69 AFGE, Loc. 1034, 68 FLRA 718, 720 (2015) 

(Member DuBester dissenting in part on other grounds).

70 37 FLRA at 1477-79.